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EX-31.2 - EXHIBIT 31.2 - SCIENTIFIC LEARNING CORP | ex31_2.htm |
EX-32.1 - EXHIBIT 32.1 - SCIENTIFIC LEARNING CORP | ex32_1.htm |
EX-31.1 - EXHIBIT 31.1 - SCIENTIFIC LEARNING CORP | ex31_1.htm |
EX-32.2 - EXHIBIT 32.2 - SCIENTIFIC LEARNING CORP | ex32_2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-Q
x QUARTERLY REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the quarterly period ended September 30, 2009
OR
¨ TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the transition period from _____ to _____
Commission
File number 000-24547
Scientific
Learning Corporation
(Exact
name of registrant as specified in its charter)
Delaware
|
94-3234458
|
|||
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
300 Frank
H. Ogawa Plaza, Suite 600
Oakland,
California 94612
(510)
444-3500
(Address
of Registrant’s principal executive offices, including zip code,
and
telephone
number, including area code)
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No ¨
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding
12 months (or for such shorter period that the registrant was required to submit
and post such files.) Yes x No ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ¨ Accelerated
filer ¨ Non-accelerated
filer ¨
Smaller
reporting company x
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the
Exchange
Act). Yes ¨ No x
As of
October 15, 2009, there were 18,157,965 shares of Common Stock
outstanding.
SCIENTIFIC
LEARNING CORPORATION
INDEX
TO FORM 10-Q
FOR THE
QUARTER ENDED September 30, 2009
PAGE
PART
1. FINANCIAL INFORMATION
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||
Item
1.
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Financial
Statements (Unaudited):
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3
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||
4
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||
5
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||
6
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||
Item
2.
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12
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Item
3.
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19
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Item
4T.
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19
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PART
II. OTHER INFORMATION
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Item
1.
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21
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Item
1A.
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22
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Item
6.
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29
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30
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PART
I. FINANCIAL INFORMATION
Item
1. Financial Statements
Scientific
Learning Corporation
|
||||||||
Condensed Balance
Sheets
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||||||||
(In
thousands)
|
||||||||
September
30,
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December
31,
|
|||||||
2009
|
2008
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|||||||
Unaudited
|
||||||||
Assets
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
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$ | 16,908 | $ | 7,550 | ||||
Accounts
receivable, net
|
10,284 | 7,717 | ||||||
Prepaid
expenses and other current assets
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1,726 | 1,341 | ||||||
Total
current assets
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28,918 | 16,608 | ||||||
Property
and equipment, net
|
1,671 | 1,552 | ||||||
Goodwill
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4,568 | 4,568 | ||||||
Other
intangible assets, net
|
5,715 | 6,424 | ||||||
Other
assets
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2,096 | 1,108 | ||||||
Total
assets
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$ | 42,968 | $ | 30,260 | ||||
Liabilities
and stockholders' equity
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$ | 953 | $ | 674 | ||||
Accrued
liabilities
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6,365 | 3,964 | ||||||
Deferred
revenue
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18,902 | 15,521 | ||||||
Total
current liabilities
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26,220 | 20,159 | ||||||
Deferred
revenue, long-term
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6,274 | 4,431 | ||||||
Other
liabilities
|
713 | 625 | ||||||
Total
liabilities
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33,207 | 25,215 | ||||||
Stockholders'
equity :
|
||||||||
Common
stock and addditional paid in capital
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86,534 | 85,098 | ||||||
Accumulated
deficit
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(76,773 | ) | (80,053 | ) | ||||
Total
stockholders' equity
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9,761 | 5,045 | ||||||
Total
liabilities and stockholders' equity
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$ | 42,968 | $ | 30,260 | ||||
See
accompanying notes.
|
SCIENTIFIC
LEARNING CORPORATION
|
||||||||||||||||
CONDENSED
STATEMENTS OF OPERATIONS
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||||||||||||||||
(In
thousands, except per share amounts)
|
||||||||||||||||
Unaudited
|
||||||||||||||||
Three
months ended September 30,
|
Nine
months ended September 30,
|
|||||||||||||||
2009
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2008
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2009
|
2008
|
|||||||||||||
Revenues:
|
||||||||||||||||
Products
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$ | 15,510 | $ | 7,475 | $ | 25,630 | $ | 21,009 | ||||||||
Service
and support
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4,783 | 5,220 | 13,904 | 14,252 | ||||||||||||
Total
revenues
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20,293 | 12,695 | 39,534 | 35,261 | ||||||||||||
Cost
of revenues:
|
||||||||||||||||
Cost
of products
|
1,015 | 599 | 1,961 | 1,686 | ||||||||||||
Cost
of service and support
|
2,236 | 2,411 | 6,442 | 7,279 | ||||||||||||
Total
cost of revenues
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3,251 | 3,010 | 8,403 | 8,965 | ||||||||||||
Gross
profit
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17,042 | 9,685 | 31,131 | 26,296 | ||||||||||||
Operating
expenses:
|
||||||||||||||||
Sales
and marketing
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6,243 | 5,329 | 16,967 | 18,461 | ||||||||||||
Research
and development
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1,846 | 1,545 | 4,588 | 5,267 | ||||||||||||
General
and administrative
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2,169 | 2,398 | 6,019 | 6,346 | ||||||||||||
Total
operating expenses
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10,258 | 9,272 | 27,574 | 30,074 | ||||||||||||
Operating
income (loss)
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6,784 | 413 | 3,557 | (3,778 | ) | |||||||||||
Interest
and other income (expense), net
|
(28 | ) | 141 | 90 | 473 | |||||||||||
Income
(loss) before income tax
|
6,756 | 554 | 3,647 | (3,305 | ) | |||||||||||
Income
tax expense (benefit)
|
301 | (36 | ) | 367 | 1,207 | |||||||||||
Net
income (loss)
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$ | 6,455 | $ | 590 | $ | 3,280 | $ | (4,512 | ) | |||||||
Basic
net income (loss) per share:
|
$ | 0.36 | $ | 0.03 | $ | 0.18 | $ | (0.26 | ) | |||||||
Shares
used in computing basic net income (loss) per share
|
18,077 | 17,552 | 17,980 | 17,438 | ||||||||||||
Diluted
net income (loss) per share:
|
$ | 0.35 | $ | 0.03 | $ | 0.18 | $ | (0.26 | ) | |||||||
Shares
used in computing diluted net income (loss) per share
|
18,648 | 18,283 | 18,505 | 17,438 | ||||||||||||
See
accompanying notes.
|
Scientific
Learning Corporation
|
||||||||
Condensed
Statements of Cash Flows
|
||||||||
(In
thousands)
|
||||||||
Unaudited
|
||||||||
Nine
months ended September 30,
|
||||||||
2009
|
2008
|
|||||||
Operating
Activities:
|
||||||||
Net
income (loss)
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$ | 3,280 | $ | (4,512 | ) | |||
Items
to reconcile net income (loss) to net cash provided by (used in) operating
activities:
|
||||||||
Depreciation
and amortization
|
1,183 | 932 | ||||||
Stock
based compensation
|
1,034 | 1,618 | ||||||
Increase
in deferred tax asset valuation allowance
|
- | 1,191 | ||||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
(2,567 | ) | (4,580 | ) | ||||
Prepaid
expenses and other current assets
|
(385 | ) | (164 | ) | ||||
Other
assets
|
(11 | ) | (117 | ) | ||||
Accounts
payable
|
279 | (444 | ) | |||||
Accrued
liabilities
|
2,401 | 682 | ||||||
Deferred
revenue
|
5,224 | 46 | ||||||
Other
liabilities
|
88 | 128 | ||||||
Net
cash provided by (used in) operating activities
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10,526 | (5,220 | ) | |||||
Investing
Activities:
|
||||||||
Purchases
of property and equipment, net
|
(584 | ) | (206 | ) | ||||
Additions
to capitalized software
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(986 | ) | - | |||||
Purchase
of Soliloquy
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- | (10,133 | ) | |||||
Net
cash used in investing activities
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(1,570 | ) | (10,339 | ) | ||||
Financing
Activities:
|
||||||||
Borrowings
under bank line of credit
|
2,500 | - | ||||||
Repayment
of borrowings
|
(2,500 | ) | - | |||||
Proceeds
from issuance of common stock, net
|
402 | 451 | ||||||
Net
cash provided by financing activities
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402 | 451 | ||||||
Increase
(decrease) in cash and cash equivalents
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9,358 | (15,108 | ) | |||||
Cash
and cash equivalents at beginning of period
|
7,550 | 21,179 | ||||||
Cash
and cash equivalents at end of period
|
$ | 16,908 | $ | 6,071 |
See
accompanying notes.
Notes
to Condensed Financial Statements
1.
Summary of Significant Accounting Policies
Description
of Business
Scientific
Learning Corporation develops, distributes and licenses technology that
accelerates learning by improving the processing efficiency of the
brain.
Our
patented products build learning capacity by rigorously and systematically
applying neuroscience-based learning principles to improve the fundamental
cognitive skills required to read and learn. To facilitate the use of our
products, we offer a variety of on-site and remote professional and technical
services, as well as phone, email and web-based support. We sell
primarily to K-12 schools in the United States through a direct sales
force.
All of
our activities are in one operating segment.
Our
current operating assumptions and projections reflect management’s best estimate
of future revenue, operating expenses, and capital commitments, and indicate
that our current sources of liquidity, including the bank line of credit, should
be sufficient to fund operations through at least September 30,
2010.
We were
incorporated in 1995 in the State of California and were reincorporated in 1997
in the State of Delaware.
Use
of Estimates
The
preparation of financial statements, in conformity with accounting principles
generally accepted in the United States, requires management to make certain
estimates and assumptions that affect the reported amounts of assets and
liabilities as of the date of the financial statements as well as the reported
amounts of revenues and expenses during the periods presented. To the extent
that there are material differences between these estimates and actual results,
our financial statements could be affected.
Interim
Financial Information
The
interim financial information as of September 30, 2009 and for the three and
nine months ended September 30, 2009 and 2008 is unaudited, and includes all
normal recurring adjustments and an adjustment to account for the acquisition of
Soliloquy Learning that we consider necessary for a fair presentation of our
financial position at such date and our results of operations and cash flows for
those periods. The balance sheet as of December 31, 2008 has been
derived from audited financial statements at that date but does not include all
of the information and notes required by generally accepted accounting
principles (“GAAP”) for annual financial statements. In addition, the
results of operations for the three months ended September 30, 2009 are not
necessarily indicative of the results for the entire fiscal year ending December
31, 2009, or for any other period.
These
condensed financial statements and notes should be read in conjunction with our
audited financial statements and notes thereto and Management’s Discussion and
Analysis of Financial Condition and Results of Operations, contained in our
Annual Report on Form 10-K for the year ended December 31, 2008, filed with the
Securities and Exchange Commission.
Subsequent
events
We have
evaluated subsequent events through the issuance of our condensed financial
statements on November 6, 2009.
Notes
to Condensed Financial Statements
Summary
of Significant Accounting Policies (continued)
Net
Income (Loss) Per Share
Basic net
income (loss) per share is computed using the weighted-average number of common
shares outstanding during the period. Diluted net income per share reflects the
potential dilution of securities by adding common stock equivalents (computed
using the treasury stock method) to the weighted-average number of common shares
outstanding during the period, if dilutive. Potentially dilutive securities of
1,242,399 and 3,743,346 have been excluded from the computation of diluted net
income per share in the nine month periods ending September 30, 2009 and 2008,
respectively, as their inclusion is antidilutive.
The
following table sets forth the computation of net income (loss) per share (in
thousands, except per share data):
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Net
income (loss)
|
$ | 6,455 | $ | 590 | $ | 3,280 | $ | (4,512 | ) | |||||||
Weighted
average shares used in calculation of basic net loss per
share
|
18,077 | 17,552 | 17,980 | 17,438 | ||||||||||||
Effect
of dilutive securities:
|
||||||||||||||||
Employee
stock options and awards
|
571 | 731 | 525 | - | ||||||||||||
Weighted-average
diluted common shares
|
18,648 | 18,283 | 18,505 | 17,438 | ||||||||||||
Net
income (loss) per common share - basic
|
$ | 0.36 | $ | 0.03 | $ | 0.18 | $ | (0.26 | ) | |||||||
Net
income (loss) per common share - diluted
|
$ | 0.35 | $ | 0.03 | $ | 0.18 | $ | (0.26 | ) |
Recent
Accounting Pronouncements
In April
2008 the FASB issued FASB Staff Position (FSP) SFAS 142-3, “Determination of the Useful Life of
Intangible Assets.” FSP SFAS 142-3 amends the factors that should be
considered in developing renewal or extension assumptions used to determine the
useful life of a recognized intangible asset under Statement of Financial
Accounting Standards ASC 350,” Intangibles – Goodwill and
Other” (formerly SFAS 142, “Goodwill and Other Intangible
Assets.”). This new staff position is intended to improve the consistency
between the useful life of a recognized intangible asset under ASC 350 and the
period of expected cash flows used to measure the fair value of the asset under
Statement of Financial Accounting Standards ASC 805, “Business Combinations”
(formerly SFAS 141(R), “Business Combinations.”) FSP
SFAS 142-3 became effective beginning with our first quarter of 2009 and did not
have a material impact on our financial condition or results of
operations.
In June
2009, the FASB issued SFAS No. 168, “The FASB Accounting Standards Codification
and the Hierarchy of Generally Accepted Accounting Principles, a replacement of
FASB Statement No. 162,” or SFAS No. 168. SFAS 168 replaces SFAS No.
162, “The Hierarchy of Generally Accepted Accounting Principles,” to establish
the FASB Accounting Standards Codification as the source of authoritative
accounting principles recognized by the FASB to be applied by nongovernmental
entities in preparation of financial statements in conformity with generally
accepted accounting principles in the United States. SFAS No. 168 is
effective for interim and annual periods ending after September 15, 2009. The
adoption of SFAS No. 168 will not impact our financial position or results of
operations.
Notes
to Condensed Financial Statements
2.
Restructuring
On
September 1, 2009, we announced a plan to consolidate our product development
and product management leadership functions in our Oakland, California
headquarters. Under this plan, we expect to close our Waltham, Massachusetts
office by the end of 2009. Approximately half of the Waltham office personnel
are expected to remain with the company, while the remaining Waltham employees
are expected to leave the company by the end of 2009. We notified the employees
affected by the workforce reduction on September 1, 2009.
The
Waltham office was acquired by Scientific Learning as part of its acquisition of
the Reading Assistant product line in January 2008. We plan to continue to
support and improve the Reading Assistant products, including the new Reading
Assistant Expanded Edition that was launched in September 2009.
Restructuring
costs were mainly recorded under Research and Development in our Condensed
Statement of Operations and are shown in the following table (dollars in
thousands):
Accrued
at September 1, 2009
|
$ | 136 | ||
Cash
paid
|
(14 | ) | ||
Write
offs
|
(9 | ) | ||
Accrued
at September 30, 2009
|
$ | 113 |
We expect
to pay the majority of these costs during the fourth quarter of fiscal 2009. We
also expect to incur additional restructuring costs in the fourth quarter as a
result of closing the Waltham office prior to the end of the lease
term.
3.
Stock-Based Compensation
Accounting
for Stock-Based Compensation
We
recognized stock-based compensation expense of $286,000 and $1.0 million in the
three months and nine months ended September 30, 2009, respectively, compared
with of $443,000 and $1.6 million for the three and nine months ending September
30, 2008.
Valuation of Stock Option
Awards
The fair
value of each option award is estimated on the date of grant using the
Black-Scholes option valuation model. This model requires the input of
subjective assumptions, including expected stock price volatility, the estimated
life of each award and estimated pre-vesting forfeitures. The fair value of
these stock options was estimated assuming no expected dividends and estimates
of expected life, volatility and risk-free interest rate at the time of grant.
Estimated volatility is based on the historical prices of our common stock over
the expected life of each option. Expected life of the options is based on our
history of option exercise and cancellation activity. The risk free interest
rates used are based on the U.S. Treasury yield curve in effect at the time of
grants for periods corresponding with the expected life of the options. We use
historical data to estimate pre-vesting option forfeitures. We
recognize compensation expense for the fair values of these awards, which
typically have graded vesting, on a straight-line basis over the requisite
service period of each of these awards.
Notes
to Condensed Financial Statements
3.
Stock-Based Compensation (continued)
Summary
of Stock Options
We
granted 487,900 and 30,000 stock options in the nine month periods ended
September 30, 2009 and 2008, respectively, and 133,900 and 30,000 for the three
month periods ended September 30, 2009 and 2008, respectively.
The
aggregate intrinsic value of options outstanding at September 30, 2009 was
approximately $3.3 million and is calculated as the difference between the
exercise price of the underlying options and the market price of our common
stock for the 1,777,132 shares that had exercise prices that were lower than the
$3.50 market price of our common stock at September 30, 2009 (“in the money
options”). The total intrinsic value of options exercised during the nine months
ended September 30, 2009 and 2008 was $121,000 and $144,000,
respectively. The intrinsic value of options vested during the nine
months ended September 30, 2009 and 2008 was $296,000 and $669,000,
respectively.
As of
September 30, 2009, total unrecognized compensation cost related to stock
options granted under our various plans was $600,000. We expect that cost to be
recognized over a weighted-average period of 2.9 years.
Summary
of Restricted Stock Units
We
granted 61,721 and 382,900 restricted stock units during the nine month periods
ended September 30, 2009 and 2008, respectively, and zero and 2,500 restricted
stock units for the three month periods ended September 30, 2009 and 2008,
respectively.
The fair
value of restricted stock units was calculated based upon the fair market value
of our stock at the date of grant, less an estimate of pre-vesting forfeitures.
The weighted-average grant-date fair value of restricted stock units awarded
during the nine months ending September 30, 2009 and 2008 was $1.96 and $4.74,
respectively, and zero and $3.60 for the three month periods ended September 30,
2009 and 2008, respectively.
Disclosures
Pertaining to All Share-Based Compensation Plans
Cash
received under all share-based payment arrangements for the nine months ended
September 30, 2009 and 2008 was $402,000 and $451,000 respectively, related to
the exercise of stock options. Because of our net operating losses and related
valuation allowance, we did not realize any tax benefits for the tax deductions
from share-based payment arrangements during the nine months ended September 30,
2009 or 2008.
4. Comprehensive
Loss
We have
no items of other comprehensive loss, and accordingly, the comprehensive loss is
equal to the net loss for all periods presented.
5. Warranties;
Indemnification
We
generally provide a warranty that our software products substantially operate as
described in the manuals and guides that accompany the software for a period of
90 days. The warranty does not apply in the event of misuse, accident, and
certain other circumstances. To date, we have not incurred any material costs
associated with these warranties and have no accrual for such items at September
30, 2009.
Notes
to Condensed Financial Statements
5. Warranties; Indemnification
(continued)
From time
to time, we enter into contracts that require us, upon the occurrence of certain
contingencies, to indemnify parties against third party claims. These contingent
obligations primarily relate to (i) claims against our customers for violation
of third party intellectual property rights caused by our products; (ii) claims
resulting from personal injury or property damage resulting from our activities
or products; (iii) claims by our office lessor arising out of our use of the
premises; and (iv) agreements with our officers and directors under which we may
be required to indemnify such persons for liabilities arising out of their
activities on behalf of ourselves. Because the obligated amounts for these types
of agreements usually are not explicitly stated, the overall maximum amount of
these obligations cannot be reasonably estimated. No liabilities have been
recorded for these obligations on our balance sheet as of September 30, 2009 or
December 31, 2008.
6.
Bank Line of Credit
On
January 30, 2009 we amended our existing revolving line of credit agreement with
Comerica Bank. The maximum that can be borrowed under the agreement
is $5.0 million. The line expires on December 31, 2009. Borrowing
under the line of credit bears interest at a “daily adjusting LIBOR
rate.” Borrowings under the line are subject to reporting covenants
requiring the provision of financial statements to Comerica, and, as amended,
financial covenants requiring us to maintain a minimum adjusted quick
ratio of 1.15 and net worth not less than negative $2 million. The agreement
includes a letter of credit sublimit not to exceed $1.0 million. At September
30, 2009, we have no outstanding borrowings, an outstanding letter of credit for
$206,000, and we are in compliance with all of our covenants. During the three
months ended September 30, 2009 we repaid the $2.5 million that we had borrowed
in the three months ended March 31, 2009.
7.
Provision for Income Taxes
In the
three and nine months ending September 30, 2009, we recorded income tax expense
of $301,000 and $367,000, respectively. For the three and nine months ended
September 30, 2008 we recorded an income tax benefit of $36,000 and an expense
of $1.2 million, respectively. The tax expense for the nine months ended
September 30, 2009 consists primarily of deferred tax expense relating to the
amortization of acquired goodwill, federal tax expense, and state tax expense.
The tax expense for the nine months ended September 30, 2008 consisted primarily
of the establishment of valuation allowance against our deferred tax
assets.
Statement
of Financial Accounting Standards ASC 740, “Accounting for Income Taxes”
provides for the recognition of deferred tax assets if realization of such
assets is more likely than not. We have established and continue to maintain a
full valuation allowance against our deferred tax assets as we do not believe
that realization of those asserts is more likely than not.
At
September 30, 2009, we have unrecognized tax benefits of approximately $1.9
million. We have approximately $4,000 of unrecognized tax benefits that, if
recognized, would affect our effective tax rate. We do not believe there will be
any material changes in our unrecognized tax positions over the next twelve
months. Interest and penalty costs related to unrecognized tax benefits are
insignificant and classified as a component of “Income Tax Expense” in the
accompanying statement of operations.
We file
income tax returns in the U.S. federal jurisdiction and various state
jurisdictions. Tax returns remain open to examination by the appropriate
governmental agencies for tax years 2006 to 2008. The federal and state taxing
authorities may choose to audit tax returns for tax years beyond the statue of
limitation period due to significant tax attribute carryforwards from prior
years, making adjustments only to carryforward attributes. We are not currently
under audit in any major tax jurisdiction.
Notes to Condensed Financial
Statements
8.
Software and web site development costs
Software
development costs incurred subsequent to the establishment of technological
feasibility are capitalized and amortized over the estimated lives of the
related products. Technological feasibility is established upon completion of a
working model. In the nine months ended September 30, 2009, we
capitalized approximately $986,000 of costs relating to our new Reading
Assistant product that had reached technological feasibility. We began
amortizing these costs to cost of product revenues over the estimated useful
life of the software, which is expected to be three years, starting when the
product was released for sale in September 2009. We recorded
amortization expense of $9,000 in the three months ended September 30,
2009.
At
September 30, 2009 we have capitalized approximately $586,000 in web site
development costs. We began to amortize these costs during the
three months ended June 30, 2009, and we have recorded amortization
expense of $42,000 through September 30, 2009. Costs will be
amortized over a period corresponding to the estimated life of the related
products, expected to be five
years.
|
9.
Fair value measurements
Effective
January 1, 2008, we adopted SFAS No. 157, “Fair Value Measurements.” Level 1
financial assets measured at fair value on a recurring basis consist of money
market funds (cash equivalents) of approximately $16.7 million as of September
30, 2009 and approximately $6.8 million at December 31, 2008. We have
no Level 2 or Level 3 financial assets measured at fair value on a recurring
basis as of September 30, 2009 or at December 31, 2008.
10.
Inventories
Inventories
of $505,000 and $236,000 at September 30, 2009 and December 31, 2008,
respectively, are included in “Prepaid expenses and other current assets” and
consist entirely of finished goods.
Item
2. Management’s Discussion and Analysis of Financial
Conditions and Results of Operations
This
report contains forward-looking statements. Forward-looking
statements are not historical facts but rather are based on current expectations
about our business and industry, as well as our beliefs and
assumptions. Words such as “may,” “will,” “should,” “expects,”
“intends,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,”
“potential,” “continue” and variations and negatives of these words and similar
expressions are used to identify forward-looking
statements. Statements regarding our expectations for our future
business results and financial position, our business strategies and objectives,
and trends in our market are forward-looking statements. Forward-looking
statements are not guarantees of future performance or events, and are subject
to risks, uncertainties and other factors, many of which are beyond our control
and some of which we may not even be presently aware. As a result,
our future results and other future events or trends may differ materially from
those anticipated in our forward-looking statements. Specific factors
that might cause such a difference include, but are not limited to, the risks
and uncertainties discussed in this Management’s Discussion and in the Risk
Factors section of this report. We also refer you to the risk factors that are
or may be discussed from time to time in our public announcements and filings
with the SEC, including our future Forms 8-K, 10-Q and 10-K. Readers
are cautioned not to place undue reliance on forward-looking statements, which
reflect our view only as of the date of this report. We undertake no
obligation to update or revise publicly any forward-looking statements, whether
as a result of new information, future events or otherwise after the date of
this report.
Overview
We
develop, distribute and license technology that accelerates learning by
improving the processing efficiency of the brain. Based on more than
30 years of neuroscience and cognitive research, our family of products improves
brain fitness with technology-based exercises that build the cognitive skills
required to read and learn effectively. Extensive outcomes research by
independent researchers, our founding scientists, school districts and our
company demonstrates the rapid and lasting gains achieved through participation
in our products. Our products are marketed primarily to K-12 schools in the US,
to whom we sell through a direct sales force. To facilitate the use
of our products, we offer a variety of on-site and remote professional and
technical services, as well as phone, email and web-based
support. Since our inception, learners have used our products nearly
1.8 million times and approximately 6,000 schools have purchased at least
$10,000 of our product licenses and services. As of September 30,
2009 we had 199 full-time equivalent employees, compared to 223 at December 31,
2008.
In
January 2009 we announced a 14% reduction in our workforce which was implemented
during the first quarter of 2009. On September 1, 2009, we announced
a plan to consolidate our product development and product management leadership
functions in our Oakland, California headquarters. Under this plan, we expect to
close our Waltham, Massachusetts office by the end of
2009. Approximately seven Waltham employees are expected to leave the
company by the end of 2009.
Business
Highlights
We market
our Fast ForWord and Reading Assistant products primarily as a reading
intervention solution for struggling and special education students and English
Language Learners. According to the U.S. Department of Education, in
2007, 33% of fourth graders in the United States had “below basic” reading
scores and 67% were not proficient in reading, and between 1992 and 2007 there
was only a modest improvement in the proportion of fourth graders performing at
the “below basic” level. While our installed base is growing, the
approximately 6,000 schools that have purchased at least $10,000 of our product
licenses and services represent a small fraction of the approximately 115,000
K-12 schools in the US.
Federal
education funds are a critical resource in helping school districts address the
needs of the most challenged learners. We believe that a significant
proportion of our sales are funded by federal sources, particularly Title One
and IDEA (special education) grants. With the passage of the American
Recovery and Reinvestment Act (“ARRA” - the recent stimulus bill), these two
federal sources are together projected to increase from $24.9 billion in the
2008 – 2009 school year to $37 billion in the 2009 – 2010 school year. In most
states the ARRA funds have been and are being disbursed to school districts, and
we believe that the ARRA funding has had a substantial positive impact on our
2009 sales.
State
funds also provide school districts with funds that are used to purchase our
products. State funds provide school districts with the majority of their
funding, and those funds are also sometimes used to purchase our
products. States faced severe budget shortfalls in fiscal 2009 and
forecast continuing funding difficulties in 2010. The National
Conference of State Legislatures estimates that the cumulative state budget gap
was $113.2 billion in fiscal 2009, and in June 2009, forecast a cumulative
budget gap for fiscal 2010 of $142.6 billion, involving 46 states.
Company
Highlights
For the
three months ended September 30, 2009, our total revenue increased by 60%
compared to the three months ended September 30, 2008 and for the nine months
ended September 30, 2009 our total revenue increased 12%. These revenue
increases were primarily caused by strong sales driven by the improvement in the
school funding environment, resulting from the temporary federal stimulus
funding, and by sales productivity enhancements. Revenue for the
three months ended September 30, 2009 also benefited from the recognition of
approximately $2 million of revenue that was previously deferred at June 30,
2009 relating to our Reading Assistant Expanded edition product upon the
product’s release in September 2009. Product revenue increased by 107% and 22%
for the three and nine month periods ended September 30, 2009, respectively,
compared to the same periods in 2008. Service and support revenue
decreased by 8% in the three months ended September 30, 2009 compared to the
three months ended September 30, 2008 and by 2% for the nine month period,
mainly because of incremental OEM revenue that was recognized in
2008.
For the
three months and nine months ended September 30, 2009, our total booked sales
increased by 72% and 27%, respectively, over the same periods in
2008. (Booked sales is a non-GAAP financial measure. For
more explanation on booked sales, see Revenue below). K-12 sales
increased by 83% and 36% in the three and nine month periods ended September 30,
2009, respectively, compared to the same periods in 2008, and non school sales,
including private practice, international and OEM customers, decreased by 38%
and 35% in the same periods. The flow of federal stimulus funds to individual
school districts and the spending requirements linked to these funds put school
districts in a better position to execute new purchases during the quarter.
Booked sales also benefited from a large $6.9 million deal that closed in early
July. For the three months ended September 30, 2009, we closed 38 transactions
in excess of $100,000, compared to 23 in the third quarter of 2008. We believe
that the decrease in non school sales is primarily caused by adverse economic
conditions affecting our customers in both the private practice and
international markets.
For the
three months and nine months ended September 30, 2009, gross margin improved by
8% and 4% compared to the same periods in 2008, mainly due to a change in
revenue mix towards higher margin product. Operating expenses increased by 11%
and decreased by 8% for the three months and nine months ended September 30,
2009, respectively, as cost savings resulting from our restructuring initiative
in January 2009 were partially offset by increased bonus and commission expense
arising from our strong financial performance in the current
quarter.
We
recorded a net income of $6.5 million for the three months ended September 30,
2009 compared to a net income of $590,000 in the same period in
2008. We recorded a net income of $3.3 million for the nine months
ended September 30, 2009 compared to a net loss of $4.5 million in the same
period in 2008.
At
September 30, 2009 we had no borrowings under our credit line with Comerica
Bank.
Results of
Operations
Revenues
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||||||||||
(dollars
in thousands)
|
2009
|
Change
|
2008
|
2009
|
Change
|
2008
|
||||||||||||||||||
Products
|
$ | 15,510 | 107 | % | $ | 7,475 | $ | 25,630 | 22 | % | $ | 21,009 | ||||||||||||
Service
and support
|
4,783 | -8 | % | 5,220 | 13,904 | -2 | % | 14,252 | ||||||||||||||||
Total
revenues
|
$ | 20,293 | 60 | % | $ | 12,695 | $ | 39,534 | 12 | % | $ | 35,261 |
Product
revenues increased by 107% and 22% during the three months and nine months ended
September 30, 2009 respectively, compared to the same periods in 2008. The
increase in the three months ended September 30, 2009 was due to higher booked
sales, including one transaction for $6.9 million where we recognized product
revenue of $3.2 million, and the recognition of approximately $2 million of
revenue related to our Reading Assistant Expanded Edition product. This revenue
resulted from sales in prior quarters that included Reading Assistant Expanded
Edition software, which was deferred until the product’s release in September
2009. The increase in the nine months ended September 30, 2009 is
primarily due to higher booked sales, reflecting the impact of federal stimulus
funding and sales productivity improvements.
Our
service and support revenue decreased by 8% and 2% respectively during the three
months and nine months ended September 30, 2009 compared to the same periods in
2008, mainly due to the recognition during 2008 of OEM revenue relating to the
operations we purchased in our acquisition of Soliloquy in January 2008.
Excluding the impact of OEM revenue, service and support revenue is essentially
flat over 2008.
Booked
sales and selling activity: Booked sales is a non-GAAP
financial measure that management uses to evaluate current selling
activity. We believe that booked sales is a useful metric for
investors as well as management because it is the most direct measure of current
demand for our products and services. Booked sales equals the total
value (net of allowances) of software, services and support invoiced in the
period. We record booked sales and deferred revenue when all of the
requirements for revenue recognition have been met, other than the requirement
that the revenue for software licenses and services has been earned. We use
booked sales information for resource allocation, planning, compensation and
other management purposes. We believe that revenue is the most
comparable GAAP measure to booked sales. However, booked sales should
not be considered in isolation from revenues, and is not intended to represent a
substitute measure of revenues or any other performance measure calculated under
GAAP.
The
following reconciliation table sets forth our booked sales, revenues and change
in deferred revenue for the three and nine months ended September 30, 2009 and
2008:
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||||||||||
(dollars
in thousands)
|
2009
|
Change
|
2008
|
2009
|
Change
|
2008
|
||||||||||||||||||
Total
deferred revenue beginning of period
|
$ | 18,614 | $ | 20,621 | $ | 19,952 | $ | 22,955 | ||||||||||||||||
Booked
sales
|
26,122 | 72 | % | 15,185 | 45,115 | 27 | % | 35,417 | ||||||||||||||||
Less:
revenue
|
20,293 | 60 | % | 12,695 | 39,534 | 12 | % | 35,261 | ||||||||||||||||
Other
adjustments
|
733 | - | (357 | ) | - | |||||||||||||||||||
Total
deferred revenue end of period
|
$ | 25,176 | 9 | % | $ | 23,111 | $ | 25,176 | 9 | % | $ | 23,111 |
For the
three months and nine months ended September 30, 2009, our total booked sales
increased by 72% and 27%, respectively, over the same periods in
2008. K-12 sales increased by 83% and 36% in the three and nine month
periods ended September 30, 2009, respectively, compared to the same periods in
2008. The flow of federal stimulus funds to individual school districts and the
spending requirements linked to these funds put school districts in a better
position to execute new purchases during the quarter. Booked sales also
benefited from a large $6.9 million deal that closed in early
July.
Booked
sales to non school customers, including private practice clinicians and
international customers, decreased by 38% and 35% in the three months and nine
months ended September 30, 2009 compared to the same periods in 2008. We believe
that the decrease in non school sales is primarily caused by adverse economic
conditions affecting our customers in both the private practice and
international markets.
During
the third quarter of 2009, we closed 38 K-12 sales that had a contract value in
excess of $100,000, compared to 23 for the same period in 2008. For the three
months ended September 30, 2009, approximately 79% of our K-12 booked sales were
realized from booked sales over $100,000. For the comparable period
in 2008, these large booked sales accounted for approximately 60% of K-12 booked
sales. Large booked sales include volume and negotiated discounts but the
percentage discount applicable to any given transaction will vary and the
relative percentage of large booked sales and smaller booked sales in a given
quarter may fluctuate. Because we discount product license fees but
do not discount service and support fees, product booked sales and revenue are
disproportionately affected by discounting. We cannot predict the
size and number of large transactions in the future.
Although
the current economic and financial conditions, the temporary nature of federal
stimulus funding, and federal, state and local budget pressures make for an
uncertain funding environment for our customers, we remain optimistic about our
growth prospects in the K-12 market. However, achieving our growth
objectives will depend on increasing customer acceptance of our products, which
requires us to continue to focus on improving our products’ ease of use, their
fit with school requirements, and our connection with classroom teachers and
administrators. Our K-12 growth prospects are also influenced by
factors outside our control, including general economic conditions and the
overall level, certainty and allocation of state, local and federal
funding. While federal funding for education has grown steadily over
the last few decades, the current extraordinary federal commitments intended to
stabilize the financial markets are likely to put pressure on all areas in the
federal budget. In addition, school district spending based on
federal education stimulus funding is expected to decline after 2010 and end
after 2011. States are forecasting continued shortfalls in their taxation
revenues for their fiscal 2010 largely due to the significant adverse conditions
in the credit and housing markets and the national and global recession. These
conditions may impact state education spending. In addition, the revenue
recognized from our booked sales can be unpredictable. Our various
license and service packages have substantially differing revenue recognition
periods, and it is often difficult to predict which license package a customer
will purchase, even when the amount and timing of a sale can be reasonably
projected. See “Management’s Discussion and Analysis
– Application of Critical Accounting Policies” in our Annual Report on
Form 10-K for the year ended December 31, 2008 for a discussion of our revenue
recognition policy. In addition, the timing of a single large order
or its implementation can significantly impact the level of booked sales and
revenue at any given time. See “Risk Factors” for a further
discussion of some of the factors that affect our sales and
revenue.
Gross
Profit and Cost of Revenues
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||
(dollars
in thousands)
|
2009
|
2008
|
2009
|
2008
|
||||||||||||
Gross
profit on products
|
$ | 14,495 | $ | 6,876 | $ | 23,669 | $ | 19,323 | ||||||||
Gross
profit margin on products
|
93 | % | 92 | % | 92 | % | 92 | % | ||||||||
Gross
profit on service and support
|
2,547 | 2,809 | 7,462 | 6,973 | ||||||||||||
Gross
profit margin on services and support
|
53 | % | 54 | % | 54 | % | 49 | % | ||||||||
Total
gross profit
|
$ | 17,042 | $ | 9,685 | $ | 31,131 | $ | 26,296 | ||||||||
Total
gross profit margin
|
84 | % | 76 | % | 79 | % | 75 | % |
The
overall gross profit margin increased by 8% and 4% respectively in the three
months and nine months ended September 30, 2009 compared to the same periods in
the prior year, mainly due to a revenue mix shift. Higher margin
product revenues made up 76% and 65% of total revenues in the three and nine
months ended September 30, 2009, respectively, compared to 59% and 60% in the
same periods in 2008. Product margins increased by 1% in the three
months ended September 30, 2009, and were flat for the nine month period, as
increased amortization expense arising from the intangible assets acquired from
Soliloquy and product costs associated with Reading Assistant were offset by
proportionately lower royalty costs. Service and support margins
improved in the nine months ended September 30, 2009 compared to the same period
in 2008 principally due to year over year price increases and cost savings
resulting from more efficient delivery of services.
Operating
Expenses
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||||||||||
(dollars
in thousands)
|
2009
|
Change
|
2008
|
2009
|
Change
|
2008
|
||||||||||||||||||
Sales
and marketing
|
$ | 6,243 | 17 | % | $ | 5,329 | $ | 16,967 | -8 | % | $ | 18,461 | ||||||||||||
Research
and development
|
1,846 | 19 | % | 1,545 | 4,588 | -13 | % | 5,267 | ||||||||||||||||
General
and administrative
|
2,169 | -10 | % | 2,398 | 6,019 | -5 | % | 6,346 | ||||||||||||||||
Total
operating expenses
|
$ | 10,258 | 11 | % | $ | 9,272 | $ | 27,574 | -8 | % | $ | 30,074 |
Sales and Marketing
Expenses: For the three and nine months ended September 30,
2009, our sales and marketing expenses increased by 17% and decreased by 8%,
respectively, compared to the same periods in 2008. The increase in
the three months ended September 30, 2009 is mostly due to higher commission
expense as a result of the strong sales performance. The decrease for the nine
months ended September 30, 2009 is primarily due to lower headcount related
costs as a result of the restructuring actions taken in January 2009. At
September 30, 2009, we had 43 quota-bearing sales personnel compared to 51 at
September 30, 2008.
Research and Development Expenses:
Research and development expenses increased by 19% and decreased by 13%
in the three and nine months ended September 30, 2009, compared to the same
periods in 2008. The increase in the three months ended September 30, 2009 is
mainly due to an increase in bonus expense of $273,000 and a decrease in OEM
customization costs transferred to cost of revenue of $172,000. The decrease for
the nine months ended September 30, 2009 is due to the capitalization of
approximately $1.1 million of development costs, mostly relating to our Reading
Assistant Expanded Edition product, and a decrease in headcount related costs of
$366,000 as a result of the restructuring actions taken in January 2009,
partially offset by a decrease in OEM customization costs transferred to cost of
revenue of $415,000 and increased bonus expense of $402,000. Research and
development expenses principally consist of compensation paid to employees and
consultants engaged in research and product development activities and product
testing, together with software and equipment costs.
General and Administrative Expenses:
For the three and nine months ended September 30, 2009, our general and
administrative expenses decreased by 10% and 5%, respectively, compared to the
same periods in 2008. The decreases in the three and nine months ended September
30, 2009 are mainly due to a decrease in bad debt expense of $394,000 and
$316,000, respectively. Increases in bonus expense were largely offset by
decreases in headcount related costs.
Interest
and Other Income (Expense)
Three
Months Ended September 30,
|
Nine
Months Ended September 30,
|
|||||||||||||||||||||||
(dollars
in thousands)
|
2009
|
Change
|
2008
|
2009
|
Change
|
2008
|
||||||||||||||||||
Net
interest income (expense)
|
$ | (5 | ) | -138 | % | $ | 13 | $ | (24 | ) | -125 | % | $ | 97 | ||||||||||
Reclassification
of service revenue
|
40 | -45 | % | 73 | 177 | -18 | % | 217 | ||||||||||||||||
Other
|
(63 | ) | -215 | % | 55 | (63 | ) | -140 | % | 159 | ||||||||||||||
Interest
and other income (expense), net
|
$ | (28 | ) | -120 | % | $ | 141 | $ | 90 | -81 | % | $ | 473 |
Interest
and other income decreased in both the three and nine month periods ended
September 30, 2009 compared to the prior year periods because of lower
reclassifications of service and support revenue relating to a customer for whom
we are no longer performing services, less interest on our cash balances,
interest expense on our bank loan from January through August 2009, a $54,000
loss on disposal of a fixed asset in the three months ended September 30, 2009
and the reclassification of royalty income from Posit Science which is now
classified as product revenue.
Provision
for Income Taxes
In the
three and nine months ending September 30, 2009, we recorded income tax expense
of $301,000 and $367,000, respectively. For the three and nine months ended
September 30, 2008 we recorded an income tax benefit of $36,000 and an expense
of $1.2 million, respectively. The tax expense for the nine months ended
September 30, 2009 consists primarily of deferred tax expense relating to the
amortization of acquired goodwill, federal tax expense, and state tax expense.
The tax expense for the nine months ended September 30, 2008 consisted primarily
of the establishment of valuation allowance against our deferred tax
assets.
Statement
of Financial Accounting Standards ASC 740, “Accounting for Income Taxes”
provides for the recognition of deferred tax assets if realization of such
assets is more likely than not. We have established and continue to maintain a
full valuation allowance against our deferred tax assets as we do not believe
that realization of those asserts is more likely than not.
At
September 30, 2009, we have unrecognized tax benefits of approximately $1.9
million. We have approximately $4,000 of unrecognized tax benefits that, if
recognized, would affect our effective tax rate. We do not believe there will be
any material changes in our unrecognized tax positions over the next twelve
months. Interest and penalty costs related to unrecognized tax benefits are
insignificant and classified as a component of “Income Tax Expense” in the
accompanying statement of operations.
We file
income tax returns in the U.S. federal jurisdiction and various state
jurisdictions. Tax returns remain open to examination by the appropriate
governmental agencies for tax years 2006 to 2008. The federal and state taxing
authorities may choose to audit tax returns for tax years beyond the statue of
limitation period due to significant tax attribute carryforwards from prior
years, making adjustments only to carryforward attributes. We are not currently
under audit in any major tax jurisdiction.
Liquidity and Capital
Resources
Our cash
and cash equivalents were $16.9 million at September 30, 2009, compared to $7.6
million at December 31, 2008.
We expect
that during at least the next twelve months our cash flow from operations
together with our current cash balances will be our primary source of liquidity
and will be sufficient to provide the necessary funds for our operations and
capital expenditures. Historically, we have used cash in our operations during
the first half of the year and built cash in the second half. This pattern
results largely from our seasonally low sales in the first calendar quarter,
which reflects our industry pattern, and the time needed to collect on sales
made towards the end of the second quarter. Reflecting this pattern as well as
the significant sales increase in the third quarter, in the first six months of
2009, we used $4.2 million in operating activities and in the three months ended
September 30, 2009, we generated $14.7 million of cash from operations. We
expect that cash flow from operations will be sufficient to fund our operating
requirements during fiscal 2010. Accomplishing this, however, will require us to
meet specific booked sales targets in the K-12 market. We cannot assure you that
we will meet our targets with respect to booked sales, revenues, expenses or
operating results.
We
have a revolving line of credit agreement with Comerica Bank that expires
on December 31, 2009. The maximum that can be borrowed under
the agreement is $5.0 million. Borrowings under the line are subject to
reporting covenants requiring the provision of financial statements to
Comerica, and a financial covenant requiring us to maintain a minimum
adjusted quick ratio of 1.15 and net worth not less than negative $2
million. The agreement allows us to issue letters of credit not to exceed
$1.0 million. At September 30, 2009, we have an outstanding letter of
credit for $206,000. There were no borrowings outstanding on the line of
credit at September 30, 2009 and we were in compliance with all related
covenants.
|
If
we are unable to achieve sufficient cash flow from operations, we may seek
other sources of debt or equity financing, or may be required to reduce
expenses. Reducing our expenses could adversely affect operations by
reducing the resources available for sales, marketing, research or product
development. We cannot assure you that we will be able to
secure additional debt or equity financing on acceptable terms, if at
all.
|
Net cash
provided by operating activities for the nine months ended September 30, 2009
was $10.5 million compared to cash used of $5.2 million during the same period
in 2008. This improvement was mainly the result of lower expenses as
a result of our January 2009 restructuring actions and higher receivable
collections resulting from our stronger sales performance.
Net cash
used in investing activities for the nine months ended September 30, 2009 was
$1.6 million, due to capital spending and additions to capitalized software. Net
cash used in investing activities for the nine months ended September 30, 2008
was $10.3 million, due principally to the acquisition of the assets of Soliloquy
Learning.
Financing
activities generated $402,000 for the nine months ended September 30,
2009, compared to $451,000 for the nine months ended September 30, 2008, from
proceeds from the exercise of stock options.
In the
nine months ended September 30, 2009 we borrowed and repaid $2.5 million from
our credit facility. In the nine months ended September 30, 2008 we had no
borrowings.
Off-Balance Sheet
Arrangements
We have
no off-balance sheet arrangements.
Contractual Obligations and
Commitments
We have a
non-cancelable lease agreement for our corporate office
facilities. From 2009 through the end of the lease, the base lease
payment increases at a compound annual rate of approximately 5%. The lease
expires in December 2013. We also have a lease agreement for our
Tucson, Arizona office through May 2013 at an average rent of approximately
$11,000 per month, and a lease for our Reading Assistant operations in Waltham,
Massachusetts for approximately 6,000 square feet at an average monthly rent of
approximately $12,000 that expires in September 2011. We are seeking
to enter into a sublease agreement for the Waltham lease as we are ceasing
operations in that location (see Note 2).
The
following table summarizes our obligations at September 30, 2009 and the effects
such obligations are expected to have on our liquidity and cash flow in future
periods:
(dollars
in thousands)
|
Less
than 1 year
|
2-3
years
|
4-5
years
|
Thereafter
|
Total
|
|||||||||||||||
Contractual
Obligations:
|
||||||||||||||||||||
Operating
lease obligations
|
$ | 1,294 | $ | 2,606 | $ | 1,250 | $ | 311 | $ | 5,461 | ||||||||||
Purchase
obligations
|
150 | 300 | 300 | 150 | $ | 900 | ||||||||||||||
Total
|
$ | 1,444 | $ | 2,906 | $ | 1,550 | $ | 461 | $ | 6,361 |
Our
purchase order commitments at September 30, 2009 are not
material.
Application of Critical
Accounting Policies
Our
financial statements are prepared in accordance with accounting principles
generally accepted in the United States (“GAAP”). These accounting principles
require us to make certain estimates, assumptions and judgments. We believe that
the estimates, assumptions and judgments upon which we rely are reasonable based
upon information available to us at the time. The estimates, assumptions and
judgments that we make can affect the reported amounts of assets and liabilities
as of the date of the financial statements, as well as the reported amounts of
revenues and expenses during the periods presented. To the extent there are
material differences between these estimates and actual results, our financial
statements would be affected.
We
believe that, as discussed in our most recent Report on Form 10-K, the
estimates, assumptions and judgments pertaining to revenue recognition, the
allowance for doubtful accounts, income taxes, and stock based compensation are
the most critical assumptions to understand in order to evaluate our reported
financial results. There has been no change to these policies.
In
addition, as discussed in Note 8 to the Condensed Financial Statements, in the
nine months ended September 30, 2009 we capitalized approximately $986,000 of
costs relating to a new Reading Assistant product that had reached technological
feasibility. The rules that govern how development costs are accounted for can
have a major impact on our reported financial results. Significant judgment is
required in assessing whether and when products have reached technological
feasibility. We are also required to use judgment to estimate the net realizable
value of the asset by projecting future revenues and cash flows expected to be
generated by the products, in order to determine whether the unamortized cost
exceed the net realizable value. Moreover, any future changes to our software
product offerings could result in write-offs of previously capitalized costs and
have a significant impact on our financial results.
Item
3. Quantitative and Qualitative Disclosures about Market
Risk
Interest Rate
Risk
Our
exposure to market risk for changes in interest rates relates primarily to the
rate of interest that we earn on our cash and cash equivalents. A hypothetical
increase or decrease in market interest rates by 10% from the market interest
rates at September 30, 2009 would not have a material affect on our results of
operations.
Item
4T. Controls and Procedures
Evaluation
of Disclosure Controls and Procedures
Disclosure
controls and procedures are designed to ensure that information required to be
disclosed in our reports filed under the Exchange Act, such as this Quarterly
Report on Form 10-Q, is recorded, processed, summarized and reported within the
required time periods. These procedures are also designed to ensure that such
information is accumulated and communicated to our management, including our
Chief Executive Officer and Chief Financial Officer, as appropriate to allow
timely decisions regarding required disclosure.
As
required under Rule 13a-15(b) of the Exchange Act, our management, including the
Chief Executive Officer and Chief Financial Officer, conducted an evaluation of
the effectiveness of the Company’s disclosure controls and procedures as of the
end of the period covered by this Quarterly Report on Form 10-Q, and concluded
that our disclosure controls and procedures were effective as of September 30,
2009.
It should
be noted that a control system, no matter how well designed and operated, can
provide only reasonable, not absolute, assurance that the objectives of the
control system are met. As a result, there can be no assurance that a control
system will succeed in preventing all possible instances of error and
fraud. Our disclosure controls and procedures are designed to provide
reasonable assurance of achieving their objectives, and the conclusions of our
Chief Executive Officer and the interim Chief Financial Officer are made at the
“reasonable assurance” level.
Changes
in Internal Controls over Financial Reporting
There
were no changes in our internal control over financial reporting that occurred
during the three months ended September 30, 2009 that have materially affected,
or are reasonably likely to materially affect, our internal control over
financial reporting.
PART
II. OTHER INFORMATION
Item
1. Legal Proceedings
None.
Item
1A. Risk Factors
RISK
FACTORS
The
following factors as well as other information contained in this report should
be considered in making any investment decision related to our common stock. If
any of the following risks actually occurs, our business, financial condition
and results of operations could be materially and adversely affected and the
trading price of our common stock could decline.
Our
sales cycle tends to be long and somewhat unpredictable, which may result in
delayed or lost revenue, which could materially and adversely impact our revenue
and profitability.
Like
other companies in the instructional market, our sales to K-12 schools are
affected by school purchasing cycles and procedures, which can be quite
bureaucratic. The cost of some of our K-12 license packages requires
multiple levels of approval in a political environment, which results in a
time-consuming sales cycle that can be difficult to predict. When a
district decides to finance its license purchase, the time required to obtain
necessary approvals can be extended even further. In addition, sales
to schools are subject to budgeting constraints, which may require schools to
find available discretionary funds, obtain grants or wait until subsequent
budget cycles. As a result, our sales cycle generally takes months,
and in some cases, can take a year or longer. We believe that the
severity of the current economic downturn and the resulting funding
uncertainties have lengthened this cycle and may be making it less
predictable. Therefore, we may devote significant time and energy to
a particular customer sale over the course of many months, and then not make the
sale when expected or at all. This can result in lost opportunities
that can materially and adversely impact our revenue and profit.
Sales
of our products depend on the availability of government funding for public
school reading intervention purchases, which is variable and outside the control
of both us and our direct customers. If such funding becomes less
available, our public school customers may be unable to purchase our products
and services on a scale or at prices that we anticipate, which would materially
and adversely impact our revenue and net income.
United
States public schools are funded primarily through state and local tax revenues,
which are devoted primarily to school building costs, teacher salaries and
general operating expenses. Public schools also receive funding from
the federal government through a variety of federal programs, many of which
target children who are poor and/or are struggling
academically. Federal funds typically are restricted to specified
uses. We believe that the funding for a substantial portion of our
K-12 sales comes from federal funding, in particular IDEA (special education)
and Title One funding.
State and
local school funding is being significantly impacted by decreases in tax
revenues due to the current severe economic downturn. States experienced
substantial budget gaps in fiscal 2009 and face increasing pressure in 2010,
primarily due to the significant adverse events in the credit, housing and job
markets and the national and global recession. While education spending remains
an important priority for states, it faces competition from demands for, among
other things, relief for homeowners, transportation spending and rising
healthcare costs. A continued reduction in state tax revenues could
have a materially adverse impact on our revenue.
When
state and local funding is reduced, federal funding becomes even more important
for school districts. While the American Recovery and Reinvestment
Act (ARRA) provides very substantial increases in funding for IDEA and Title One
over a two-year period, the competition between vendors and programs for that
funding is intense. In addition, there has been some uncertainty over
the rules governing the use of the increased funding, causing confusion and
delay among educators, and the release of ARRA education funding to school
districts is still delayed in a few states. The current extraordinary
levels of federal spending directed to economic recovery, the federal budget
deficit and competing federal priorities could adversely impact the availability
of federal education funding. A cutback in federal education funding
could have a materially adverse impact on our revenue.
Sales
in our non school markets may continue to be affected by the current global
recession.
Our non
school sales consist principally of sales to private speech and language and
other healthcare providers, sales to our international value-added resellers,
and sales to government agencies for correctional institutions. In
addition, during 2009 we launched new products marketed to parents for at-home
use by their children.
Historically,
sales to private providers have been adversely impacted by economic downturns,
as many parents postpone or forego these services when their financial resources
are reduced. During the first nine months of 2009, sales to both
private providers and to our international channel declined substantially
compared to the prior year. We believe that this decline is mainly a
result of present global economic difficulties. The current recession
may likewise adversely affect our potential sales to parents of our new BrainSpark and BrainPro
products. Sales for correctional institutions may be affected by the
same state and local government funding pressures as K-12 schools.
Our
current liquidity resources may not be sufficient to meet our
needs.
We
believe that cash flow from operations, together with our current cash balances,
will be our primary source of funding for our operations during the remainder of
2009 and the next several years. During the first nine months of
2009, we have generated $10.5 million in cash from operations. In
2008, we used $13.6 million from our cash balances, with $10.1 million used for
the acquisition of the Soliloquy business and $3.7 million used in operating
activities. In the first quarter of 2009, we amended our $5 million credit line
from Comerica Bank to extend the line through December 31, 2009 and to relax
certain covenants. In January 2009, we drew down and in August 2009 we repaid
$2.5 million under that line. At September 30, 2009, we had $16.9
million in cash and cash equivalents.
Historically,
we have used cash in our operations during the first half of the year and built
cash in the second half. This pattern results largely from our
seasonally low sales in the first calendar quarter, which reflects our industry
pattern, and the time needed to collect on sales made towards the end of the
second quarter. Reflecting this pattern as well as the significant sales
increase in the third quarter, in the first six months of 2009, we used $4.2
million in operating activities and in the three months ended September 30,
2009, we generated $14.7million of cash from operations. While we expect that
our current cash balances and cash generated from operations will be sufficient
to fund our operating requirements during the next twelve months, this will
require us to meet certain levels of booked sales and collections. We
cannot assure you that we will meet our targets with respect to booked sales,
revenues, expenses or operating results.
At
September 30, 2009, no borrowing was outstanding under our credit line with
Comerica and we were in compliance with the covenants of the
line. Borrowings under the line are subject to reporting covenants
requiring the provision of financial statements to Comerica, and financial
covenants requiring us to maintain a minimum adjusted quick ratio of 1.15 and
net worth not less than negative $2 million. If we do not comply with the
covenants, we risk being unable to borrow under the credit line.
Funding
our liquidity needs out of cash flow from operations will require us to achieve
certain levels of booked sales, collections, and expenses. If we are
unable to achieve sufficient levels of cash flow from operations, or are unable
to obtain waivers or amendments from Comerica in the event we do not comply with
our covenants, we would be required either to obtain debt or equity financing
from other sources, or to reduce expenses. Reducing our expenses
could adversely affect our operations by reducing the resources available for
sales, marketing, research or development efforts. We cannot assure
you that we will be able to secure additional debt or equity financing on
acceptable terms, if at all.
It
is difficult to accurately forecast our future financial
results. This may cause us to fail to achieve the financial
performance anticipated by investors and financial analysts, which could cause
the price of our stock to decline.
Our
revenue and net income or loss are difficult to predict and may fluctuate
substantially from quarter to quarter and from year to year. We had
net income of approximately $3.3 million in the first nine months of
2009. In 2008, we had an operating loss of approximately $2.6 million
and a net loss of approximately $3.3 million. In 2007, we had an operating loss
of approximately $1.2 million and net income of approximately $1.2
million.
A
significant proportion of our customers’ purchases are made within the last two
weeks of each quarter. We therefore have limited visibility on
revenue for the quarter until the end of the quarter. If a customer
unexpectedly postpones or cancels an expected purchase due to changes in the
customer’s objectives, priorities, budget or personnel, we may experience an
unexpected shortfall that cannot be made up in the quarter. The
effect of the concentration of sales at the end of the quarter is compounded by
the fact that our various license and service packages have substantially
differing revenue recognition periods. Even when the amount and
timing of a transaction can be accurately projected, it may be difficult to
predict which license package a customer will purchase.
In
addition, our sales strategy emphasizes district-level, multi-site
transactions. The receipt or implementation of a single large order,
or conversely its loss or delay, can significantly impact the level of sales
booked and revenue recognized in a given quarter.
Our
expense levels are based on our expectations of future revenue and are primarily
fixed in the short term. We may not be able to adjust spending in a
timely manner to compensate for any unexpected revenue shortfall, which could
cause our net income to fluctuate unexpectedly.
Failure
to achieve the financial results expected by investors and financial analysts in
a given quarter could cause an immediate and significant decline in the trading
price of our common stock.
To
grow our K-12 business, we need to increase acceptance of our products among
K-12 education purchasers. Failure to do so would materially and
adversely impact our revenue, profitability and growth prospects.
We
believe that to date most educators who have used Fast ForWord products are
“early adopters.” Early adopters make up a relatively small
proportion of our K-12 market, so in order to grow our revenue and profit we
need to increase our reach beyond early adopters to more conservative
customers. We believe that our ability to grow acceptance of our
products in the conservative K-12 education market will depend largely on the
critical factors discussed below.
Our Fast ForWord products use an
approach that differs from the approaches that schools have traditionally used
to address reading problems. In particular, our products, which are
designed to develop the brain to process more efficiently, are based on
neuroscience research and focus on building cognitive skills. These
concepts may be unfamiliar to educators. K-12 educational practices
are slow to change, and it can be difficult to convince educators of the value
of a substantially different approach.
In order
to obtain the best student results from using our product, schools must follow a
recommended protocol for Fast
ForWord use, which requires at least 30 minutes per day out of a limited
and already crowded school day. Our recommendation that schools
follow a prescribed protocol in using our products may limit the number of
schools willing to purchase from us. In addition, if our products are
not used in accordance with the protocol, they may not produce the expected
student results, which may lead to customer dissatisfaction and decreased
revenue.
Our
products are generally implemented in a computer lab with a lab coach or teacher
rather than in the classroom with the students’ regular classroom
teachers. To reach a broader group of customers, encourage additional
sales from existing customers and improve student achievement results, we need
to better engage classroom teachers in the products’ implementation, in an
effective and efficient manner.
If we are
unable to convince our market of the value of our significantly different
approach and otherwise overcome the challenges identified above, our revenue and
growth prospects could be materially and adversely impacted.
We
rely on studies of student performance results to demonstrate the effectiveness
of our products. If the validity of these studies or the conclusions
that we draw from them are challenged, our reputation could be harmed and our
business prospects and financial results could be materially and adversely
affected.
We rely
heavily on statistical studies of student results on assessments to demonstrate
that our products lead to improved student achievement. Reliance on
these studies to support our claims about the effectiveness of our products
involves risks, including the following:
|
·
|
The
results of studies depend on schools’ appropriately implementing the
products and adhering to the product protocol. If a school does
not do so, the study may not show that our products produce substantial
student improvements.
|
|
·
|
Some
studies on which we rely may be challenged because the studies use a
limited sample size, lack a randomly selected control group, include
assistance or participation from us or our scientists, or have other
design characteristics that are not optimal. These challenges
may assert that these studies are not sufficiently rigorous or free from
bias, and may lead to criticism of the validity of the studies and the
conclusions that we draw from them.
|
|
·
|
Schools
studying the effectiveness of our products use the product with different
types of students and use different assessments, sometimes making it
difficult to aggregate or compare
results.
|
Our sales
and marketing efforts, as well as our reputation, could be adversely impacted if
the studies upon which we rely to demonstrate the effectiveness of our products,
or the conclusions we draw from those studies, are seen to be
insufficient.
If
our operations are disrupted due to weaknesses in our technology infrastructure,
our business could be harmed.
Providing
our services and conducting our general business operations both substantially
rely on computer and network systems. We have recently experienced
disruptions in both our customer and internal network services due to hardware
failures. We are in the midst of a major project to upgrade many of
our computer and network systems, which we believe have become
outdated. If our customer systems are disrupted, we may be required
to issue credits, customers may elect not to renew their contracts or not to
purchase additional licenses, we may lose sales to potential customers and we
may be subject to liability. If our internal systems are disrupted,
we may lose productivity and incur delays in product development, sales
operations or other functions.
If our products contain errors or if
customer access to our web-delivered products and services is disrupted, we
could lose new sales and be subject to significant liability
claims.
Because
our software products are complex, they may contain undetected errors or
defects, known as bugs. Bugs can be detected at any point in a product’s life
cycle, but are more common when a new product is introduced or when new versions
are released. In the past, we have encountered unexpected bugs in our
products shortly after release. We expect that, despite our testing,
errors will be found in new products and product enhancements in the future.
Significant errors in our products could lead to:
|
·
|
delays
in or loss of market acceptance of our
products;
|
|
·
|
diversion
of our resources;
|
|
·
|
a
lower rate of expansion purchases from current
customers;
|
|
·
|
injury
to our reputation; and
|
|
·
|
increased
service expenses or payment of
damages.
|
Our
Progress Tracker data tool, the Web-enabled version of the Reading Assistant
product, our new Virtual Academy and other online services, and our new
BrainSpark and BrainPro products all rely on the World Wide Web in order to
function. Unanticipated problems affecting our network systems could
cause interruptions or delays in the delivery of that product. The
servers that support our Web-delivered products and services are located in
third party facilities. While we believe that the services provided by these
facilities are robust, interruptions in customer access could be caused by the
occurrence of a natural disaster, power loss, vandalism or other
telecommunications problems. We have experienced problems due to power loss in
the past, and we will continue to be exposed to the risk of access failure in
the future.
If our
products do not work properly, or if there are problems with customer access to
our Web-delivered products and services, we may be required to issue credits,
customers may elect not to renew their support or access contracts or not to
purchase additional licenses, we may lose sales to potential customers and we
may be subject to liability claims. We cannot be certain that the
limitations of liability set forth in our agreements would be enforceable or
would otherwise protect us from liability for damages. A material liability
claim against us, regardless of its merit or its outcome, could result in
substantial costs, significantly harm our business reputation and divert
management’s attention from our operations.
Our
new BrainSpark and BrainPro products are marketed directly to
parents. We may be unable to successfully penetrate this
market.
In the
US, we presently market primarily to K-12 public schools. Parents who
purchase our products for use with their children do so through our much smaller
channel, private providers, in which the marketing is done by the individual
private provider. For the BrainSpark and Brain Pro offerings launched
in 2009, we are marketing and selling directly to parents, a new market for
us. We may find our marketing efforts in this market less effective
or more expensive than we have planned. The current recession may
make our marketing and sales efforts in this market more difficult than we
expect. If our marketing efforts are less effective than we expect, we may be
unable to achieve our planned level of sales and revenue from this market. If
our sales and revenue are substantially less than expected, this may cause us to
incur impairment charges against the capitalized development costs for these
products.
We
will be required to comply with the auditors’ attestation requirement of
Sarbanes-Oxley Section 404 no later than fiscal 2010. If we or our
auditors determine that our internal controls over financial reporting are not
effective or if we are unable to comply with the auditors’ attestation
requirement when we are required to do so, such ineffective controls or
non-compliance could have a materially adverse effect on us.
Under
Sarbanes-Oxley Section 404, as implemented by the SEC and PCAOB, we have been
required to provide a management assessment on our internal control over
financial reporting for fiscal 2007 and 2008, and we complied with that
requirement.
We will
be required to comply with the auditor’s attestation requirement in fiscal
2010. We cannot assure you that, in the course of completing the work
to satisfy the auditors’ attestation requirement, we or our auditors will not
detect a material weakness in our internal control over financial reporting or
that we can satisfactorily comply with the attestation requirement.
Claims
relating to data collection from our user base may subject us to liabilities and
additional expense.
Schools
and clinicians that use our products frequently use students’ names to register
them in our products and enter into our database academic, diagnostic and/or
demographic information about the students. In addition, the results
of student use of our products are uploaded to our database. We have
designed our system to safeguard this personally-identifiable information, but
the protection of such information is an area of increasing public concern and
significant government regulation, including but not limited to the Children’s
Online Privacy Protection Act. If our privacy protection measures
prove to be ineffective, we could be subject to liability claims for
unauthorized access to or misuses of personally-identifiable information stored
in our database. We may also face additional expenses to analyze and
comply with increasing regulation in this area.
We
may not be able to compete effectively in the education market.
The
market in which we operate is very competitive. We compete vigorously
for the funding available to schools, including against other software-based
reading intervention products but also against print and service-based offerings
from other companies and against traditional methods of teaching language and
reading. Many of the companies providing these competitive offerings
are much larger than we are, are more established in the school market than we
are, offer a broader range of products to schools, and have greater financial,
technical, marketing and distribution resources than we do. In addition,
although traditional approaches to language and reading are fundamentally
different from our approach, the traditional methods are more widely known and
accepted and, therefore, represent significant competition for available
funds.
Our Fast ForWord products are
differentiated in the market by their basis in neuroscience research and their
focus on improving brain processing efficiency and cognitive
skills. Recently we have seen an increase in the number of
neuroscientists working with other companies to repackage and commercialize
their research, resulting in the introduction of other products based on
neuroscience research and focusing on improving brain processing. We
anticipate that this increase in “brain fitness” products will continue in the
near future. To the extent that these products are adopted in place
of our product, this could materially and adversely impact our revenue.
If
we lose key personnel or are unable to hire additional qualified personnel as
necessary, we may not be able to achieve our business goals, which could
materially and adversely affect our financial results and share
price.
We depend
on the performance of our senior management, sales, marketing, development,
research, educational, finance and other administrative personnel with extensive
experience in our industry and with our Company. The loss of key
personnel could harm our ability to execute our business strategy, which could
adversely affect our financial results and share price. In addition,
we believe that our future success will depend in large part on our continued
ability to identify, hire, retain and motivate highly skilled employees who are
in great demand. We cannot assure you that we will be able to do
so.
If
we are unable to maintain our access to the intellectual property rights that we
license from third parties, our sales and net income will be materially and
adversely affected.
Our most
important products are based on licensed inventions owned by the University of
California and Rutgers, the State University of New Jersey. In 2008,
we generated approximately 61% of our booked sales from products that use this
licensed technology. If we were to lose our rights under these
licenses (whether through expiration of our exclusive license period, expiration
of the underlying patent’s exclusivity, invalidity or unenforceability of the
underlying patents, a breach by us of the terms of the license agreements or
otherwise), such a loss of these licensed rights or a requirement that we must
re-negotiate these licenses could materially harm our booked sales, our revenue
and our net income.
If
we are unable to adequately protect our intellectual property rights or if we
infringe on the rights of others, we could become subject to significant
liabilities, need to seek licenses or lose our rights to sell our
products.
Our
ability to compete effectively depends in part on whether we are able to
maintain the proprietary aspects of our technology and to operate without
infringing on the proprietary rights of others. It is possible that
our issued patents will not offer sufficient protection against competitors with
similar technology, that our trademarks will be challenged or infringed by
competitors, or that our pending patent applications will not result in the
issuance of patents. Issued patents can prove to be invalid or
unenforceable as a result of a variety of reasons, including deficiencies in
prosecution. As a result of potential deficiencies during the
prosecution of certain patents to which we have rights, it is possible that
these patents may be subject to a claim of unenforceability or
invalidity. If others are able to develop similar products due to the
expiration, unenforceability or invalidity of the underlying patents, the
resulting competition could materially harm our booked sales, revenue and net
income. The Company historically has not registered its copyrights in
the United States, which may make it difficult to collect damages from a third
party that may be infringing a Company copyright. The degree of
future protection for our proprietary rights is also uncertain for products or
product improvements in early-stage development, because it is difficult to
predict from early-stage development efforts which product(s) will ultimately be
marketed or what form the ultimately marketed product(s) will take.
In
addition, we could become party to patent or trademark infringement claims,
litigation or interference proceedings. These proceedings could
result from claims that we are violating the rights of others or may be
necessary to enforce our own rights. Any such proceedings would
result in substantial expense and significant diversion of management effort,
and the outcome of any such proceedings cannot be accurately
predicted. An adverse determination in such proceedings could subject
us to significant liabilities or require us to seek licenses from third parties,
which may not be available on commercially reasonable terms or at
all. In addition, competitors may design around our technology or
develop competing technologies. Intellectual property rights may also
be unavailable or limited in some foreign countries, which could make it easier
for competitors to capture or increase their market share with respect to
related technologies.
We
generally require the execution of a written licensing agreement, which
restricts the use and copying of our software products. However, if
unauthorized copying or misuse were to occur to a substantial degree, our sales
could be adversely affected.
Our
common stock is thinly traded and its price is volatile.
Our
common stock presently trades on the Nasdaq Capital Market. In
November 2008 we moved to the Nasdaq Capital Market from the Nasdaq Global
Market, because the market value of our common stock fell below the required
threshold for the Global Market due to declines in our stock
price. Our trading volume is generally low. For example
during the third quarter of 2009, our average daily trading volume was
approximately 17,100 shares. As a result, the ability of holders of
our common stock to sell such common stock and thereby monetize their investment
may be limited. In addition, the market price of our common stock has been
highly volatile since we became publicly traded and could continue to be subject
to wide fluctuations.
The
ownership of our common stock is concentrated.
At
September 30, 2009, Trigran Investments owned approximately 28% of our
outstanding stock, and our officers and directors held approximately 11% of the
outstanding stock. As a result, these stockholders are able to
exercise significant influence over all matters requiring stockholder approval,
including the election of directors and approval of significant corporate
transactions, and may have interests that diverge from those of other
stockholders. This concentration of ownership may also delay, prevent
or deter a change in control of our company.
Item
6. Exhibits
Exhibit No.
|
Description of Document
|
|
3.1
(1)
|
Amended
and Restated Certificate of Incorporation.
|
|
3.2
(2)
|
Amended
and Restated Bylaws
|
|
31.1
|
Certification
of Chief Executive Officer (Section 302).
|
|
31.2
|
Certification
of Chief Financial Officer (Section 302).
|
|
32.1
|
Certification
of Chief Executive Officer (Section 906).
|
|
32.2
|
Certification
of Chief Financial Officer (Section
906).
|
|
(1)
|
Incorporated
by reference to exhibit previously filed with the Company’s Form 10-Q for
the quarter ended March 31, 2007, file no.
000.2457.
|
|
(2)
|
Incorporated
by reference to exhibits previously filed with the Company’s Amendment No.
1 to the Registration Statement on Form S-1 filed on July 13, 2007,
registration no. 333-143093.
|
SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the Registrant has duly caused this
report to be signed on its behalf by the undersigned thereunto duly
authorized.
Dated:
November 6, 2009
Scientific Learning
Corporation
|
||
(Registrant)
|
||
/s/ Robert E. Feller
|
||
Robert
E. Feller
|
||
Senior
Vice President and Chief Financial Officer
|
||
(Authorized
Officer and Principal Financial and
|
||
Accounting
Officer)
|
Index
to Exhibits
Exhibit No.
|
Description of Document
|
|
3.1
(1)
|
Amended
and Restated Certificate of Incorporation.
|
|
3.2
(2)
|
Amended
and Restated Bylaws
|
|
Certification
of Chief Executive Officer (Section 302).
|
||
Certification
of Chief Financial Officer (Section 302).
|
||
Certification
of Chief Executive Officer (Section 906).
|
||
Certification
of Chief Financial Officer (Section
906).
|
|
(1)
|
Incorporated
by reference to exhibit previously filed with the Company’s Form 10-Q for
the quarter ended March 31, 2007, file no.
000.2457.
|
|
(2)
|
Incorporated
by reference to exhibits previously filed with the Company’s Amendment No.
1 to the Registration Statement on Form S-1 filed on July 13, 2007,
registration no. 333-143093.
|
Page 31