Delaware
|
06-1515824
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer Identification Number)
|
|
incorporation
or organization)
|
(Number
of Shares Outstanding
|
||
(Title of Class)
|
as of February 2, 2010)
|
|
Common
Stock, par value $0.01 per share
|
31,538,727
|
|
Part
I - FINANCIAL INFORMATION
|
1
|
|
Item
1.
|
Interim
Condensed Consolidated Financial Statements
|
1
|
Condensed
Consolidated Balance Sheets
|
1
|
|
Condensed
Consolidated Statements of Operations
|
2
|
|
Condensed
Consolidated Statements of Cash Flows
|
3
|
|
Notes
to Condensed Consolidated Financial Statements
|
4
|
|
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
19
|
Item
3.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
29
|
Item
4.
|
Controls
and Procedures
|
29
|
PART
II - OTHER INFORMATION
|
30
|
|
Item
1.
|
Legal
Proceedings
|
30
|
Item
1A.
|
Risk
Factors
|
32
|
Item
2.
|
Unregistered
Sales of Equity Securities and Use of Proceeds
|
32
|
Item
3.
|
Defaults
Upon Senior Securities
|
32
|
Item
4.
|
Submission
of Matters to a Vote of Security Holders
|
32
|
Item
5.
|
Other
Information
|
33
|
Item
6.
|
Exhibits
|
34
|
SIGNATURES
|
35
|
June 30, 2009
|
December 31, 2008
|
|||||||
(Unaudited)
|
(As
Restated - Note 1)
|
|||||||
assets
|
||||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents
|
$ | 63,411,600 | $ | 72,441,294 | ||||
Restricted
cash
|
500,000 | 516,951 | ||||||
Marketable
securities
|
799,031 | - | ||||||
Accounts
receivable, net of allowance for doubtful accounts of $100,436 as of June
30, 2009 and $531,092 as of December 31, 2008
|
5,090,863 | 11,167,297 | ||||||
Other
receivables
|
495,954 | 647,596 | ||||||
Deferred
taxes
|
- | 2,546,743 | ||||||
Prepaid
expenses and other current assets
|
2,174,219 | 1,884,247 | ||||||
Assets
held for sale
|
4,679,939 | - | ||||||
Total
current assets
|
77,151,606 | 89,204,128 | ||||||
Property
and equipment, net of accumulated depreciation and amortization of
$11,671,141 as of June 30, 2009 and $11,250,569 as of December 31,
2008
|
8,547,244 | 9,672,779 | ||||||
Marketable
securities
|
15,692,510 | 1,658,178 | ||||||
Long
term investment
|
555,000 | 2,042,970 | ||||||
Other
assets
|
81,610 | 122,197 | ||||||
Goodwill
|
20,181,000 | 40,024,076 | ||||||
Other
intangibles, net
|
8,359,945 | 13,630,900 | ||||||
Deferred
taxes
|
- | 13,570,047 | ||||||
Restricted
cash
|
1,660,371 | 1,762,079 | ||||||
Total
assets
|
$ | 132,229,286 | $ | 171,687,354 | ||||
liabilities
and stockholders’ equity
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable
|
$ | 1,786,259 | $ | 280,469 | ||||
Accrued
expenses
|
5,247,683 | 2,784,902 | ||||||
Deferred
revenue
|
16,285,222 | 16,495,712 | ||||||
Other
current liabilities
|
132,300 | 205,838 | ||||||
Liabilities
of discontinued operations
|
231,955 | 225,925 | ||||||
Liabilities
held for sale
|
2,203,015 | - | ||||||
Total
current liabilities
|
25,886,434 | 19,992,846 | ||||||
Other
liabilities
|
541,532 | 79,896 | ||||||
Total
liabilities
|
26,427,966 | 20,072,742 | ||||||
Stockholders’
Equity
|
||||||||
Preferred
stock; $0.01 par value; 10,000,000 shares authorized; 5,500 issued and
outstanding as of June 30, 2009 and December 31, 2008; the aggregate
liquidation preference totals $55,000,000 as of June 30, 2009 and December
31, 2008
|
55 | 55 | ||||||
Common
stock; $0.01 par value; 100,000,000 shares authorized; 36,598,461 shares
issued and 30,620,942 shares outstanding as of June 30, 2009, and
36,262,546 shares issued and 30,378,894 shares outstanding as of December
31, 2008
|
365,985 | 362,625 | ||||||
Additional
paid-in capital
|
270,955,796 | 271,271,574 | ||||||
Accumulated
other comprehensive loss
|
(202,104 | ) | (290,000 | ) | ||||
Treasury
stock at cost; 5,977,519 shares as of June 30, 2009 and 5,883,652 shares
as of December 31, 2008
|
(10,130,571 | ) | (9,900,284 | ) | ||||
Accumulated
deficit
|
(155,187,841 | ) | (109,829,358 | ) | ||||
Total
stockholders’ equity
|
105,801,320 | 151,614,612 | ||||||
Total
liabilities and stockholders’ equity
|
$ | 132,229,286 | $ | 171,687,354 |
For the Three Months Ended
June 30,
|
For the Six Months Ended
June 30,
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
(As
Restated -
Note
1)
|
(As
Restated -
Note
1)
|
|||||||||||||||
(unaudited)
|
(unaudited)
|
|||||||||||||||
Net
revenue:
|
||||||||||||||||
Premium
services
|
$ | 9,428,936 | $ | 10,289,939 | $ | 18,936,377 | $ | 21,049,408 | ||||||||
Marketing
services
|
5,563,305 | 8,113,882 | 9,556,326 | 15,346,439 | ||||||||||||
Total
net revenue
|
14,992,241 | 18,403,821 | 28,492,703 | 36,395,847 | ||||||||||||
Operating
expense:
|
||||||||||||||||
Cost
of services
|
7,264,697 | 8,320,717 | 15,510,407 | 15,931,406 | ||||||||||||
Sales
and marketing
|
2,785,929 | 3,630,394 | 5,762,836 | 7,393,989 | ||||||||||||
General
and administrative
|
3,430,233 | 4,078,822 | 7,971,911 | 8,434,367 | ||||||||||||
Depreciation
and amortization
|
1,207,710 | 1,584,780 | 2,678,447 | 2,848,384 | ||||||||||||
Impairment
charges
|
- | - | 24,137,069 | - | ||||||||||||
Restructuring
and other charges
|
574,281 | - | 2,558,810 | - | ||||||||||||
Total
operating expense
|
15,262,850 | 17,614,713 | 58,619,480 | 34,608,146 | ||||||||||||
Operating (loss)
income
|
(270,609 | ) | 789,108 | (30,126,777 | ) | 1,787,702 | ||||||||||
Net
interest income
|
359,417 | 400,243 | 589,554 | 1,086,437 | ||||||||||||
Gain
on sales of marketable securities
|
260,746 | - | 260,746 | - | ||||||||||||
Other
income
|
- | - | 153,677 | - | ||||||||||||
Income
(loss) from continuing operations before income taxes
|
349,554 | 1,189,351 | (29,122,800 | ) | 2,874,139 | |||||||||||
Provision
for income taxes
|
- | 125,693 | 16,227,077 | 271,621 | ||||||||||||
Income
(loss) from continuing operations
|
349,554 | 1,063,658 | (45,349,877 | ) | 2,602,518 | |||||||||||
Discontinued
operations:
|
||||||||||||||||
Loss
from discontinued operations
|
9,532 | 2,085 | 8,607 | 4,816 | ||||||||||||
Net
income (loss)
|
340,022 | 1,061,573 | (45,358,484 | ) | 2,597,702 | |||||||||||
Preferred
stock cash dividends
|
96,424 | 96,424 | 192,848 | 192,848 | ||||||||||||
Net
income (loss) attributable to common stockholders
|
$ | 243,598 | $ | 965,149 | $ | (45,551,332 | ) | $ | 2,404,854 | |||||||
Basic
net income (loss) per share
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.01 | $ | 0.03 | $ | (1.48 | ) | $ | 0.09 | |||||||
Loss from
discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss)
|
0.01 | 0.03 | (1.48 | ) | 0.09 | |||||||||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | (0.01 | ) | (0.01 | ) | ||||||||
Net
income (loss) attributable to common stockholders
|
$ | 0.01 | $ | 0.03 | $ | (1.49 | ) | $ | 0.08 | |||||||
Diluted
net income (loss) per share
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.01 | $ | 0.03 | $ | (1.48 | ) | $ | 0.07 | |||||||
Loss from
discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss)
|
0.01 | 0.03 | (1.48 | ) | 0.07 | |||||||||||
Preferred
stock cash dividends
|
(0.00 | ) | - | (0.01 | ) | - | ||||||||||
Net
income (loss) attributable to common stockholders
|
$ | 0.01 | $ | 0.03 | $ | (1.49 | ) | $ | 0.07 | |||||||
Weighted
average basic shares outstanding
|
30,620,349 | 30,452,497 | 30,558,170 | 30,422,738 | ||||||||||||
Weighted
average diluted shares outstanding
|
30,620,349 | 34,597,480 | 30,558,170 | 34,647,940 |
For the Six Months Ended June 30,
|
||||||||
2009
|
2008
|
|||||||
(As
Restated -
Note
1)
|
||||||||
(unaudited)
|
||||||||
Cash Flows from Operating Activities: | ||||||||
Net
(loss) income
|
$ | (45,358,483 | ) | $ | 2,597,702 | |||
Loss
from discontinued operations
|
8,607 | 4,816 | ||||||
(Loss)
income from continuing operations
|
(45,349,876 | ) | 2,602,518 | |||||
Adjustments
to reconcile income from continuing operations to net cash provided by
operating activities:
|
||||||||
Stock-based
compensation expense
|
1,585,594 | 1,653,132 | ||||||
Provision
for doubtful accounts
|
84,683 | 125,000 | ||||||
Depreciation
and amortization
|
2,678,447 | 2,848,384 | ||||||
Valuation
allowance on deferred taxes
|
16,116,790 | - | ||||||
Impairment
charges
|
24,137,069 | - | ||||||
Restructuring
and other charges
|
428,868 | - | ||||||
Deferred
rent
|
627,969 | 60,726 | ||||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
3,707,244 | (245,882 | ) | |||||
Other
receivables
|
99,834 | (324 | ) | |||||
Prepaid
expenses and other current assets
|
(563,029 | ) | (833,482 | ) | ||||
Other
assets
|
(3,544 | ) | 50,966 | |||||
Accounts
payable
|
1,565,588 | 76,505 | ||||||
Accrued
expenses
|
2,290,726 | (1,814,538 | ) | |||||
Deferred
revenue
|
1,510,331 | 1,946,062 | ||||||
Other
current liabilities
|
181,853 | 175,764 | ||||||
Other
liabilities
|
(29,034 | ) | (30,739 | ) | ||||
Net
cash provided by continuing operations
|
9,069,513 | 6,614,092 | ||||||
Net
cash used in discontinued operations
|
(2,577 | ) | (13,133 | ) | ||||
Net
cash provided by operating activities
|
9,066,936 | 6,600,959 | ||||||
Cash
Flows from Investing Activities:
|
||||||||
Purchase
of marketable securities
|
(24,137,379 | ) | - | |||||
Sale
of marketable securities
|
9,391,912 | - | ||||||
Business
combinations, net of cash received
|
- | (106,252 | ) | |||||
Long
term investment
|
- | (1,392,976 | ) | |||||
Capital
expenditures
|
(1,346,946 | ) | (2,119,361 | ) | ||||
Proceeds
from the sale of fixed assets
|
- | 28,153 | ||||||
Net
cash used in investing activities
|
(16,092,413 | ) | (3,590,436 | ) | ||||
Cash
Flows from Financing Activities:
|
||||||||
Proceeds
from the exercise of stock options
|
- | 588,874 | ||||||
Costs
associated with the sale of preferred stock
|
- | (125,000 | ) | |||||
Cash
dividends paid on common stock
|
(1,581,082 | ) | (1,542,871 | ) | ||||
Cash
dividends paid on preferred stock
|
(192,848 | ) | (289,272 | ) | ||||
Restricted
cash
|
- | (41,709 | ) | |||||
Purchase
of treasury stock
|
(230,287 | ) | (325,729 | ) | ||||
Net
cash used in financing activities
|
(2,004,217 | ) | (1,735,707 | ) | ||||
Net
(decrease) increase in cash and cash equivalents
|
(9,029,694 | ) | 1,274,816 | |||||
Cash
and cash equivalents, beginning of period
|
72,441,294 | 79,170,754 | ||||||
Cash
and cash equivalents, end of period
|
$ | 63,411,600 | $ | 80,445,570 | ||||
Supplemental disclosures of cash flow
information:
|
||||||||
Cash
payments made for interest
|
$ | 4,583 | $ | 25,057 | ||||
Cash
payments made for income taxes
|
$ | 322,395 | $ | 488,523 |
1.
|
DESCRIPTION
OF THE BUSINESS AND BASIS OF
PRESENTATION
|
Unaudited
|
||||||||||||
For the Three Months Ended June 30, 2008
|
||||||||||||
As Filed
|
Adjustment
|
As Restated
|
||||||||||
Net
revenue:
|
||||||||||||
Paid
services
|
$ | 10,289,939 | $ | - | $ | 10,289,939 | ||||||
Marketing
services
|
9,398,992 | (1,285,110 | ) | 8,113,882 | ||||||||
Total
net revenue
|
19,688,931 | (1,285,110 | ) | 18,403,821 | ||||||||
Operating
expense:
|
||||||||||||
Cost
of services
|
8,366,156 | (45,439 | ) | 8,320,717 | ||||||||
Sales
and marketing
|
3,630,394 | - | 3,630,394 | |||||||||
General
and administrative
|
4,078,822 | - | 4,078,822 | |||||||||
Depreciation
and amortization
|
1,584,780 | - | 1,584,780 | |||||||||
Total
operating expense
|
17,660,152 | (45,439 | ) | 17,614,713 | ||||||||
Operating
income
|
2,028,779 | (1,239,671 | ) | 789,108 | ||||||||
Net
interest income
|
400,243 | - | 400,243 | |||||||||
Income
from continuing operations before income taxes
|
2,429,022 | (1,239,671 | ) | 1,189,351 | ||||||||
Provision
for income taxes
|
125,693 | - | 125,693 | |||||||||
Income
from continuing operations
|
2,303,329 | (1,239,671 | ) | 1,063,658 | ||||||||
Discontinued
operations:
|
||||||||||||
Loss
from discontinued operations
|
2,085 | - | 2,085 | |||||||||
Net
income
|
2,301,244 | (1,239,671 | ) | 1,061,573 | ||||||||
Preferred
stock cash dividends
|
96,424 | - | 96,424 | |||||||||
Net
income attributable to common stockholders
|
$ | 2,204,820 | $ | (1,239,671 | ) | $ | 965,149 | |||||
Basic
net income per share:
|
||||||||||||
Income
from continuing operations
|
$ | 0.07 | $ | 0.03 | ||||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income
|
0.07 | 0.03 | ||||||||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income attributable to common stockholders
|
$ | 0.07 | $ | 0.03 | ||||||||
Diluted
net income per share:
|
||||||||||||
Income
from continuing operations
|
$ | 0.07 | $ | 0.03 | ||||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income
|
0.07 | 0.03 | ||||||||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income attributable to common stockholders
|
$ | 0.07 | $ | 0.03 | ||||||||
Weighted
average basic shares outstanding
|
30,452,497 | 30,452,497 | ||||||||||
Weighted
average diluted shares outstanding
|
34,597,480 | 34,597,480 |
Unaudited
|
||||||||||||
For the Six Months Ended June 30, 2008
|
||||||||||||
As Filed
|
Adjustment
|
As Restated
|
||||||||||
Net
revenue:
|
||||||||||||
Paid
services
|
$ | 21,049,408 | $ | - | $ | 21,049,408 | ||||||
Marketing
services
|
17,587,508 | (2,241,069 | ) | 15,346,439 | ||||||||
Total
net revenue
|
38,636,916 | (2,241,069 | ) | 36,395,847 | ||||||||
Operating
expense:
|
||||||||||||
Cost
of services
|
16,022,283 | (90,878 | ) | 15,931,406 | ||||||||
Sales
and marketing
|
7,393,989 | - | 7,393,989 | |||||||||
General
and administrative
|
8,434,367 | - | 8,434,367 | |||||||||
Depreciation
and amortization
|
2,848,384 | - | 2,848,384 | |||||||||
Total
operating expense
|
34,699,023 | (90,878 | ) | 34,608,146 | ||||||||
Operating
income
|
3,937,893 | (2,150,191 | ) | 1,787,702 | ||||||||
Net
interest income
|
1,086,437 | - | 1,086,437 | |||||||||
Income
from continuing operations before income taxes
|
5,024,330 | (2,150,191 | ) | 2,874,139 | ||||||||
Provision
for income taxes
|
271,621 | 271,621 | ||||||||||
Income
from continuing operations
|
4,752,709 | (2,150,191 | ) | 2,602,518 | ||||||||
Discontinued
operations:
|
||||||||||||
Loss
from discontinued operations
|
4,816 | - | 4,816 | |||||||||
Net
income
|
4,747,893 | (2,150,191 | ) | 2,597,702 | ||||||||
Preferred
stock cash dividends
|
192,848 | - | 192,848 | |||||||||
Net
income attributable to common stockholders
|
$ | 4,555,045 | $ | (2,150,191 | ) | $ | 2,404,854 | |||||
Basic
net income per share:
|
||||||||||||
Income
from continuing operations
|
$ | 0.16 | $ | 0.09 | ||||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income
|
0.16 | 0.09 | ||||||||||
Preferred
stock cash dividends
|
(0.01 | ) | (0.01 | ) | ||||||||
Net
income attributable to common stockholders
|
$ | 0.15 | $ | 0.08 | ||||||||
Diluted
net income per share:
|
||||||||||||
Income
from continuing operations
|
$ | 0.14 | $ | 0.07 | ||||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | ||||||||
Net
income
|
0.14 | 0.07 | ||||||||||
Preferred
stock cash dividends
|
- | - | ||||||||||
Net
income attributable to common stockholders
|
$ | 0.14 | $ | 0.07 | ||||||||
Weighted
average basic shares outstanding
|
30,422,738 | 30,422,738 | ||||||||||
Weighted
average diluted shares outstanding
|
34,647,940 | 34,647,940 |
2.
|
MARKETABLE
SECURITIES
|
3.
|
FAIR
VALUE MEASUREMENTS
|
•
|
Level
1: Inputs are quoted market prices in active markets for identical
assets or liabilities (these are observable market
inputs).
|
•
|
Level
2: Inputs are inputs other than quoted prices included within Level 1
that are observable for the asset or liability (includes quoted market
prices for similar assets or identical or similar assets in markets in
which there are few transactions, prices that are not current or vary
substantially).
|
•
|
Level
3: Inputs are unobservable inputs that reflect the entity’s own
assumptions in pricing the asset or liability (used when little or no
market data is available).
|
Description:
|
Total
|
Level 1
|
Level 2
|
Level 3
|
||||||||||||
Cash
and cash equivalents (1)
|
$ | 63,411,600 | $ | 63,411,600 | $ | — | $ | — | ||||||||
Marketable
securities (2)
|
16,491,541 | 14,881,541 | — | 1,610,000 | ||||||||||||
Long
term investment (3)
|
555,000 | — | — | 555,000 | ||||||||||||
Total
at fair value
|
$ | 80,458,141 | $ | 78,293,141 | $ | — | $ | 2,165,000 |
|
(1)
|
Cash
and cash equivalents, totaling $63,411,600, consists primarily of money
market funds and checking accounts for which we determine fair value
through quoted market prices.
|
|
(2)
|
Marketable
securities consist of corporate floating rate notes for which we determine
fair value through quoted market prices. Marketable securities
also consist of two municipal ARS issued by the District of Columbia.
Historically, the fair value of ARS investments approximated par value due
to the frequent resets through the auction process. Due to recent events
in credit markets, the auction events, which historically have provided
liquidity for these securities, have been unsuccessful. The
result of a failed auction is that these ARS holdings will continue to pay
interest in accordance with their terms at each respective auction date;
however, liquidity of the securities will be limited until there is a
successful auction, the issuer redeems the securities, the securities
mature or until such time as other markets for these ARS holdings develop.
For each of our ARS, we evaluate the risks related to the structure,
collateral and liquidity of the investment, and forecast the probability
of issuer default, auction failure and a successful auction at par, or a
redemption at par, for each future auction period. Temporary
impairment charges are recorded in accumulated other comprehensive income,
whereas other-than-temporary impairment charges are recorded in our
statement of operations. As of December 31, 2008, the Company
determined there was a decline in the fair value of its ARS investments of
$290,000, which was deemed temporary and was included within accumulated
other comprehensive income. The Company used a discounted cash
flow model to determine the estimated fair value of its investment in
ARS. The assumptions used in preparing the discounted cash flow
model include estimates for interest rate, timing and amount of cash flows
and expected holding period of ARS. Based upon an
updated assessment as of June 30, 2009, it was concluded that there was no
material change in the fair value of the ARS
investments.
|
|
(3)
|
Long
term investment consists of an investment in Debtfolio, Inc., doing
business as Geezeo, a Web-based personal finance site. The
investment totaled $1,850,000 for an 18.5% ownership
stake. Additionally, the Company incurred approximately $0.2
million of legal fees in connection with this investment. The Company
retained the option to purchase the company based on an equity value of
$12 million at any point prior to April 23, 2009, but did not exercise the
option. During the first quarter of 2009, the carrying value of
the Company’s investment was written down to fair value based upon an
estimate of the market value of the Company’s equity. The
impairment charge approximated $1.5 million. There have been no
additional events during the three months ended June 30, 2009 that would
indicate any additional impairment.
|
Marketable
Securities
|
||||
Balance
at January 1, 2009
|
$ | 1,658,178 | ||
Transfers
to Level 1
|
(48,178 | ) | ||
Balance
at June 30, 2009
|
$ | 1,610,000 |
4.
|
STOCK-BASED
COMPENSATION
|
Expected
option lives
|
3.5
years
|
|||
Expected
volatility
|
47.57 | % | ||
Risk-free
interest rate
|
2.37 | % | ||
Expected
dividend yield
|
0.83 | % |
Shares
Underlying
Awards
|
Weighted
Average
Exercise
Price
|
Aggregate
Intrinsic
Value
($000)
|
Weighted
Average
Remaining
Contractual
Life (In Years)
|
|||||||||||||
Awards
outstanding at December 31, 2008
|
2,617,782 | $ | 6.37 | |||||||||||||
Restricted
stock units granted
|
735,021 | $ | 0.00 | |||||||||||||
Shares
issued under restricted stock units
|
(432,545 | ) | $ | 0.00 | ||||||||||||
Options
cancelled
|
(525,540 | ) | $ | 6.99 | ||||||||||||
Restricted
stock units forfeited
|
(87,857 | ) | $ | 0.00 | ||||||||||||
Awards
outstanding at March 31, 2009
|
2,306,861 | $ | 5.64 | |||||||||||||
Restricted
stock units granted
|
650,000 | $ | 0.00 | |||||||||||||
Shares
issued under restricted stock units
|
(3,370 | ) | $ | 0.00 | ||||||||||||
Options
cancelled
|
(570,717 | ) | $ | 8.26 | ||||||||||||
Restricted
stock units forfeited
|
(116,729 | ) | $ | 0.00 | ||||||||||||
Awards
outstanding at June 30, 2009
|
2,266,045 | $ | 3.66 | $ | 2,773 | 2.62 | ||||||||||
Awards
vested and expected to vest at June 30, 2009
|
2,086,601 | $ | 3.90 | $ | 2,436 | 3.08 | ||||||||||
Options
exercisable at June 30, 2009
|
666,062 | $ | 8.69 | $ | 0 | 2.50 | ||||||||||
Restricted
stock eligible to be issued at June 30, 2009 pursuant to restricted stock
units
|
0 | $ | 0.00 | $ | 0 | N/A |
Unvested Awards
|
Number of
Shares
|
Weighted
Average Grant
Date Fair Value
|
||||||
Shares
underlying awards unvested at December 31, 2008
|
1,609,990 | $ | 5.70 | |||||
Shares
underlying restricted stock units granted
|
1,385,021 | $ | 2.67 | |||||
Shares
underlying options vested
|
(341,531 | ) | $ | 3.54 | ||||
Shares
underlying restricted stock units vested
|
(435,915 | ) | $ | 6.73 | ||||
Shares
underlying options cancelled
|
(412,996 | ) | $ | 3.61 | ||||
Shares
underlying restricted stock units forfeited
|
(204,586 | ) | $ | 4.80 | ||||
Shares
underlying awards unvested at June 30, 2009
|
1,599,983 | $ | 2.27 |
5.
|
STOCKHOLDERS’
EQUITY
|
6.
|
LEGAL
PROCEEDINGS
|
7.
|
NET
INCOME (LOSS) PER SHARE OF COMMON
STOCK
|
For the Three Months Ended June 30,
|
For the Six Months Ended June 30,
|
|||||||||||||||
2009
|
2008 (As
restated)
|
2009
|
2008 (As
restated)
|
|||||||||||||
Basic net income (loss) per share
|
||||||||||||||||
Numerator:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 349,554 | $ | 1,063,658 | $ | (45,349,877 | ) | $ | 2,602,518 | |||||||
Loss
from discontinued operations
|
(9,532 | ) | (2,085 | ) | (8,607 | ) | (4,816 | ) | ||||||||
Preferred
stock cash dividends
|
(96,424 | ) | (96,424 | ) | (192,848 | ) | (192,848 | ) | ||||||||
Numerator
for basic earnings per share -
|
||||||||||||||||
Net
income (loss) available to common stockholders
|
$ | 243,598 | $ | 965,149 | $ | (45,551,332 | ) | $ | 2,404,854 | |||||||
Denominator:
|
||||||||||||||||
Weighted
average basic shares outstanding
|
30,620,349 | 30,452,497 | 30,558,170 | 30,422,738 | ||||||||||||
Basic
net income (loss) per share:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.01 | $ | 0.03 | $ | (1.48 | ) | $ | 0.09 | |||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | (0.01 | ) | (0.01 | ) | ||||||||
Net
income (loss) available to common stockholders
|
$ | 0.01 | $ | 0.03 | $ | (1.49 | ) | $ | 0.08 | |||||||
Diluted
net income (loss) per share
|
||||||||||||||||
Numerator:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 349,554 | 1,063,658 | $ | (45,349,877 | ) | $ | 2,602,518 | ||||||||
Loss
from discontinued operations
|
(9,532 | ) | (2,085 | ) | (8,607 | ) | (4,816 | ) | ||||||||
Preferred
stock cash dividends
|
(96,424 | ) | - | (192,848 | ) | - | ||||||||||
Numerator
for diluted earnings per share -
|
||||||||||||||||
Net
income (loss) available to common stockholders
|
$ | 243,598 | $ | 1,061,573 | $ | (45,551,332 | ) | $ | 2,597,702 | |||||||
Denominator:
|
||||||||||||||||
Weighted
average basic shares outstanding
|
30,620,349 | 30,452,497 | 30,558,170 | 30,422,738 | ||||||||||||
Weighted
average effect of dilutive securities:
|
||||||||||||||||
Employee
stock options and restricted stock units
|
- | 288,041 | - | 368,260 | ||||||||||||
Convertible
preferred stock
|
- | 3,856,942 | - | 3,856,942 | ||||||||||||
Weighted
average diluted shares outstanding
|
30,620,349 | 34,597,480 | 30,558,170 | 34,647,940 | ||||||||||||
Diluted
net income (loss) per share:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.01 | $ | 0.03 | $ | (1.48 | ) | $ | 0.07 | |||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Preferred
stock cash dividends
|
(0.00 | ) | - | (0.01 | ) | - | ||||||||||
Net
income (loss) available to common stockholders
|
$ | 0.01 | $ | 0.03 | $ | (1.49 | ) | $ | 0.07 |
8.
|
INCOME
TAXES
|
9.
|
BUSINESS
CONCENTRATIONS AND CREDIT RISK
|
10.
|
LONG
TERM INVESTMENT
|
11.
|
IMPAIRMENT
CHARGES
|
|
·
|
The
total Company fair value was estimated using a combination of a discounted
cash flow model (present value of future cash flows) and the Company’s
business enterprise value based upon the fair value of its outstanding
common and preferred shares. The fair value of the Company’s
goodwill is the residual fair value after allocating the Company’s total
fair value to its other assets, net of liabilities. This
analysis resulted in an impairment of the Company’s goodwill approximating
$19.8 million. The review also revealed an additional
impairment to the Company’s intangible assets related to certain customer
relationships and noncompete agreements approximating $2.8
million.
|
|
·
|
The
carrying value of the Company’s long-term investment was written down to
fair value based upon the most current estimate of the market value of the
Company’s equity stake in Debtfolio, Inc. The impairment
approximated $1.5 million. (See Note 10 – Long Term
Investment)
|
12.
|
RESTRUCTURING
AND OTHER CHARGES
|
Intial
Charge
|
Q1
Payments
|
Q1
2009 Other
Deductions
|
Balance
March 31, 2009
|
Q2
Additions
|
Q2 Payments
|
Balance
June
30,
2009
|
||||||||||||||||||||||
Workforce
reduction
|
$ | 1,741,752 | $ | (243,598 | ) | $ | (186,091 | ) | $ | 1,312,063 | $ | 574,281 | $ | (643,503 | ) | $ | 1,242,841 | |||||||||||
Asset
write-off
|
242,777 | - | (242,777 | ) | - | - | - | - | ||||||||||||||||||||
$ | 1,984,529 | $ | (243,598 | ) | $ | (428,868 | ) | $ | 1,312,063 | $ | 574,281 | $ | (643,503 | ) | $ | 1,242,841 |
13.
|
COMPREHENSIVE
INCOME (LOSS)
|
For the Three Months
Ended June 30,
|
For the Six Months Ended
June 30,
|
|||||||||||||||
2009
|
2008 (As
restated)
|
2009
|
2008 (As
restated)
|
|||||||||||||
Net
income (loss)
|
$ | 340,022 | $ | 1,061,573 | $ | (45,358,484 | ) | $ | 2,597,702 | |||||||
Unrealized
gain on marketable securities
|
248,782 | - | 348,642 | - | ||||||||||||
Reclass
from AOCI to earnings due to sale
|
(260,746 | ) | - | (260,746 | ) | - | ||||||||||
Comprehensive
income (loss)
|
$ | 328,058 | $ | 1,061,573 | $ | (45,270,588 | ) | $ | 2,597,702 |
14.
|
DISCONTINUED
OPERATIONS
|
15.
|
ASSETS
HELD FOR SALE
|
ASSETS
|
||||
Cash
and cash equivalents
|
$ | 40,344 | ||
Restricted
cash
|
16,951 | |||
Accounts
receivable
|
2,284,507 | |||
Other
receivables
|
51,808 | |||
Prepaid
expenses and other current assets
|
163,835 | |||
Property
and equipment
|
628,822 | |||
Other
assets
|
36,331 | |||
Other
intangibles
|
1,355,633 | |||
Restricted
cash
|
101,708 | |||
Assets
held for sale
|
$ | 4,679,939 | ||
LIABILITIES
|
||||
Accounts
payable
|
$ | 59,798 | ||
Accrued
expenses
|
160,945 | |||
Deferred
revenue
|
1,720,821 | |||
Other
current liabilities
|
244,368 | |||
Other
liabilities
|
17,083 | |||
Liabilities
held for sale
|
$ | 2,203,015 |
16.
|
SUBSEQUENT
EVENTS
|
Assets
acquired:
|
||||
Accounts
receivable
|
$ | 18,539 | ||
Other
current assets
|
66,670 | |||
Other
assets
|
27,000 | |||
Excess
purchase price over net assets acquired
|
5,383,617 | |||
Total
assets acquired
|
5,495,826 | |||
Liabilities
assumed:
|
||||
Accounts
payable and accrued expenses
|
253,923 | |||
Total
consideration
|
$ | 5,241,903 |
2009
|
2008
|
|||||||
Total
revenue
|
$ | 29,073,142 | $ | 37,058,241 | ||||
Net
income
|
$ | (45,579,313 | ) | $ | 1,876,847 |
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations.
|
|
·
|
incentive
compensation,
|
|
·
|
useful
lives of intangible assets,
|
|
·
|
useful
lives of fixed assets,
|
|
·
|
the
carrying value of goodwill, intangible assets, marketable securities and
the Company’s long term investment,
|
|
·
|
allowances
for doubtful accounts,
|
|
·
|
accrued
expense estimates,
|
|
·
|
reserves
for estimated tax liabilities,
|
|
·
|
certain
estimates and assumptions used in the calculation of the fair value of
equity compensation issued to employees,
and
|
|
·
|
revenue
estimates based upon a completed contract basis related to the Company’s
Promotions.com business.
|
For the Three Months Ended June 30,
|
||||||||||||||||||||
Revenue:
|
2009
|
Percent
of Total
Revenue
|
2008 (As
restated)
|
Percent of
Total
Revenue
|
Percent
Change
|
|||||||||||||||
Premium
services
|
$ | 9,428,936 | 63 | % | $ | 10,289,939 | 56 | % | -8 | % | ||||||||||
Marketing
services
|
5,563,305 | 37 | % | 8,113,882 | 44 | % | -31 | % | ||||||||||||
Total
revenue
|
$ | 14,992,241 | 100 | % | $ | 18,403,821 | 100 | % | -19 | % |
For the Three Months Ended
June 30,
|
||||||||||||
2009
|
2008 (As
restated)
|
Percent
Change
|
||||||||||
Marketing
services:
|
||||||||||||
Advertising
and sponsorships
|
$ | 4,567,715 | $ | 6,377,852 | -28 | % | ||||||
Interactive
marketing services (Promotions.com)
|
995,590 | 1,736,030 | -43 | % | ||||||||
Total
|
$ | 5,563,305 | $ | 8,113,882 | -31 | % |
For the Three Months Ended June 30,
|
||||||||||||||||||||
Operating expense:
|
2009
|
Percent
of Total
Revenue
|
2008 (As
restated)
|
Percent
of Total
Revenue
|
Percent
Change
|
|||||||||||||||
Cost
of services
|
$ | 7,264,697 | 48.5 | % | $ | 8,320,717 | 45.2 | % | -13 | % | ||||||||||
Sales
and marketing
|
2,785,929 | 18.6 | % | 3,630,394 | 19.7 | % | -23 | % | ||||||||||||
General
and administrative
|
3,430,233 | 22.9 | % | 4,078,822 | 22.2 | % | -16 | % | ||||||||||||
Depreciation
and amortization
|
1,207,710 | 8.1 | % | 1,584,780 | 8.6 | % | -24 | % | ||||||||||||
Restructuring
and other charges
|
574,281 | 3.8 | % | - | N/A | N/A | ||||||||||||||
Total
operating expense
|
$ | 15,262,850 | $ | 17,614,713 | -13 | % |
For the Three Months Ended
June 30,
|
||||||||||||
2009
|
2008 (As
restated)
|
Percent
Change
|
||||||||||
Net
interest income
|
$ | 359,417 | $ | 400,243 | -10 | % |
For the Three Months Ended
June 30,
|
||||||||||||
2009
|
2008 (As
restated)
|
Change
|
||||||||||
Provision
for income taxes
|
$ | - | $ | 125,693 | N/A |
For the Six Months Ended June 30,
|
||||||||||||||||||||
Revenue:
|
2009
|
Percent
of Total
Revenue
|
2008 (As
restated)
|
Percent of
Total
Revenue
|
Percent
Change
|
|||||||||||||||
Premium
services
|
$ | 18,936,377 | 66 | % | $ | 21,049,408 | 58 | % | -10 | % | ||||||||||
Marketing
services
|
9,556,326 | 34 | % | 15,346,439 | 42 | % | -38 | % | ||||||||||||
Total
revenue
|
$ | 28,492,703 | 100 | % | $ | 36,395,847 | 100 | % | -22 | % |
For the Six Months Ended June 30,
|
||||||||||||
2009
|
2008 (as
restated)
|
Percent
Change
|
||||||||||
Marketing
services:
|
||||||||||||
Advertising
and sponsorships
|
$ | 7,731,540 | $ | 12,340,597 | -37 | % | ||||||
Interactive
marketing services (Promotions.com)
|
1,824,786 | 3,005,842 | -39 | % | ||||||||
Total
|
$ | 9,556,326 | $ | 15,346,439 | -38 | % |
For the Six Months Ended June 30,
|
||||||||||||||||||||
Operating expense:
|
2009
|
Percent
of Total
Revenue
|
2008 (As
restated)
|
Percent
of Total
Revenue
|
Percent
Change
|
|||||||||||||||
Cost
of services
|
$ | 15,510,407 | 54.4 | % | $ | 15,931,406 | 43.8 | % | -3 | % | ||||||||||
Sales
and marketing
|
5,762,836 | 20.2 | % | 7,393,989 | 20.3 | % | -22 | % | ||||||||||||
General
and administrative
|
7,971,911 | 28.0 | % | 8,434,367 | 23.2 | % | -5 | % | ||||||||||||
Depreciation
and amortization
|
2,678,447 | 9.4 | % | 2,848,384 | 7.8 | % | -6 | % | ||||||||||||
Impairment
charges
|
24,137,069 | 84.7 | % | - | N/A | N/A | ||||||||||||||
Restructuring
and other charge
|
2,558,810 | 9.0 | % | - | N/A | N/A | ||||||||||||||
Total
operating expense
|
$ | 58,619,480 | $ | 34,608,146 | 69 | % |
|
·
|
The
total Company fair value was estimated using a combination of a discounted
cash flow model (present value of future cash flows) and the Company’s
business enterprise value based upon the fair value of its outstanding
common and preferred shares. The fair value of the Company’s
goodwill is the residual fair value after allocating the Company’s total
fair value to its other assets, net of liabilities. This
analysis resulted in an impairment of the Company’s goodwill approximating
$19.8 million. The review also revealed an additional
impairment to the Company’s intangible assets related to certain customer
relationships and noncompete agreements approximating $2.8
million.
|
|
·
|
The
carrying value of the Company’s long-term investment was written down to
fair value based upon the most current estimate of the market value of the
Company’s equity stake in Debtfolio, Inc. The impairment
approximated $1.5 million.
|
For the Six Months Ended
June 30,
|
||||||||||||
2009
|
2008 (as
restated)
|
Percent
Change
|
||||||||||
Net
interest income
|
$ | 589,554 | $ | 1,086,437 | -46 | % |
For the Six Months Ended
June 30,
|
||||||||||||
2009
|
2008 (as
restated)
|
Change
|
||||||||||
Provision
for income taxes
|
$ | 16,227,077 | $ | 271,621 | 5,874 | % |
June 30, 2009
|
December 31, 2008
|
|||||||
Cash
and cash equivalents
|
$ | 63,411,600 | $ | 72,399,461 | ||||
Current
and noncurrent marketable securities
|
16,491,541 | 1,658,178 | ||||||
Current
and noncurrent restricted cash
|
2,160,371 | 2,160,371 | ||||||
Total
cash and cash equivalents, current and noncurrent restricted cash and
current and noncurrent marketable securities
|
$ | 82,063,512 | $ | 76,218,010 |
|
·
|
A decrease in the growth of
receivables in the six months ended June 30, 2009, as compared to the six
months ended June 30, 2008, primarily related to improved collection
efforts and decreased
revenue;
|
|
·
|
An increase in accrued expenses
in the six months ended June 30, 2009, primarily related to the Company’s
restructuring and incentive compensation accruals, as compared to a
decrease in accrued expenses in the six months ended June 30, 2008
primarily related to incentive compensation and professional fees
accruals;
|
|
·
|
An increase in the growth of
accounts payable in the six months ended June 30, 2009, as compared to the
six months ended June 30, 2008, primarily related to the accelerated
timing of payments made in the fourth quarter of
2008.
|
Item
3.
|
Quantitative
and Qualitative Disclosures About Market
Risk.
|
Item
4.
|
Controls
and Procedures.
|
Item
1.
|
Legal
Proceedings.
|
Item
1A.
|
Risk
Factors.
|
Item
2.
|
Unregistered
Sales of Equity Securities and Use of
Proceeds.
|
Period
|
(a) Total
Number
of Shares
(or Units)
Purchased
|
(b)
Average
Price
Paid per
Share (or
Unit)
|
(c) Total Number
of Shares (or
Units) Purchased
as Part of Publicly
Announced Plans
or Programs
|
(d) Maximum Number
(or Approximate Dollar
Value) of Shares (or
Units) that May Yet Be
Purchased Under the
Plans or Programs *
|
||||||||||||
April
1 – 30, 2009
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
May
1 – 31, 2009
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
June
1 – 30, 2009
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
Total
|
- | $ | - | - | $ | 2,678,878 |
*
|
In
December 2000, the Company’s Board of Directors authorized the repurchase
of up to $10 million worth of the Company’s Common Stock, from time to
time, in private purchases or in the open market. In February 2004, the
Company’s Board approved the resumption of this program under new price
and volume parameters, leaving unchanged the maximum amount available for
repurchase under the program. The program does not have a specified
expiration date and is subject to certain
limitations.
|
Item
3.
|
Defaults
Upon Senior Securities.
|
Item
4.
|
Submission
of Matters to a Vote of Security
Holders.
|
|
·
|
The
election of James J. Cramer (votes for: 19,545,066; withheld: 7,628,154),
Martin Peretz (votes for: 17,891,471; withheld: 9,281,749) and Derek Irwin
(votes for: 18,656,909; withheld: 8,516,311) as Class I
directors of the Company, to serve until the annual meeting in 2012 or
until their successors are elected and qualified;
and
|
|
·
|
The
ratification of the appointment of KPMG LLP as the Company’s independent
registered public accounting firm for the fiscal year ending December 31,
2009 (votes for: 26,749,359; votes against: 412,599; abstain:
11,262).
|
Item
5.
|
Other
Information.
|
Item
6.
|
Exhibits.
|
Exhibit
Number
|
Description
|
|
*3.1
|
Amended
and Restated Certificate of Incorporation of the Company, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*3.2
|
Amended
and Restated Bylaws of the Company, incorporated by reference to the
Exhibits to the Company’s Annual Report on Form 10-K filed March 30,
2000.
|
|
*4.1
|
Amended
and Restated Registration Rights Agreement dated December 21, 1998, by and
among the Company and the stockholders named therein, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*4.2
|
Certificate
of Designation of the Company’s Series A Junior Participating Preferred
Stock, as filed with the Secretary of State of the State of Delaware on
May 14, 1999, incorporated by reference to the Exhibits to the Company’s
Registration Statement on Form S-1 filed February 23,
1999.
|
|
*4.3
|
Certificate
of Designation of the Company’s Series B Preferred Stock, as filed with
the Secretary of State of the State of Delaware on November 15, 2007,
incorporated by reference to the Exhibits to
the
Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.4
|
Option
to Purchase Common Stock dated November 1, 2007, incorporated by reference
to the Company’s Current Report on Form 8-K filed November 6,
2007.
|
|
*4.5
|
Investor
Rights Agreement dated November 15, 2007 by and among the Company, TCV VI,
L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.6
|
Warrant
dated November 15, 2007 issued by the Company to TCV VI, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.7
|
Warrant
dated November 15, 2007 issued by the Company to TCV Member Fund, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.8
|
Specimen
certificate for the Company’s shares of common stock, incorporated by
reference to the Exhibits to Amendment 3 to the Company’s Registration
Statement on Form S-1 filed April 19, 1999.
|
|
10.1
|
Term
Sheet between the Company and Daryl Otte dated as of May 15,
2009.
|
|
10.2
|
Agreement
for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan
dated as of June 9, 2009 between the Company and Daryl
Otte.
|
|
10.3
|
Change
of Control and Severance Agreement dated as of June 9, 2009 between the
Company and Daryl Otte.
|
|
10.4
|
Term
Sheet between the Company and Gregory Barton dated as of June 2,
2009.
|
|
10.5
|
Notice
of Waiver dated April 2, 2009 by James Cramer under Employment Agreement,
as amended, between the Company and James Cramer.
|
|
10.6
|
Letter
agreement dated April 30, 2009 between the Company and Richard
Broitman.
|
|
10.7
|
Letter
agreement dated May 8, 2009 between the Company and Eric
Ashman.
|
|
10.8
|
Letter
agreement dated June 10, 2009 between the Company and Teresa
Santos.
|
|
31.1
|
Rule
13a-14(a) Certification of principal executive officer.
|
|
31.2
|
Rule
13a-14(a) Certification of principal financial officer.
|
|
32.1
|
Section
1350 Certification of Chief Executive Officer.
|
|
32.2
|
Section
1350 Certification of Chief Accounting Officer.
|
|
*
Incorporated by
reference.
|
THESTREET.COM,
INC.
|
|||
Date:
February 8, 2010
|
By:
|
/s/
Daryl Otte
|
|
|
Name:
Daryl Otte
|
||
|
Title:
Chief Executive Officer (principal executive officer)
|
||
Date:
February 8, 2010
|
By:
|
/s/
Richard Broitman
|
|
|
Name:
Richard Broitman
|
||
|
Title:
Chief Accounting Officer (principal financial
officer)
|
Exhibit
Number
|
Description
|
|
*3.1
|
Amended
and Restated Certificate of Incorporation of the Company, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*3.2
|
Amended
and Restated Bylaws of the Company, incorporated by reference to the
Exhibits to the Company’s Annual Report on Form 10-K filed March 30,
2000.
|
|
*4.1
|
Amended
and Restated Registration Rights Agreement dated December 21, 1998, by and
among the Company and the stockholders named therein, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*4.2
|
Certificate
of Designation of the Company’s Series A Junior Participating Preferred
Stock, as filed with the Secretary of State of the State of Delaware on
May 14, 1999, incorporated by reference to the Exhibits to the Company’s
Registration Statement on Form S-1 filed February 23,
1999.
|
|
*4.3
|
Certificate
of Designation of the Company’s Series B Preferred Stock, as filed with
the Secretary of State of the State of Delaware on November 15, 2007,
incorporated by reference to the Exhibits to
the
Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.4
|
Option
to Purchase Common Stock dated November 1, 2007, incorporated by reference
to the Company’s Current Report on Form 8-K filed November 6,
2007.
|
|
*4.5
|
Investor
Rights Agreement dated November 15, 2007 by and among the Company, TCV VI,
L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.6
|
Warrant
dated November 15, 2007 issued by the Company to TCV VI, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.7
|
Warrant
dated November 15, 2007 issued by the Company to TCV Member Fund, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.8
|
Specimen
certificate for the Company’s shares of common stock, incorporated by
reference to the Exhibits to Amendment 3 to the Company’s Registration
Statement on Form S-1 filed April 19, 1999.
|
|
10.1
|
Term
Sheet between the Company and Daryl Otte dated as of May 15,
2009.
|
|
10.2
|
Agreement
for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan
dated as of June 9, 2009 between the Company and Daryl
Otte.
|
|
10.3
|
Change
of Control and Severance Agreement dated as of June 9, 2009 between the
Company and Daryl Otte
|
|
10.4
|
Term
Sheet between the Company and Gregory Barton dated as of June 2,
2009.
|
|
10.5
|
Notice
of Waiver dated April 2, 2009 by James Cramer under Employment Agreement,
as amended, between the Company and James Cramer.
|
|
10.6
|
Letter
agreement dated April 30, 2009 between the Company and Richard
Broitman.
|
|
10.7
|
Letter
agreement dated May 8, 2009 between the Company and Eric
Ashman.
|
|
10.8
|
Letter
agreement dated June 10, 2009 between the Company and Teresa
Santos.
|
|
31.1
|
Rule
13a-14(a) Certification of principal executive officer.
|
|
31.2
|
Rule
13a-14(a) Certification of principal financial officer.
|
|
32.1
|
Section
1350 Certification of Chief Executive Officer.
|
|
32.2
|
Section
1350 Certification of Chief Accounting
Officer.
|