Attached files
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EX-31.1 - EXHIBIT 31.1 - EnergyConnect Group Inc | ex31_1.htm |
EX-31.2 - EXHIBIT 31.2 - EnergyConnect Group Inc | ex31_2.htm |
EX-32.1 - EXHIBIT 32.1 - EnergyConnect Group Inc | ex32_1.htm |
EX-32.2 - EXHIBIT 32.2 - EnergyConnect Group Inc | ex32_2.htm |
U.S.
Securities and Exchange Commission
Washington,
D. C. 20549
Form
1O-Q
T QUARTERLY
REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the
quarterly period ended October 3, 2009
o TRANSITION REPORT UNDER
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the
transition period from ________ to ________
Commission
File Number : 0-26226
ENERGYCONNECT
GROUP, INC.
(Name of
small business issuer in its charter)
Oregon
|
93-0935149
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.
R. S. Employer Identification No.)
|
901
Campisi Way, Suite 260
Campbell,
CA 95008
(Address
of principal executive offices and zip code)
(408)
370-3311
(Issuer’s
telephone number)
51
E. Campbell Avenue
Campbell,
California 95008
(Former
Name and Former Address, if Changed Since Last Report)
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
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company. See the definition of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act (Check one).
o Large Accelerated
Filer o Accelerated
Filer x Non-Accelerated
Filer o
Smaller reporting company
Indicate
by check mark whether Registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). oYes xNo
The
number of shares outstanding of the Registrant’s Common Stock as
of November 9, 2009 was 95,629,961 shares.
1
ENERGYCONNECT GROUP, INC.
FORM
10-Q
INDEX
PART I FINANCIAL
INFORMATION
|
Page
|
||||
Item
1.
|
Financial
Statements
|
||||
3
|
|||||
|
|||||
4
|
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5
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|||||
6
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|||||
Item
2.
|
16
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Item
3.
|
26
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Item
4.
|
26
|
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PART II OTHER
INFORMATION
|
|||||
Item
1.
|
27
|
||||
Item
1A.
|
27
|
||||
Item
2.
|
27
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||||
Item
3.
|
27
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Item
4.
|
27
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Item
5.
|
28
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Item
6.
|
28
|
Item 1. Financial Statements
ENERGYCONNECT GROUP, INC.
CONDENSED
CONSOLIDATED BALANCE SHEETS
October
3,
|
January
3,
|
|||||||
2009
|
2009
|
|||||||
Current
assets:
|
(Unaudited)
|
|||||||
Cash
and cash equivalents
|
$ | 1,624, 975 | $ | 410,101 | ||||
Certificates
of deposit
|
100,000 | 300,000 | ||||||
Accounts
receivable
|
10,711,799 | 4,373,818 | ||||||
Other
current assets
|
324,285 | 269,144 | ||||||
Total
current assets
|
12,761,059 | 5,353,063 | ||||||
Property
and equipment, net
|
286,031 | 299,263 | ||||||
Intangible
assets, net (Note 5)
|
1,492,609 | 1,633,622 | ||||||
Other
assets
|
43,579 | 70,876 | ||||||
$ | 14,583,278 | $ | 7,356,824 | |||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$ | 10,241,733 | $ | 5,116,296 | ||||
Bank
line of credit (Note 4)
|
- | 117,257 | ||||||
Other
current liabilities
|
359,426 | 127,016 | ||||||
Total
current liabilities
|
10,601,159 | 5,360,569 | ||||||
Long-term
liabilities:
|
||||||||
Note
payable, net of debt discount (Note 4)
|
1,878,671 | - | ||||||
Total
long-term liabilities
|
1,878,671 | - | ||||||
Commitments
and contingencies
|
||||||||
Shareholders’
equity :
|
||||||||
Common
stock, no par value, 225,000,000 shares authorized,
95,629,961 and 95,179,961 shares issued and outstanding,
respectively (Note 2)
|
121,731,000 | 120,671,694 | ||||||
Common
stock warrants (Note 3)
|
36,098,289 | 36,098,289 | ||||||
Accumulated
deficit
|
(155,725,841 | ) | (154,773,728 | ) | ||||
Total
shareholders’ equity
|
2,103,448 | 1,996,255 | ||||||
$ | 14,583,278 | $ | 7,356,824 |
The
accompanying notes are an integral part of these unaudited condensed
consolidated financial statements.
ENERGYCONNECT GROUP, INC.
CONDENSED
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
Three
months ended
|
Nine
months ended
|
|||||||||||||||
October
3,
|
September
27,
|
October
3,
|
September
27,
|
|||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Revenues
|
$ | 10,337,922 | $ | 11,641,127 | $ | 19,069,889 | $ | 24,082,822 | ||||||||
Cost
of Revenues
|
7,221,172 | 6,458,010 | 12,160,944 | 16,944,723 | ||||||||||||
Gross
profit
|
3,116,750 | 5,183,117 | 6,908,945 | 7,138,099 | ||||||||||||
Operating
expenses
|
||||||||||||||||
Sales,
general and administrative
|
2,245,933 | 3,023,904 | 7,125,821 | 9,322,224 | ||||||||||||
Income
(loss) from operations
|
870,817 | 2,159,213 | (216,876 | ) | (2,184,125 | ) | ||||||||||
Other
income (expense)
|
||||||||||||||||
Interest
income (expense), net
|
(342,406 | ) | (12,286 | ) | (735,237 | ) | 7,397 | |||||||||
Other
income, net
|
- | 16,817 | - | 43,580 | ||||||||||||
Income
(loss) before provision for income taxes
|
528,411 | 2,163,744 | (952,113 | ) | (2,133,148 | ) | ||||||||||
Provision
for income taxes
|
- | - | - | - | ||||||||||||
Income
(loss) from continuing operations
|
528,411 | 2,163,744 | (952,113 | ) | (2,133,148 | ) | ||||||||||
Discontinued
operations:
|
||||||||||||||||
Gain
(loss) on discontinued operations
|
- | - | - | (146,057 | ) | |||||||||||
Gain
on sale of discontinued operations
|
- | - | - | 134,775 | ||||||||||||
Net
income (loss)
|
$ | 528,411 | $ | 2,163,744 | $ | (952,113 | ) | $ | (2,144,430 | ) | ||||||
Net
income (loss) per share from continuing operations:
|
||||||||||||||||
Basic
|
$ | 0.01 | $ | 0.02 | $ | (0.01 | ) | $ | (0.02 | ) | ||||||
Diluted
|
$ | 0.01 | $ | 0.02 | $ | (0.01 | ) | $ | (0.02 | ) | ||||||
Net
income (loss) per share from discontinued operations:
|
||||||||||||||||
Basic
|
$ | 0.00 | $ | 0.00 | $ | 0.00 | $ | (0.00 | ) | |||||||
Diluted
|
$ | 0.00 | $ | 0.00 | $ | 0.00 | $ | (0.00 | ) | |||||||
Net
income (loss) per share:
|
||||||||||||||||
Basic
|
$ | 0.01 | $ | 0.02 | $ | (0.01 | ) | $ | (0.02 | ) | ||||||
Diluted
|
$ | 0.01 | $ | 0.02 | $ | (0.01 | ) | $ | (0.02 | ) | ||||||
Shares
used in per share calculations:
|
||||||||||||||||
Basic
|
95,629,961 | 94,684,424 | 95,433,808 | 89,941,134 | ||||||||||||
Diluted
|
96,839,705 | 94,697,281 | 95,433,808 | 89,941,134 |
The accompanying notes are an integral
part of these unaudited condensed consolidated financial
statements.
ENERGYCONNECT GROUP, INC.
CONDENSED
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
Nine Months
Ended
|
||||||||
October
3, 2009
|
September
27, 2008
|
|||||||
Cash
Flows From Operating Activities:
|
||||||||
Net
loss
|
$ | (952,113 | ) | $ | (2,144,430 | ) | ||
Add (deduct):
|
||||||||
Loss
on discontinued operations
|
- | 11,282 | ||||||
Loss
from continuing operations
|
(952,113 | ) | (2,133,148 | ) | ||||
Depreciation
of equipment
|
107,709 | 89,408 | ||||||
Amortization
of intangible assets
|
179,300 | 179,300 | ||||||
Stock-based
compensation
|
547,225 | 643,802 | ||||||
Common
stock issued for services
|
54,000 | 214,883 | ||||||
Amortization
and write-off of debt discount
|
281,052 | - | ||||||
Changes
in current assets and liabilities:
|
||||||||
Certificates
of deposit
|
200,000 | (166,600 | ) | |||||
Accounts
receivable
|
(6,337,981 | ) | (5,631,745 | ) | ||||
Other
current assets
|
(55,141 | ) | (412,508 | ) | ||||
Other
assets
|
27,298 | (36,212 | ) | |||||
Accounts
payable
|
5,125,437 | 4,139,864 | ||||||
Other
current liabilities
|
232,410 | 119,130 | ||||||
Net
cash used by continuing operations
|
(590,804 | ) | (2,993,827 | ) | ||||
Net
cash provided (used) by discontinued operations
|
- | 379,319 | ||||||
Net
cash used by operating activities
|
(590,804 | ) | (2,614,508 | ) | ||||
Cash
flows from investing activities:
|
||||||||
Purchases
of fixed assets
|
(94,478 | ) | (200,360 | ) | ||||
Capitalized
patent costs
|
(38,287 | ) | - | |||||
Net
cash used by continuing investing activities
|
(132,765 | ) | (200,360 | ) | ||||
Net
cash used by discontinued investing activities
|
- | (534,325 | ) | |||||
Net
cash used by investing activities
|
(132,765 | ) | (734,685 | ) | ||||
Cash
flows from financing activities:
|
||||||||
Repayments
on line of credit
|
(117,257 | ) | (1,198 | ) | ||||
Borrowings
from debt facility, net of repayments
|
2,050,000 | - | ||||||
Exercise
of options and warrants
|
5,700 | 718,205 | ||||||
Proceeds
from private placement, net of direct costs
|
- | 3,476,891 | ||||||
Net
cash provided by continuing financing activities
|
1,938,443 | 4,193,899 | ||||||
Net
cash provided by discontinued financing activities
|
- | 539,163 | ||||||
Net
cash provided by financing activities
|
1,938,443 | 4,733,062 | ||||||
Net
increase (decrease) in cash and cash equivalents
|
1,214,875 | 1,383,869 | ||||||
Cash
and cash equivalents, beginning of period
|
410,101 | 758,299 | ||||||
Cash
and cash equivalents, end of period
|
1,624,975 | 2,142,168 |
Supplemental
disclosures for cash flow information:
Cash
paid during the period for interest
|
300,796 | 8,733 | ||||||
Cash
paid during the period for income taxes
|
- | - | ||||||
Supplemental
schedule of non-cash financing and investing activities:
|
||||||||
Beneficial conversion feature
of advances from debt facility
|
452,381 | - |
The
accompanying notes are an integral part of these unaudited condensed
consolidated financial statements.
ENERGYCONNECT GROUP, INC.
NOTES
TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
October
3, 2009
1.
|
Description
of the Business
|
General
The
accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with accounting principles generally accepted in the
United States of America for interim financial information and with the
instructions to Form 10-Q. Accordingly, they do not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements.
In the
opinion of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Accordingly,
the results from operations for the three and nine-month periods ended October
3, 2009, are not necessarily indicative of the results that may be expected for
the year ended January 2, 2010. The unaudited condensed consolidated financial
statements should be read in conjunction with the consolidated January 3, 2009
financial statements and footnotes thereto included in the Company's Form
10-K.
The
consolidated financial statements as January 3, 2009 have been derived from the
audited consolidated financial statements at that date but do not include all
disclosures required by the accounting principles generally accepted in the
United States of America.
Business and Basis of
Presentation
On
September 24, 2008, our shareholders voted to change the name of the Company to
EnergyConnect Group, Inc. from Microfield Group, Inc. EnergyConnect
Group, Inc. (the “Company,” “we,” “us,” or “our”) through its subsidiary
EnergyConnect, Inc. (“ECI”) provides a full range of demand response services to
the electric power industry. Our customers are the regional grid operators who
pay us market rates for reductions in electrical demand during periods of high
prices or peak demand and for being available to reduce electric power demand on
request at periods of capacity limitations or in response to grid emergencies.
Our suppliers are large commercial and industrial consumers of electricity who
we pay to shift their demand for electricity from high priced hours in the day
to lower priced hours. We also pay these participating energy consumers to be
available to curtail electric demand on request.
Through
proprietary technology and business processes we automate electric consumer
demand response transactions and the associated measurement, verification, and
support decisions. These capabilities make it possible and easy
for electric consumers, particularly commercial and industrial facilities, to
shift load from high priced hours to lower priced periods.
Our
services provide market incentives to reduce electric demand during periods of
peak demand or high prices. By shifting load from high demand periods our
services improve the operating efficiency of the electrical grids and improve
grid reliability. By improving grid reliability and efficiency, we also delay
the need for construction of new electrical generating plants. Through higher
efficiencies on the grid, lower cost of generation and improved reliability, all
consumers of electricity benefit from our demand response
activities.
Our
customers are regional electric grid operators such as PJM, the largest electric
grid in the nation, and selected electric utilities who support and sponsor
demand response. All of our current operations are in the United
States with services provided in more than 25 states. Our revenues in
2008 were $25.9 million. Our participants are commercial and
industrial electric energy consumers, who we pay to shift, curtail and in some
cases produce electric energy.
In 2003
we acquired a part of Christenson Electric, Inc. (“CEI”), and in 2005, we
acquired the remainder of CEI and the stock of ECI. This combined a
60 year old electrical contracting and technology business with a high growth
demand response business. In 2007 we determined that ECI had
grown to a self sustaining transition point and in November 2007 we agreed to
sell the stock of CEI. The sale was completed on April 24,
2008. Our objective is to leverage our unique and proprietary
technologies, business processes, and resources and build a viable, profitable
demand response business servicing wholesale power markets. Financial statements
and accompanying notes included in this report include disclosure of the results
of operations for CEI, for all periods presented, as discontinued
operations.
All
significant inter-company accounts and transactions have been eliminated in
consolidation.
The
Company was incorporated in October 1986 as an Oregon Corporation, succeeding
operations that began in October 1984. The Company’s headquarters are
located in Campbell, California.
Going
Concern
The
accompanying unaudited condensed consolidated financial statements have been
prepared on a going concern basis, which contemplates the realization of assets
and the satisfaction of liabilities in the normal course of
business. As shown in the previously issued consolidated financial
statements during the year ended January 3, 2009, the Company incurred net
losses of $34,077,050 and generated negative cash flow from operations in the
amount of $4,100,473. The Company incurred net losses of $952,113 and
generated negative cash flow from operations in the amount of $590,804 for the
nine months ended October 3, 2009. The Company’s current liabilities
exceeded its current assets by $7,506 as of January 3, 2009. These
factors among others may indicate that the Company may be unable to continue as
a going concern for a reasonable period of time.
The
Company's existence is dependent upon management's ability to develop profitable
operations and resolve its liquidity problems. Management anticipates
the Company will attain profitable status and improve its liquidity through
continued growth, distribution and sale of its products and services, and
additional equity investment in the Company. The accompanying
unaudited condensed consolidated financial statements do not include any
adjustments that might result should the Company be unable to continue as a
going concern.
At
January 3, 2009, the Company did not have any available credit, bank financing
or other external sources of liquidity. Due to our brief history and historical
operating losses, our operations have not been a source of liquidity. In
February 2009, the Company entered into a secured debt facility that will
supplement the Company’s cash needs for 2009. While we believe our
cash availability under this debt facility along with cash generated by
operations will be adequate for the next twelve months, we may need to obtain
additional capital in order to sustain and expand operations and become
profitable. In order to obtain capital, we may need to sell additional shares of
our common stock or borrow funds from private lenders while remaining in
compliance with the terms of our debt facility. There can be no assurance that
we will be successful in obtaining additional funding.
We may
still need additional investments in order to continue operations to cash flow
break even. Additional investments may be sought, but we cannot guarantee that
we will be able to obtain such investments. Financing transactions may include
the issuance of equity or debt securities, obtaining credit facilities, or other
financing mechanisms. However, the trading price of our common stock, the
downturn in the U.S. stock and debt markets and the first priority lien on all
of our assets granted to our secured lender could make it more difficult to
obtain financing through the issuance of equity or debt securities. Even if we
are able to raise the funds required, it is possible that we could incur
unexpected costs and expenses, fail to collect significant amounts owed to us,
or experience unexpected cash requirements that would force us to seek
alternative financing. Further, if we issue additional equity or debt
securities, stockholders may experience additional dilution or the new equity
securities may have rights, preferences or privileges senior to those of
existing holders of our common stock. If additional financing is not available
or is not available on acceptable terms, we may have to curtail our
operations.
By
adjusting the Company’s operations and development to the level of
capitalization, management believes it has sufficient capital resources to meet
projected cash flow deficits. However, if during that period or thereafter, the
Company is not successful in generating sufficient liquidity from operations or
in raising sufficient capital resources on terms acceptable to them,
or is no longer in compliance with the terms of our debt facility, this could
have a material adverse effect on the Company’s business, results of operations
liquidity and financial condition. If operations and cash flows continue to
improve through these efforts, management believes that the Company can continue
to operate. However, no assurance can be given that management’s
actions will result in profitable operations or the resolution of its liquidity
problems.
Reclassification
Certain
reclassifications have been made to conform to prior periods’ data to the
current presentation. These reclassifications had no effect on reported
losses.
Fiscal
Year
The
Company’s fiscal year is the 52- or 53-week period ending on the Saturday
closest to the last day of December. The Company’s current fiscal
year is the 52-week period ending January 2, 2010. The Company’s last
fiscal year was the 53-week period ended January 3, 2009. The
Company’s third fiscal quarters in fiscal 2009 and 2008 were the 13-week periods
ended October 3, 2009 and September 27, 2008, respectively.
Revenue
Recognition
We
produce revenue through agreements with both building owners and the power grid
operators. Under our agreements with facilities owners, we use electrical and
energy related products that help energy consumers control energy use in their
buildings. In conjunction with this agreement we are members of the power grid
operators and have agreed to provide the grids with energy, capacity, and
related ancillary services during specified times and under specified
conditions. These transactions are summarized at the end of each monthly period
and submitted to the power grids for settlement and approval. While the power
grids are our customers, they are primarily a conduit through which these
electrical curtailment transactions are processed. The vast majority
of our revenues each year are processed through the PJM Interconnection. PJM
serves as the market for electrical transactions in a specific region in the
United States. Our agreement with PJM is an ongoing one as we are
members of PJM. These transactions are initiated by building owners,
who are our participants. The transactions form the basis for our
revenue. We have little risk, if any, from the concentration of
revenue through this power grid as it is a not-for-profit organization that
exists to act as the market for electrical transactions.
In 2008,
we revised our accounting for reserves for collections of revenues. The revision
in our reserve accounting is a result of improvements in our ability to
accurately estimate collections, which is based upon historical trends and
timely and accurate information. Previously the transactions were
recorded as revenue on the settlement date, which typically fall 45-70 days
after the transaction date from which the revenue is derived, because management
believed that without an established history for this source of revenue, and the
potential for disputes, that the settlement date, on which both parties agree to
the amount of revenue to recognize, was the most conservative and appropriate
date to use. For periods beginning with the first quarter of 2008 and
forward, revenue from these settlements were accrued into the prior month
instead of recognizing revenue as the settlement amounts were
received. The record of these settlement amounts being realized over
the prior two years had been extremely accurate so that management believed it
was appropriate to accrue the settlement amounts into the prior
month. This revision in our reserve accounting resulted in an extra
month of revenue being recorded in the first quarter of 2008. This
first quarter of 2008 contained the payment received in January of 2008 (which
was not accrued into December) and the settlement amounts from the fifth
business day in February, March and April of 2008, each of which was accrued
into the prior months of January, February and March of 2008. The
first quarter of 2009 includes three months of revenue which is comprised of the
settlement amounts from the fifth business day in February, March and April of
2009, each of which was accrued into the prior months of January, February and
March of 2009. Therefore, the nine month period ended October 3, 2009 is
comprised of nine months of settlement amounts and the nine month period ended
September 27, 2008 is comprised of ten months of settlement
amounts.
An
additional source of our revenue is derived from agreements with the power grid
operators whereby a monthly reserve fee is paid for our agreement to be
available to provide relief in the form of curtailment of energy usage, in times
of high energy demand. We record these payments as revenue over the
period during which we’re required to perform under these
programs. Under certain programs, our obligation to perform may not
coincide with the period over which we receive payments under that
program. In these cases we record revenue over the mandatory
performance obligation period and record a receivable for the amount of payments
that will be received after that period has been completed.
New Accounting Requirements
and Disclosures
Accounting Standards Codification
and GAAP Hierarchy — Effective for interim and annual periods
ending after September 15, 2009, the Accounting Standards Codification and
related disclosure requirements issued by the FASB became the single official
source of authoritative, nongovernmental GAAP. The ASC simplifies GAAP, without
change, by consolidating the numerous, predecessor accounting standards and
requirements into logically organized topics. All other literature not included
in the ASC is non-authoritative. We adopted the ASC as of October 3, 2009, which
did not have any impact on our results of operations, financial condition or
cash flows as it does not represent new accounting literature or
requirements. All references to pre-codified U.S. GAAP have been
removed from this Form 10Q.
Determining Fair Value in Inactive
Markets — Effective for interim and annual periods beginning
after June 15, 2009, GAAP established new accounting standards for determining
fair value when the volume and level of activity for the asset or liability have
significantly decreased and the identifying transactions are not orderly. The
new standards apply to all fair value measurements when appropriate. Among other
things, the new standards:
•
|
affirm
that the objective of fair value, when the market for an asset is not
active, is the price that would be received in a sale of the asset in an
orderly transaction;
|
•
|
clarify
certain factors and provide additional factors for determining whether
there has been a significant decrease in market activity for an asset when
the market for that asset is not
active;
|
•
|
provide
that a transaction for an asset or liability may not be presumed to be
distressed (not orderly) simply because there has been a significant
decrease in the volume and level of activity for the asset or liability,
rather, a company must determine whether a transaction is not orderly
based on the weight of the evidence, and provide a non-exclusive list of
the evidence that may indicate that a transaction is not orderly;
and
|
•
|
require
disclosure in interim and annual periods of the inputs and valuation
techniques used to measure fair value and any change in valuation
technique (and the related inputs) resulting from the application of the
standard, including quantification of its effects, if
practicable.
|
These new
accounting standards must be applied prospectively and retrospective application
is not permitted. See Note 9 for disclosure of our fair value
measurements.
Financial
Instruments — Effective for interim and annual periods ending
after June 15, 2009, GAAP established new disclosure requirements for the
fair value of financial instruments in both interim and annual financial
statements. Previously, the disclosure was only required annually. We adopted
the new requirements as of July 4, 2009, which resulted in no change to our
accounting policies, and had no effect on our results of operations, cash flows
or financial position, but did result in the addition of interim disclosure of
the fair values of our financial instruments. See Note 4 for disclosure of
the fair value of our debt.
Subsequent
Events — Effective for interim and annual periods ending after
June 15, 2009, GAAP established general standards of accounting for and
disclosure of events that occur after the balance sheet date but before
financial statements are issued or are available to be issued. The new
requirements do not change the accounting for subsequent events; however, they
do require disclosure, on a prospective basis, of the date an entity has
evaluated subsequent events. We adopted these new requirements as of July 4,
2009, which had no impact on our results of operations, financial condition or
cash flows.
Consolidation— Effective
for interim and annual periods beginning after November 15, 2009, with
earlier application prohibited, GAAP amends the current accounting standards for
determining which enterprise has a controlling financial interest in a VIE and
amends guidance for determining whether an entity is a VIE. The new standards
will also add reconsideration events for determining whether an entity is a VIE
and will require ongoing reassessment of which entity is determined to be the
VIE’s primary beneficiary as well as enhanced disclosures about the enterprise’s
involvement with a VIE. We are currently assessing the future impact these new
standards will have on our results of operations, financial position or cash
flows.
Transfers and Servicing --
Effective for interim and annual periods beginning after November 15, 2009,
GAAP eliminates the concept of a qualifying special purpose entity, changes the
requirements for derecognizing financial assets and requires additional
disclosures. We are currently assessing the future impact these new standards
will have on our results of operations, financial position or cash
flows.
2.
|
Capital
Stock
|
The
Company has authorized 10,000,000 shares of Preferred Stock, no par value. As of
October 3, 2009 and January 3, 2009, the Company’s Series 2, Series 3 and Series
4 preferred stock had been completely converted to common shares. The
Company has authorized 225,000,000 shares of Common Stock, no par value. As of
October 3, 2009 and January 3, 2009, the Company had 95,629,961 and 95,179,961
shares of common stock issued and outstanding, respectively. During
the nine month period ended October 3, 2009, the Company issued an aggregate of
450,000 shares of common stock, all of which were issued to directors for their
services on the Company’s board.
3.
|
Stock
Options and Warrants
|
Stock
Incentive Plan
The
Company has a Stock Incentive Plan (the "Plan"). At October 3, 2009
and September 27, 2008, 556,234 and 6,063,870 shares of common stock were
reserved, respectively, for issuance to employees, officers, directors and
outside advisors. Under the Plan, the options may be granted to
purchase shares of the Company's common stock at fair market value, as
determined by the Company's Board of Directors, at the date of
grant. The options are exercisable over a period of up to ten years
from the date of grant or such shorter term as provided for in the
Plan. The options become exercisable over periods from zero to four
years.
Also
under the Plan during the quarter ended July 4, 2009, the Company granted
Restricted Stock Awards to the independent Directors of the Company’s Board of
Directors in connection with their services as Directors. These four
awards granted the Directors a total of 450,000 shares of the Company’s common
stock (Note 2). The shares are restricted from transfer, except as
permitted for estate planning purposes, until January 15, 2010.
A total
of 11,223,249 options to purchase shares of the Company’s common stock were
granted to employees of the Company during the nine months ended October 3,
2009. There were 147,000 options granted to employees, directors and
consultants during the nine months ended September 27, 2008. The
11,223,249 options issued to employees during the nine months ended October 3,
2009 are forfeited if not exercised within ten years. Of the options
granted during the nine months ended October 3, 2009, 950,000 were granted to
certain management employees in exchange for permanent salary reductions
instituted in March 2009. The reductions ranged from 7% to 25%
of the employees’ annual salary. These options vest monthly over the
12 months after grant, after which they will be fully vested. The
remaining 10,273,249 options have a 12-month waiting period during which no
vesting occurs. At the end of this 12-month period, the options
become 25% vested, and then vest ratably over the remaining thirty six–months of
the vesting period. The weighted average per share value of all options granted
in the current nine months was $0.08.
The
following table summarizes the changes in stock options outstanding and the
related prices for the shares of the Company’s common stock issued to employees,
officers and directors of the Company under the Plan.
Options Outstanding
|
Options Exercisable
|
||||||||||||||||||||
Exercise Prices |
Number
Outstanding
|
Weighted
Average Remaining Contractual Life
(Years)
|
Weighted
Average Exercise
Price
|
Number
Exercisable
|
Weighted
Average Exercise
Price
|
||||||||||||||||
$ |
0.05-0.94
|
15,474,581 | 5.32 | $ | 0.28 | 4,114,982 | $ | 0.61 | |||||||||||||
$ |
1.76-2.70
|
225,346 | 1.61 | $ | 2.18 | 225,346 | $ | 2.21 | |||||||||||||
15,699,927 | 5.05 | $ | 0.30 | 4,310,228 | $ | 0.68 |
Transactions
involving stock options issued are summarized as follows:
Number of Shares
|
Weighted
Average Price Per
Share
|
|||||||
Outstanding
at December 29, 2007
|
9,723,750 | $ | 0.54 | |||||
Granted
|
162,000 | 0.42 | ||||||
Exercised
|
(2,069,331 | ) | 0.34 | |||||
Cancelled
or expired
|
(1,737,549 | ) | 0.67 | |||||
Outstanding
at January 3, 2009
|
6,078,870 | $ | 0.81 | |||||
Granted
|
11,223,249 | 0.08 | ||||||
Exercised
|
- | 0.00 | ||||||
Cancelled
or expired
|
(1,602,192 | ) | 0.64 | |||||
Outstanding
at October 3, 2009
|
15,699,927 | $ | 0.31 | |||||
The
Company has computed the value of all options granted during fiscal 2009 and
2008 using the Black-Scholes pricing model. There were 1,120,000 options granted
during the third quarter of 2009. The following assumptions were used to
calculate the value of options granted during the third quarter of 2009 and
2008:
2009
|
2008
|
|||||||
Risk-free
interest rate
|
3.54 | % | 3.54 | % | ||||
Expected
dividend yield
|
- | - | ||||||
Expected
life
|
5
years
|
5
years
|
||||||
Expected
volatility
|
122 | % | 122 | % |
Stock-based
compensation expense recognized for the three and nine months ended October 3,
2009 was $186,787 and $601,226, respectively. Employee stock-based compensation
expense recognized for the three and nine months ended September 27, 2008 was
$172,235 and $643,802, respectively.
Common
Stock Warrants
In
connection with the August 24, 2004 debt issuance by Destination Capital, LLC,
the Company is obligated to issue warrants to purchase the Company’s common
stock. According to the terms of the debt issuance, warrants in the amount of
12.5% of the loan balance, outstanding on the first day of each month, will be
issued to the debt holders for each calendar month that the debt is outstanding.
Each warrant is exercisable into one share of common stock at the lesser of
$0.38 per share or the price applicable to any shares, warrants or options
issued (other than options issued to employees or directors) while the loan is
outstanding, and will expire in 2010. Prior to this debt issuance, the Company
exercised an option to convert $1,400,000 of outstanding debt into preferred
stock that is convertible into shares of common stock. This exercise, when
aggregated with all other outstanding equity arrangements, resulted in the total
number of common shares that could be required to be delivered to exceed the
number of authorized common shares. The fair value of the 37,500 warrants
initially issued in connection with the debt issuance must be recorded as a
liability for warrant settlement in the financial statements using the
Black-Scholes model, and any subsequent changes in the Company’s stock price to
be recorded in earnings. Accordingly, the aggregate fair value of these
warrants, issued prior to September 1, 2004, was determined to be $17,513. At
September 1, 2004, the Company’s shareholder’s voted to increase the authorized
shares available for issuance or conversion, which cured the situation described
above. Accordingly, the fair value of the warrants on September 1, 2004 was
determined to be $20,776. The warrant liability was reclassified to
shareholders’ equity and the increase from the initial warrant value was
recorded in earnings in the fiscal year ended January 1, 2005. For the months
from August 1, 2004 to July 2, 2005, according to the terms of the
warrant provision of the August 24, 2004 debt agreement, the Company was
obligated to issue 1,626,042 additional warrants. The value of these warrants of
$604,955 was added to shareholders’ equity on the consolidated balance sheet,
with a corresponding expense charged to interest expense in the consolidated
statement of operations. As of October 3, 2009, the holders of these warrants
exercised 1,309,616 warrants in exchange for 1,170,841 shares of the Company’s
common stock, and 316,426 warrants remain outstanding.
On
October 13, 2005, the Company issued an aggregate of 19,695,432 warrants in
connection with the acquisition of acquired EnergyConnect, Inc. The Company
valued the warrants using the Black-Scholes option pricing model, applying a
useful life of 5 years, a risk-free rate of 4.06%, an expected dividend yield of
0%, a volatility of 129% and a fair value of the common stock of
$2.17. Total value of the warrants issued amounted $36,495,391, which
was included in the purchase price of ECI. As of October 3, 2009, the
warrant holders have not exercised any of these warrants.
On
October 5, 2005, in conjunction with a private placement which resulted in gross
proceeds of $3,276,000, the Company sold 5,233,603 shares of common stock at
$0.70 per share, and issued warrants to purchase up to 2,944,693 shares of
common stock. The warrants have a term of five years and an exercise
price of $0.90 per share. As of October 3, 2009, the warrant holders
have exercised 192,370 warrants, for 180,409 shares of common stock, and
2,752,323 warrants remain outstanding.
On June
30, 2006, in conjunction with a private placement which resulted in gross
proceeds of $15,000,000, the Company sold 7,500,000 shares of common stock at
$2.00 per share, and issued warrants to purchase up to 5,625,000 shares of
common stock. The warrants have a term of five years and an exercise
price of $3.00 per share. As of October 3, 2009, the warrant holders
have not exercised any of these warrants.
On May 7,
2008, in conjunction with a private placement which resulted in gross proceeds
of $3,615,000, the Company sold 9,051,310 shares of common stock at $0.40 per
share, and issued warrants to purchase up to 4,525,655 shares of common
stock. The warrants have a term of five years and an exercise price
of $0.60 per share. As of October 3, 2009, the warrant holders have
not exercised any of these warrants.
No
warrants were issued, exercised, cancelled or expired during the nine months
ended October 3, 2009.
4.
|
Debt
|
Operating
Line of Credit
At
January 3, 2009, the Company had a loan facility which was an unsecured $120,000
line of credit at prime plus 3 ¾%, due on demand with interest payable
monthly. As of January 3, 2009, there was $117,257 outstanding,
respectively, under this line. During the second quarter of 2009, the
balance was paid and the line was closed.
Convertible
Note
A summary
of the Company’s convertible note payable is as follows:
October 3, 2009
|
January 3, 2009
|
|||||||
Convertible
note payable, interest due monthly at 30% with 23% due and payable
currently with 7% deferred each month until December 31, 2009, at which
time the deferred interest balance will be added to the note balance. The
note is due January 1, 2011. The note is convertible into
shares of the Company’s common stock at $0.091 per share, in an amount
equal to two-thirds of the outstanding balance at conversion with the
remaining balance due in cash.
|
$ | 2,050,000 | $ | - | ||||
Debt
discount – beneficial conversion feature, net of accumulated amortization
and write-off of $281,052 and $0 at October 3, 2009 and January 3,
2009.
|
(171,329 | ) | - | |||||
Note
payable, net of debt discount
|
$ | 1,878,671 | $ | - |
On
February 26, 2009 we entered into a Business Loan Agreement, a Convertible
Secured Promissory Note and Commercial Security Agreement (collectively the
“Loan Agreements”) with Aequitas Commercial Finance, LLC
(“Aequitas”). Aequitas is a commercial finance company that provides
loan and lease financing to companies. Aequitas is managed by Aequitas Capital
Management, Inc. (“Aequitas Capital”). Aequitas Capital and its affiliates have
previously provided the Company with debt and equity
financing. William C. McCormick, the Chairman of the Board of
Directors of EnergyConnect Group, Inc., is a member of the Advisory Board
of Aequitas Capital.
Pursuant
to the terms and conditions of the Loan Agreements, Aequitas will provide the
Company with a revolving credit facility enabling the Company to borrow money in
a maximum principal amount not to exceed $5,000,000. The current
interest rate for funds borrowed by the Company in the first twelve (12) month
term is twenty-three percent (23%) with an additional seven percent (7%)
deferred interest per annum. The accrued deferred interest shall be
added to the then current principal balance of the loan at the end of the first
twelve (12) month term. The interest rate for funds borrowed in the
second twelve (12) month term is thirty percent (30%). The loan
matures on January 1, 2011. As security for this loan, the Company
granted Aequitas a first priority security interest in the assets of the
Company.
The Loan
Agreements grant Aequitas the right to convert up to two-thirds (2/3rds) of
unpaid principal and interest into shares of ECNG’s common stock at an exercise
price of $0.091 anytime after issuance. The Company recognized an
imbedded beneficial conversion feature in the amount of $452,381 present in the
convertible note equal to the intrinsic value of the imbedded beneficial
conversion feature, to additional paid in capital and a discount against the
convertible note during the nine months ended October 3, 2009. The debt discount
attributed to the beneficial conversion feature is amortized over the
convertible note's maturity period (twenty-two months) as interest
expense.
During
the nine months ended October 3, 2009, total proceeds received from the
convertible note was $3,250,000 and the Company repaid $1,200,000 of the loan.
The Company amortized and wrote-off the convertible note debt discount
attributed to the beneficial conversion feature and recorded non-cash interest
expense in the amount of $105,694 and $281,052 for the three and nine month
periods ended October 3, 2009, respectively. No debt discount was
amortized in 2008.
As of
October 3, 2009 the balance owed on the Note was $2,050,000, and is recorded in
long term debt. The Company is current with its obligations under
this Note and is in compliance with all covenants. Other than this
obligation, there was no other interest bearing debt due by the Company at
October 3, 2009.
5.
|
Intangible
Assets and Goodwill
|
As a
result of our acquisition of ECI we recorded an intangible asset of $2,390,667
at the date of acquisition representing developed technology that is currently
used within ECI. The intangible asset acquired has an estimated
useful life of ten years, and as such is being amortized monthly, over that
period. Goodwill of $106,544,871 represented the excess of the
purchase price over the fair value of the net tangible and intangible assets
acquired. At December 31, 2005 and January 3, 2009, it was determined
in independent valuations that the goodwill generated in this transaction was
impaired. The Company decided to write off approximately $77,191,344
and $29,353,527 of this goodwill in the years ended December 31, 2005 and
January 3, 2009, respectively. The write-off of the goodwill and the
amortization of the intangible assets are included in operating expenses in the
consolidated statement of operations.
Intangible
assets consist of the following:
October
3, 2009
|
January
3, 2009
|
|||||||
Developed
technology (including patents)
|
$ | 2,428,954 | $ | 2,390,667 | ||||
Less
accumulated amortization
|
(936,345 | ) | (757,045 | ) | ||||
|
$ | 1,492,609 | $ | 1,633,622 |
Amortization
of intangible assets included as a charge to income was $179,300 for both of the
nine month periods ended October 3, 2009 and September 27, 2008.
Based on
the Company’s current intangible assets, amortization expense for the five
succeeding years will be as follows:
Amortization
|
||||
Year
|
Expense
|
|||
Twelve
months ended September 2010
|
$ | 239,487 | ||
Twelve
months ended September 2011
|
239,487 | |||
Twelve
months ended September 2012
|
239,487 | |||
Twelve
months ended September 2013
|
239,487 | |||
Twelve
months ended September 2014 and beyond
|
534,661 | |||
Total
|
$ | 1,492,609 |
6.
|
Business
Concentrations
|
We
produce revenue and therefore accounts receivable through agreements with both
building owners and the power grid operators. Under our agreements with
facilities owners, we use electrical and energy related products that help
energy consumers control energy use in their buildings. In conjunction with this
agreement we are members of the power grid operators and have agreed to provide
the grids with energy, capacity, and related ancillary services during specified
times and under specified conditions. These transactions are summarized at the
end of each monthly period and submitted to the power grids for settlement and
approval. While the power grids are our customers, they are primarily a conduit
through which these electrical curtailment transactions are
processed. The vast majority of our revenues each year are processed
through the PJM Interconnection. PJM serves as the market for electrical
transactions in a specific region in the United States. Our agreement
with PJM is an ongoing one as we are members of PJM. These
transactions are initiated by building owners, who are our
participants. These transactions form the basis for our
revenue.
Financial
transactions and instruments that potentially subject us to concentrations of
credit risk consist primarily of revenue generating transactions and the
resultant accounts receivable. During the three months ended October
3, 2009, revenue from one customer, whom is a grid operator, approximated
$9,479,000 or 92% of total revenue. This revenue is the result of multiple
participating electric consumers that each executed myriad energy transactions
in the economic market, or that are registered in capacity
programs. These economic transactions and capacity commitments were
aggregated and billed to the grid operators. That revenue is
dependent on actions taken or commitments made to reduce electricity usage by
these third parties in conjunction with ECI, for which the grids, as our
customers, remit payments to us. These transactions form the basis
for the majority of our annual revenue. We have little risk, if any,
from the concentration of revenue through these power grids as they maintain the
market for electrical transactions and capacity support for the grids.
For the
three months ended October 3, 2009, there were no participants whose
transactions resulted in revenue that totaled more than 10% of our
revenue. During the three months ended September 27, 2008, there was
one customer who generated 96% of the Company’s revenue and one participant
whose transactions generated 13% of the Company’s total revenue.
For the
nine month period ended October 3, 2009, one customer generated 91% of the
Company’s total revenues. There were no participants whose capacity
commitments generated more than 10% of our revenues. For the nine
month period ended September 27, 2008, there was one participant whose capacity
commitments generated 13% of the Company’s total revenue.
7.
|
Sale
of Discontinued Operations
|
Divestiture
of Christenson Electric, Inc.
On July
20, 2005, the Company acquired Christenson Electric, Inc. (CEI) in exchange for
2,000,000 shares of the Company’s common stock and the assumption of certain
liabilities within CEI. CEI provides services to utilities and other
energy related companies. On November 29, 2007, our board of
directors signed an agreement to sell all of the shares of our wholly-owned
subsidiary Christenson Electric, Inc. to a corporation formed by the management
of CEI. The agreement was approved by our shareholders in a vote on March
10, 2008. The closing occurred on April 24, 2008.
The
following summarizes the actual results of the disposition of the CEI business
segment.
Debts
assumed by buyer
|
$
|
12,653,197
|
||
Net
assets disposed of
|
(12,149,018
|
)
|
||
Expenses
incurred in connection with the transaction
|
(369,404
|
)
|
||
Net
gain on disposal of CEI
|
$
|
134,775
|
In the
three and six months ended June 28, 2008, the Company recorded a gain on
discontinued operations of approximately $163,000, and a loss on discontinued
operations of approximately $11,000, respectively.
8.
|
Legal
Proceedings
|
During
2008, we were contacted by the Federal Regulatory Energy Commission (“FERC”) and
asked to provide information to them as part of a non-public inquiry on the
demand response markets, and our activity in our markets under the FERC
tariffs. Over a period of 8 months we provided them with the
requested documentation both in paper and electronic form, and voluntarily
provided them with access to certain of our employees in an effort to answer all
questions put forth to us. Our responses under the inquiry were
completed on December 31, 2008.
On April
28, 2009, staff from FERC’s Office of Enforcement informed EnergyConnect
that FERC had found our technology and business processes to be in
compliance with the tariff and had closed its inquiry, without any proposed
enforcement actions or remedies.
9.
|
Fair
Value Measurement
|
Fair Value Measurements under
GAAP clarifies the principle that fair value should be based on the assumptions
market participants would use when pricing an asset or liability and establishes
a fair value hierarchy that prioritizes the information used to develop those
assumptions. Under the standard, fair value measurements are separately
disclosed by level within the fair value hierarchy. It only applies
to accounting pronouncements that already require or permit fair value measures,
except for standards that relate to share-based payments
Valuation
techniques considered are based on observable and unobservable inputs. The
Standard classifies these inputs into the following hierarchy:
Level 1 inputs are observable
inputs and use quoted prices in active markets for identical assets or
liabilities that the reporting entity has the ability to access at the
measurement date and are deemed to be most reliable measure of fair
value.
Level 2 inputs are observable
inputs and reflect assumptions that market participants would use in pricing the
asset or liability developed based on market data obtained from sources
independent of the reporting entity. Level 2 inputs includes 1) quoted prices
for similar assets or liabilities in active markets, 2) quoted prices for
identical or similar assets or liabilities in markets that are not active, 3)
observable inputs such as interest rates and yield curves observable at commonly
quoted intervals, volatilities, prepayment speeds, credit risks, default rates,
and 4) market-corroborated inputs.
Level 3 inputs are
unobservable inputs and reflect the reporting entity’s own assumptions about the
assumptions market participants would use in pricing the asset or liability
based on the best information available under the circumstances.
This
statement permits us to choose to measure certain financial assets and
liabilities at fair value that are not currently required to be measured at fair
value (the “Fair Value Option”). Election of the Fair Value Option is made on an
instrument-by-instrument basis and is irrevocable. At the adoption date,
unrealized gains and losses on financial assets and liabilities for which the
Fair Value Option has been elected are reported as a cumulative adjustment to
beginning retained earnings. We did not elect the Fair Value Option as we had no
financial assets or liabilities that qualified for this treatment. In the
future, if we elect the Fair Value Option for certain financial assets and
liabilities, we would report unrealized gains and losses due to changes in their
fair value in net income at each subsequent reporting date. The adoption of this
statement had no impact on our consolidated financial statements.
The
carrying value of the Company’s cash and cash equivalents, accounts receivable,
accounts payable, borrowings under the revolving credit facility, and other
current assets and liabilities approximate fair value because of their
short-term maturity. The fair value of the Company’s long-term debt
is approximately $2,050,000 as of October 3, 2009.
10.
|
Subsequent
Events
|
Management
has reviewed and evaluated material subsequent events from the balance sheet
date of October 3, 2009 through the financial statements issue date of November
12, 2009. All appropriate subsequent disclosures, if any, have been
made in the Notes to Unaudited Condensed Consolidated Financial
Statements.
Item 2. Management’s Discussion and Analysis of Financial Condition
and Results of Operations
The
following discussion of the financial condition and results of operations of
EnergyConnect Group, Inc. should be read in conjunction with the Management’s
Discussion and Analysis of Financial Condition and Results of Operations, and
the Consolidated Financial Statements and the Notes thereto included in the
Company’s Annual Report on Form 10-K for the year ended January 3,
2009.
Forward-Looking
Statements
Certain
statements contained in this Form 10-Q concerning expectations, beliefs, plans,
objectives, goals, strategies, future events or performance and underlying
assumptions and other statements which are other than statements of historical
facts are "forward-looking statements" within the meaning of the federal
securities laws. Although the Company believes that the expectations
and assumptions reflected in these statements are reasonable, there can be no
assurance that these expectations will prove to be correct. These
forward-looking statements involve a number of risks and uncertainties, and
actual results may differ materially from the results discussed in the
forward-looking statements. Any such forward-looking statements
should be considered in light of such important factors and in conjunction with
other documents of the Company on file with the SEC.
New
factors that could cause actual results to differ materially from those
described in forward-looking statements emerge from time to time, and it is not
possible for the Company to predict all of such factors, or the extent to which
any such factor or combination of factors may cause actual results to differ
from those contained in any forward-looking statement. Any
forward-looking statement speaks only as of the date on which such statement is
made, and the Company undertakes no obligations to update the information
contained in such statement to reflect subsequent developments or
information.
Overview
EnergyConnect
Group, Inc. (the “Company,” “we,” “us,” or “our”) through its subsidiary
EnergyConnect, Inc. (“ECI”) provides a full range of demand response services to
the electric power industry. Our customers are the regional grid operators who
pay us market rates for reductions in electrical demand during periods of high
prices or peak demand and for being available to reduce electric power demand on
request at periods of capacity limitations or in response to grid emergencies.
Our suppliers are large commercial and industrial consumers of electricity who
we pay to shift their demand for electricity from high priced hours in the day
to lower priced hours. We also pay these participating energy consumers to be
available to curtail electric demand on request.
Through
proprietary technology and business processes we automate electric consumer
demand response transactions and the associated measurement, verification, and
support decisions. These capabilities make it possible and easy
for electric consumers, particularly commercial and industrial facilities, to
shift load from high priced hours to lower priced periods.
Our
services provide market incentives to reduce electric demand during periods of
peak demand or high prices. By shifting load from high demand periods to times
of lower electrical demand our services improve the operating efficiency of the
electrical grids and improve grid reliability. We also delay the need for
construction of new electrical generating plants. Through higher efficiencies on
the grid, lower cost of generation and improved reliability all consumers of
electricity benefit from our demand response activities on the electrical grid.
By providing consumers of electricity an effective means of responding to grid
wholesale prices of electricity we complete the supply demand market place for
electricity and provide offsetting market forces to electricity
generators.
Our
customers are regional electric grid operators such as PJM, the largest electric
grid in the nation, and selected electric utilities who support and sponsor
demand response. All of our current operations are in the United
States with services provided in more than 25 states. Following a
three year testing and pilot period, we began commercial operations in
2005. Our revenues in 2008 were $25.9 million. Our
suppliers are commercial and industrial electric energy consumers who we pay to
shift, curtail, bank, and in some cases produce electric energy.
ECI
operates on a national footprint currently serving consumers and grid operators
in more than 25 states.
ECI delivers
services to wholesale electric markets of regional electric
grids. Selected needs of electric grid operators, including energy,
capacity, and reserves have been formed into products that can be delivered
through ECI systems to the grid. ECI technologies, processes, and
services enable buildings and electric consumers to contribute to such wholesale
services in direct competition with expensive peaking power plants.
In 2003
we acquired a part of Christenson Electric, Inc. (“CEI”), and in 2005, we
acquired the remainder of CEI and the operations of ECI. This
combined a 60 year old electrical contracting and technology business with a
high growth demand response business. In 2007 we determined that ECI
had grown to a self sustaining transition point and in November 2007 we agreed
to sell the stock of CEI. Our objective is to leverage our unique and
proprietary technologies, business processes, and resources and build a viable,
profitable demand response business servicing North American wholesale power
markets. Financial statements and accompanying notes included in this report
include disclosure of the results of operations for CEI, for all periods
presented, as discontinued operations. All significant inter-company
accounts and transactions have been eliminated in consolidation.
The
Company was incorporated in October 1986 as an Oregon Corporation, succeeding
operations that began in October 1984. The Company’s headquarters are
located in Campbell, California.
Critical
Accounting Policies
The
discussion and analysis of financial condition and results of operations is
based upon our consolidated financial statements, which have been prepared in
accordance with accounting principles generally accepted in the United States.
The preparation of these financial statements requires us to make estimates and
judgments that affect the reported amounts of assets, liabilities, revenues and
expenses, and related disclosure of contingent assets and liabilities. We
continuously evaluate our estimates and judgments, including those related to
revenue recognition, sales returns, bad debts, excess inventory, impairment of
goodwill and intangible assets, income taxes, contingencies and litigation. Our
estimates are based on historical experience and assumptions that we believe to
be reasonable under the circumstances, the results of which form the basis for
making judgments about the carrying values of assets and liabilities that are
not readily apparent from other sources. Actual results may differ from these
estimates under different assumptions or conditions. We discuss the
development and selection of the critical accounting estimates with the Audit
Committee of our Board of Directors on a quarterly basis, and the Audit
Committee has reviewed our related disclosure in this Form 10-Q.
We
believe the following critical accounting policies, among others, affect our
more significant judgments and estimates used in the preparation of our
consolidated financial statements:
Revenue
recognition
We
produce revenue through agreements with both building owners and the power grid
operators. Under our agreements with facilities owners, we use electrical and
energy related products that help energy consumers control energy use in their
buildings. In conjunction with this agreement we are members of the power grid
operators and have agreed to provide the grids with energy, capacity, and
related ancillary services during specified times and under specified
conditions. These transactions are summarized at the end of each monthly period
and submitted to the power grids for settlement and approval. While the power
grids are our customers, they are primarily a conduit through which these
electrical curtailment transactions are processed. The vast majority
of our revenue in 2008 was processed through the PJM Interconnection. PJM serves
as the market for electrical transactions in a specific region in the United
States. Our agreement with PJM is an ongoing one as we are members of
PJM. These transactions are initiated by building owners, who are our
participants. The transactions form the basis for our
revenue. We have little risk, if any, from the concentration of
revenue through this power grid as it’s a not-for-profit organization that
exists to act as the market for electrical transactions.
In 2008,
we revised our accounting for reserves for collections of revenues. The revision
in our reserve accounting was a result of improvements in our ability to
accurately estimate collections, which is based upon historical trends and
timely and accurate information. Previously the transactions were
recorded as revenue on the settlement date, which typically fall 45-70 days
after the transaction date from which the revenue is derived, because management
believed that without an established history for this source of revenue, and the
potential for disputes, that the settlement date, on which both parties agree to
the amount of revenue to recognize, was the most conservative and appropriate
date to use. For periods beginning with the first quarter of 2008 and
forward, revenue from these settlements were accrued into the prior month
instead of recognizing revenue as the settlement amounts were
received. The record of these settlement amounts being realized over
the prior two years had been extremely accurate so that management believed it
was appropriate to accrue the settlement amounts into the prior
month. This revision in our reserve accounting resulted in an extra
month of revenue being recorded in the first quarter of 2008. This
first quarter of 2008 contained the payment received in January of 2008 (which
was not accrued into December) and the settlement amounts from the fifth
business day in February, March and April of 2008, each of which was accrued
into the prior months of January, February and March of 2008. The
first quarter of 2009 includes three months of revenue which is comprised of the
settlement amounts from the fifth business day in February, March and April of
2009, each of which was accrued into the prior months of January, February and
March of 2009. Therefore, the nine month period ended September 27,
2008 is comprised of ten months of settlement amounts and the nine month period
ended October 3, 2009 is comprised of nine months of settlement
amounts.
An
additional source of our revenue is derived from agreements with the power grid
operators whereby a monthly reserve fee is paid for our agreement to standby,
ready to provide relief in the form of curtailment of energy usage, in times of
high energy demand. We record these payments as revenue over the
period during which we’re required to perform under these
programs. Under certain programs, our obligation to perform may not
coincide with the period over which we receive payments under that
program. In these cases we record revenue over the mandatory
performance obligation period and record a receivable for the amount of payments
that will be received after that period has been completed.
Accruals
for contingent liabilities
We make
estimates of liabilities that arise from various contingencies for which values
are not fully known at the date of the accrual. These contingencies may include
accruals for reserves for costs and awards involving legal settlements, costs
associated with vacating leased premises or abandoning leased equipment, and
costs involved with the discontinuance of a segment of a business. Events may
occur that are resolved over a period of time or on a specific future date.
Management makes estimates of the potential cost of these occurrences, and
charges them to expense in the appropriate periods. If the ultimate resolution
of any event is different than management’s estimate, compensating entries to
earnings may be required.
Purchase
price allocation and impairment of intangible and long-lived assets
Intangible
and long-lived assets to be held and used are reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amounts of such
assets may not be recoverable. Determination of recoverability is based on an
estimate of undiscounted future cash flows resulting from the use of the asset,
and its eventual disposition. Measurement of an impairment loss for intangible
and long-lived assets that management expects to hold and use is based on the
fair value of the asset as estimated using a discounted cash flow
model.
We
measure the carrying value of goodwill recorded in connection with the
acquisitions for potential impairment in accordance with GAAP, a company is
divided into separate “reporting units,” each representing groups of products
that are separately managed. For this purpose, we have one reporting unit. To
determine whether or not goodwill may be impaired, a test is required at least
annually, and more often when there is a change in circumstances that could
result in an impairment of goodwill. If the trading of our common stock is below
book value for a sustained period, or if other negative trends occur in our
results of operations, a goodwill impairment test will be performed by comparing
book value to estimated market value. To the extent goodwill is determined to be
impaired, an impairment charge is recorded in accordance with GAAP.
We tested
our intangibles for impairment as of the end of fiscal years 2005 through 2008.
Goodwill of $106,544,871 was recorded upon the acquisition of ECI in October
2005, and represented the excess of the purchase price over the fair value of
the net tangible and intangible assets acquired. At December 31, 2005, it was
determined in an independent valuation that the goodwill generated in this
transaction was impaired. The Company decided to write off approximately
$77,191,344 of this goodwill. At January 3, 2009, it was determined
that the remaining carrying value of goodwill generated from the 2005
transaction was impaired. The Company decided to write off the remaining
carrying value of goodwill of $29,353,527. The amortization of the intangible
assets is included in operating expenses in the consolidated statements of
operations.
Stock-Based
Compensation
In
accordance with GAAP regarding “Share-Based Payment,” (which requires the
measurement and recognition of compensation expense for all share-based payment
awards made to employees and directors including employee stock options based on
estimated fair values), we are using the modified prospective transition method,
which requires the application of the accounting standard as of January 1, 2006,
the first day of the Company’s fiscal year 2006.
Stock-based
compensation expense recognized for the three months ended October 3, 2009 and
September 27, 2008 was approximately $187,000 and $172,000,
respectively. Employee stock-based compensation expense recognized
for the nine months ended October 3, 2009 and September 27, 2008 was
approximately $601,000 and $644,000, respectively.
GAAP
requires companies to estimate the fair value of share-based payment awards on
the date of grant using an option-pricing model. The value of the portion of the
award that is ultimately expected to vest is recognized as expense over the
requisite service periods in our Consolidated Statement of Operations.
Previously, we accounted for stock-based awards to employees and directors using
the intrinsic value method. Under the intrinsic value method, no
stock-based compensation expense had been recognized in our Consolidated
Statement of Operations because the exercise price of our stock options granted
to employees and directors equaled the fair market value of the underlying stock
at the date of grant.
Stock-based
compensation expense recognized during the period is based on the value of the
portion of share-based payment awards that is ultimately expected to vest during
the period. Stock-based compensation expense recognized in our Consolidated
Statements of Operations for the three and nine months ended October 3, 2009 and
September 27, 2008 included compensation expense for share-based payment awards
granted prior to, but not yet vested as of December 31, 2005 based on the grant
date fair value estimated in accordance with pro forma provisions and
compensation expense for the share-based payment awards granted subsequent to
December 31, 2005 based on the grant date fair value estimated. GAAP
requires forfeitures to be estimated at the time of grant and revised, if
necessary, in subsequent periods if actual forfeitures differ from those
estimates.
We are
using the Black-Scholes option-pricing model as its method of valuation for
share-based awards granted beginning in fiscal 2006, which was also previously
used for our pro forma information required. Our determination of fair value of
share-based payment awards on the date of grant using an option-pricing model is
affected by our stock price as well as assumptions regarding a number of highly
complex and subjective variables. These variables include, but are not limited
to our expected stock price volatility over the term of the awards, and certain
other market variables such as the risk free interest rate.
Computation of Net Income (Loss) per
Share
Basic
earnings (loss) per common share are computed using the weighted-average number
of common shares outstanding during the period. Diluted earnings per
common share is computed using the combination of dilutive common share
equivalents, which include convertible preferred shares, options and warrants
and the weighted-average number of common shares outstanding during the
period. During the nine months ended October 3, 2009 and the nine
months ended September 27, 2008, common stock equivalents are not considered in
the calculation of the weighted average number of common shares outstanding
because they would be anti-dilutive, thereby decreasing the net loss per common
share.
Concentrations
Financial
transactions and instruments that potentially subject us to concentrations of
credit risk consist primarily of revenue generating transactions and the
resultant accounts receivable. During the three months ended October
3, 2009, revenue from one customer, whom is a grid operator, approximated
$9,479,000 or 92% of total revenue. This revenue is the result of multiple
participating electric consumers that each executed myriad energy transactions
in the economic market, or that are registered in capacity
programs. These economic transactions and capacity commitments were
aggregated and billed to the grid operators. That revenue is
dependent on actions taken or commitments made to reduce electricity usage by
these third parties in conjunction with ECI, for which the grids, as our
customers, remit payments to us. These transactions form the basis
for the majority of our annual revenue. We have little risk, if any,
from the concentration of revenue through these power grids as they maintain the
market for electrical transactions and capacity support for the grids.
For the
three months ended October 3, 2009, there were no participants whose
transactions resulted in revenue that totaled more than 10% of our
revenue. During the three months ended September 27, 2008, there was
one customer who generated 96% of the Company’s revenue and one participant
whose transactions generated 13% of the Company’s total revenue.
For the
nine month period ended October 3, 2009, one customer generated 91% of the
Company’s total revenues. There were no participants whose capacity
commitments generated more than 10% of our revenues. For the nine
month period ended September 27, 2008, there was one participant whose capacity
commitments generated 13% of the Company’s total revenue.
At
October 3, 2009 and January 3, 2009 there was one customer whose trade accounts
receivable balance represented 80% and 94% of our outstanding trade accounts
receivable respectively.
We have
little risk, if any, from the concentration of revenues and receivables through
our power grid customers as they maintain the various markets for electrical
transactions and are pass-through entities regulating the payments between
purchasers and suppliers of electricity. We perform limited credit
evaluations of our power grid customers and do not require collateral on
accounts receivable balances. We have not experienced material credit losses for
the periods presented.
The level
of revenue resulting from any single participant’s transactions may vary and the
loss of any one of these participants, or a decrease in the level of revenue
from transactions generated by any one of these participants, could have a
material adverse impact on our financial condition and results of
operations.
Recent
Accounting Pronouncements
See
Note 1 of the Unaudited Condensed Consolidated Financial Statements for a
full description of new accounting pronouncements, including the respective
expected dates of adoption and effects on results of operations and financial
condition.
Results
of Operations
The
financial information presented is for the three and nine months ended October
3, 2009 and September 27, 2008, represents activity in EnergyConnect Group, Inc.
and its wholly-owned subsidiary, ECI.
Revenue.
The
Company generates revenue mainly from demand response transactions regulated by
a FERC tariff. These transactions include economic or price-based
programs and capacity programs.
Economic
or price-based programs entail voluntary, daily opportunities to enter into
transactions in the energy markets based on our customers’ responses to
fluctuations in hourly energy prices.
Capacity
programs allow for payments to partners such as ECI based on energy availability
and curtailment when required by an electric grid to stabilize the supply and
demand of electricity on the grid. Also included in the FERC tariff
are rules under which we recognize revenue in capacity based energy
programs.
The FERC
tariff also allows for other revenue opportunities in helping to meet various
needs of electric grids. We recognize revenue from these programs
ratably over the months during which our response is required.
Three months ended October
3, 2009 compared to Three months ended September 27, 2008.
Revenue
for the three months ended October 3, 2009 was approximately $10,338,000
compared to $11,641,000 for the three months ended September 27, 2008, a
reduction of approximately $1,303,000 or (11%).
The
reduction in revenues of approximately $1,303,000 is primarily attributable to a
change in the revenue recognition pattern for the PJM ILR capacity program
arising from a change in the terms of and administration of the program by PJM.
For the three months ended October 3, 2009 approximately 75% of the annual
revenue for the program was included in the period, the other 25% being
recognized in revenues during the second quarter which ended on July 4, 2009.
For the three months ended September 27, 2008, approximately 100% of the annual
revenue for the program was included in the period.
For the
three months ended October 3, 2009, one customer generated 92% the Company’s
total revenue, no other customer generated more than 10% of the Company’s total
revenue. For the three months ended September 27, 2008, one customer generated
96% of the Company’s total revenue, no other customer generated more than 10% of
the Company’s total revenue.
For the
three months ended October 3, 2009, there were no participants whose capacity
commitments generated more than 10% of the Company’s total revenue. For the
three months ended September 27, 2008, there was one participant whose capacity
commitments generated 13% of the Company’s total revenue.
Nine months ended October 3,
2009 compared to Nine months ended September 27, 2008.
Revenue
for the nine months ended October 3, 2009 was approximately $19,070,000 compared
to approximately $24,083,000 for the nine months ended September 27, 2008, a
reduction of $5,013,000 or (21%).
The
reduction in revenues of approximately $5,013,000 is primarily attributable to
the nine month period ended September 27, 2008, being comprised of ten months
settlement amounts and the nine month period ended October 3, 2009, being
comprised of nine months of settlement amounts as described in the Critical
Accounting Policies.
For the
nine months ended October 3, 2009 and the nine months ended September 27, 2008,
approximately 100% of the annual revenues for the PJM ILR capacity program are
included in the period.
For the
nine months ended October 3, 2009, one customer generated 91% the Company’s
total revenue, no other customer generated more than 10% of the Company’s total
revenue. For the nine months ended September 27, 2008, one customer generated
96% of the Company’s total revenue, no other customer generated more than 10% of
the Company’s total revenue.
For the
nine months ended October 3, 2009, there were no participants whose capacity
commitments generated more than 10% of the Company’s total revenue. For the nine
months ended September 27, 2008, there was one participant whose capacity
commitments generated 13% of the Company’s total revenue.
Cost of Revenues.
Three months ended October
3, 2009 compared to three months ended September 27, 2008.
Cost of
revenues for the three months ended October 3, 2009 was approximately $7,221,000
compared to $6,458,000 for the three months ended September 27, 2008, an
increase of approximately $763,000 or (12%).
Nine months ended October 3,
2009 compared to nine months ended September 27, 2008.
Cost of
revenues for the nine months ended October 3, 2009 was approximately $12,161,000
compared to $16,945,000 for the nine months ended September 27, 2008, a
reduction of approximately $4,784,000 or (28%).
Cost of
revenues includes the payments to our participants for capacity commitments made
by them, and for transactions initiated by them, and various costs required to
do business in the grids in which we operate.
Gross
Profit.
Three months ended October
3, 2009 compared to Quarter ended September 27, 2008.
Gross
profit for the three months ended October 3, 2009 was approximately $3,117,000
or (30% of revenues) compared to approximately $5,183,000 or (45% of revenues)
for the three months ended September 27, 2008, a reduction of $2,066,000 or
(40%).
The
reduction in gross profit is primarily attributable to lower revenues and to an
overall lower gross margin percentage. The reduction in gross margin percentage
from 45% to 30% is primarily attributable to the change in the mix of capacity
and economic programs.
Nine months ended October 3,
2009 compared to Nine months ended September 27, 2008.
Gross
profit for the nine months ended October 3, 2009 was approximately $6,909,000 or
(36% of revenues) compared to $7,138,000 or (30% of revenues) for the same
period in 2008, representing a reduction in gross profit of $229,000 or
(3%).
The
reduction in gross profit is primarily attributable to lower revenues which have
been partially offset by an overall higher gross margin percentage. The increase
in gross margin percentage to 36% of revenues in 2009 from 30% of revenues in
2008 is primarily attributable to the change in the customer mix and the mix of
capacity and economic programs.
Future
gross profit margins will depend on the Company’s ability to sign contracts with
participants for appropriate percentages for the duration of the contract
term.
Operating
Expenses.
Three months ended October
3, 2009 compared to Three months ended September 27, 2008.
Operating
expenses for the three months ended October 3, 2009, were approximately
$2,246,000 compared to approximately $3,024,000 for the three
months ended September 27, 2008, a reduction of approximately
$778,000 or (25.7%)
This
reduction in operating expenses was primarily attributable to, lower personnel
costs of approximately $700,000, and lower professional services costs of
approximately $100,000.
The
reduction in personnel costs of approximately $700,000 which was primarily
attributable to lower headcount and a decrease in the use of temporary
labor.
Included
in the reduction of personnel costs was the impact of a increase in the non-cash
charge for employee stock-based compensation, which was approximately $187,000
for the three months ended October 3, 2009, compared to $172,000 for the nine
months ended September 27, 2008, a increase of approximately $15,000 or
(9%).
Nine months ended October 3,
2009 compared to Nine months ended September 27, 2008.
Operating
expenses for the nine months ended October 3, 2009 were approximately $7,126,000
for the nine months ended October 3, 2009, compared to approximately $9,322,000
for the nine months ended September 27, 2008, a reduction of approximately
$2,196,000 or (23.6%)
This
reduction in operating expenses was primarily attributable to, lower personnel
costs of approximately $1,600,000, lower advertising and marketing costs of
approximately $400,000, lower professional services costs of approximately
$100,000 and lower other costs of $100,000.
The
reduction in personnel costs of approximately $1,600,000 represented a 27%
reduction in these costs, which was primarily attributable to lower headcount
and a decrease in the use of temporary labor.
Included
in the reduction of personnel costs was the impact of a reduction in the
non-cash charge for employee stock-based compensation, which was approximately
$601,000 for the nine months ended October 3, 2009, compared to $644,000 for the
nine months ended September 27, 2008, a reduction of approximately $43,000 or
(7%).
Interest
Expense.
Three months ended October
3, 2009 compared to three months ended September 27, 2008.
Net
interest expense was $342,000 for the three months ended October 3, 2009
compared to net interest expense $12,000 for the three months ended September
27, 2008.
Nine months ended October 3,
2009 compared to Nine months ended September 27, 2008.
Net
interest expense was $735,000 for the nine months ended October 3, 2009,
compared to $7,000 of net interest income for the nine months ended September
27, 2008.
Net
interest expense in 2009 is comprised mainly of interest expense incurred under
the Company’s debt facility and amortization of debt discount associated with
the beneficial conversion feature of the debt facility. Interest
expense on the debt facility for the three and nine months ended October 3, 2009
was $185,000 and $458,000 respectively. Debt discount amortization
for the three and nine months ended October 3, 2009 was $160,000 and $281,000,
respectively.
Gain / Loss From
Discontinued Operations.
Discontinued
operations represents a loss from the operations of the Christenson Electric
electrical construction business. On November 29, 2007, our
board of directors signed an agreement to sell all of the shares of our
wholly-owned subsidiary Christenson Electric, Inc. to a corporation formed by
the management of CEI. The agreement was approved by our shareholders in a
vote on March 10, 2008. The closing occurred on April 24,
2008. The Company recorded a gain from discontinued operations of
$29,000 for the three months ended June 28, 2008. The Company
recorded a loss from discontinued operations of $146,000 for the nine months
ended September 27, 2008. On April 24, 2008, the sale of discontinued
operations was consummated, and the Company recorded a gain on the sale of
discontinued operations in the amount of $135,000.
Income
Taxes.
No federal tax benefit from loss carryback was recorded in either year as there was no income tax paid in the open loss carryback periods. The Company has provided a full valuation allowance on its net deferred tax asset.
Liquidity
and Capital Resources
Since
inception, the Company has financed its operations and capital expenditures
through public and private sales of equity securities, cash from operations, and
borrowings under debt facilities. At October 3, 2009, the Company had
positive working capital of approximately $2,160,000 and its primary source of
liquidity consisted of cash advances under its debt facility and cash generated
from operations. Of the amounts contained in certificates of deposit,
$66,800 was restricted at both October 3, 2009 and January 3, 2009.
On
February 26, 2009 we entered into a Business Loan Agreement, a Convertible
Secured Promissory Note and Commercial Security Agreement (collectively the
“Loan Agreements”) with Aequitas Commercial finance, LLC
(Aequitas). Pursuant to the terms and conditions of the Loan
Agreements, Aequitas will provide the Company with a revolving credit facility
enabling the Company to borrow money in a maximum principal amount not to exceed
$5,000,000. As security for this loan, the Companies granted
Aequitas a first priority security interest in the assets of the
Companies. The Loan Agreements grant Aequitas the right to convert up
to two-thirds (2/3rds) of unpaid principal and interest into shares of ECNG’s
common stock at an exercise price of $0.091.
On May 7,
2008 we closed a private placement in which we issued 9,051,310 shares of common
stock resulting in aggregate cash proceeds of $3,512,000 and elimination of
accounts payable of $103,000. In conjunction with this private
placement, we also issued 4,525,655 five year warrants exercisable at $0.60 per
share. The proceeds of this financing were used for general working
capital purposes.
Accounts
receivable increased to $10,712,000 at October 3, 2009 from $4,374,000 at
January 3, 2009. The increase was primarily due to the recognition of
revenue and receivables from the 2009-2010 ILR capacity
program. Receivables were also affected by collections from the prior
year ILR capacity receivable that was outstanding at January 3,
2009. The receivable from the 2008-2009 ILR capacity program which
was approximately $6 million as of the end of September 2008,
decreased ratably through the end of the second quarter of 2009 and
was paid in full as of the end of the current quarter. Our remaining
receivables will increase and decrease in accordance with the revenue recognized
in each quarter. The large majority of our revenue, and therefore
cash and receivables, is generated through the PJM
Interconnection. PJM serves as the market for electrical transactions
in a specific region in the United States. We are members of PJM, and
our relationship with this power grid is perpetual. We have little
risk, if any, from the concentration of revenue through this power grid as it is
a not-for-profit organization that exists to act as the market for electrical
transactions.
Property
and equipment, net of depreciation, decreased to $286,000 at October 3,
2009, compared to $299,000 at January 3, 2009. This decrease was
due primarily to the capitalization of software costs to produce internally used
software, less normal depreciation on fixed assets. The Company does
not anticipate spending significant amounts to acquire fixed assets for the
foreseeable future.
Accounts
payable increased to $10,242,000 at October 3, 2009 from $5,116,000 at
January 3, 2009. The increase was primarily due to the accrual of
participant payments to match recognition of expenses associated with the PJM
ILR capacity program with the recognition of revenue and
receivables. At October 3, 2009, other than normal obligations to
vendors, payables consist primarily of payment obligations to participants, not
currently due, in our capacity programs and to normal monthly obligations in our
economic programs.
The
Company had no material commitments for capital expenditures at October 3,
2009.
As a
result of our history of losses and our experiencing difficulty in generating
sufficient cash flow to meet our obligations and sustain our operations, our
independent registered public accounting firm, in their report included in our
January 3, 2009 Form 10-K, have expressed substantial doubt about our ability to
continue as going concern.
In prior
periods, we generated cash through our discontinued operating subsidiary,
Christenson Electric, Inc. This subsidiary also held a $10 million
operating line of credit under which we borrowed funds against eligible accounts
receivable. The funds generated from the discontinued operations and
their debt facility are no longer available to the continuing
entity. All future cash will need to be generated from the operations
of EnergyConnect, our debt facility and from funds raised through future debt
and equity financings should cash generated from operations and current debt
facilities prove insufficient.
Management
believes it has sufficient capital resources to meet projected cash flow
deficits for the following twelve months. If during that period or
thereafter, the Company is not successful in generating sufficient liquidity
from operations, cash needs exceed its ability to borrow on its debt facility,
or in raising sufficient capital resources, on terms acceptable to them, this
could have a material adverse effect on the Company’s business, results of
operations liquidity and financial condition.
The
Company has reduced costs through two reductions in force, and through
management salary reductions in the last two sequential quarters. If
operations and cash flows continue to improve through these efforts, management
believes that the Company can continue to operate. However, no
assurance can be given that management’s actions will result in profitable
operations or the resolution of its liquidity problems.
Our
registered independent certified public accountants have stated in their report
dated March 19, 2009, that we have incurred operating losses in the past years,
and that we are dependent upon management's ability to develop profitable
operations. These factors among others may raise substantial doubt about our
ability to continue as a going concern.
Inflation
In the
opinion of management, inflation will not have a significant impact on the
Company’s financial condition and results of its operations.
Off-Balance
Sheet Arrangements
The
Company does not maintain off-balance sheet arrangements nor does it participate
in any non-exchange traded contracts requiring fair value accounting
treatment.
Item 3. Quantitative and Qualitative Disclosures About
Market Risks
The
Company does not own or trade any financial instruments about which disclosure
of quantitative and qualitative market risks are required to be
disclosed.
Item
4. Controls and
Procedures
Disclosure
controls and procedures are controls and other procedures that are designed to
ensure that information required to be disclosed by us in the reports that we
file or submit under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Securities and Exchange
Commission’s rules and forms. Disclosure controls and procedures include,
without limitation, controls and procedures designed to ensure that information
required to be disclosed by us in the reports that we file under the Exchange
Act is accumulated and communicated to our management, including our principal
executive and financial officers, as appropriate to allow timely decisions
regarding required disclosure.
Evaluation
of Disclosure Controls and Procedures
As of the end of the period covered by this Quarterly Report, we carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer (CEO) and Chief Financial Officer (CFO), of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Based on that evaluation, our CEO and CFO concluded, as of the end of such period, our disclosure controls and procedures were effective in ensuring that the information required to be filed or submitted under the Exchange Act is recorded, processed, summarized and reported as specified in the Securities and Exchange Commission's rules and forms, and accumulated and communicated to our management, including our CEO and CFO, as appropriate to allow timely decisions regarding required disclosure.
Changes
in Internal Control over Financial Reporting
There
were no changes in internal controls over financial reporting that occurred
during the period covered by this report that have affected, or are reasonably
likely to affect, our internal control over financial reporting.
PART
II. OTHER INFORMATION
Item 1. Legal Proceedings
During
2008, we were contacted by FERC and asked to provide information to them as part
of a non-public inquiry on the demand response markets, and our activity in our
markets under the FERC tariffs. Over a period of 8 months we provided
them with the requested documentation both in paper and electronic form, and
voluntarily provided them with access to certain of our employees in an effort
to answer all questions put forth to us. Our responses under the
inquiry were completed on December 31, 2008.
On April
28, 2009, staff from FERC’s Office of Enforcement informed EnergyConnect
that FERC had found our technology and business processes to be in
compliance with the tariff and had closed its inquiry, without any proposed
enforcement actions or remedies.
The
Company is subject to legal proceedings and claims, which arise in the ordinary
course of its business. Although occasional adverse decisions or settlements may
occur, the Company believes that the final disposition of such matters should
not have a material adverse effect on its financial position, results of
operations or liquidity.
Item 1A. Risk Factors
In
addition to the other information set forth in this report, you should carefully
consider the factors discussed in Item 7 (Management's Discussion and Analysis
of Financial Condition and Plan of Operation) of our Annual Report on
Form 10-K for the year ended January 3, 2009 (the "Annual Report"), which
could materially affect our business, financial condition or future results.
There have been no material changes to the risk factors disclosed in the Annual
Report.
Item 2.Unregistered Sales of Equity
Securities and Use of Proceeds
None
Item 3. Defaults Upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security
Holders
The
Company held its annual shareholders’ meeting on July 28, 2009. There were
present at the meeting in person or by proxy shareholders of the Corporation who
were the holders of 61,092,167 (64.4%), shares of Common Stock entitled to vote
thereat constituting a quorum. There were three proposals upon which
shareholders were asked to vote.
|
·
|
Election
of directors.
|
|
·
|
To
approve the restatement of EnergyConnect’s 2004 Stock Incentive Plan to
make amendments and updates as necessary to comply with recent changes in
applicable laws and provide flexibility for employee compensation;
and
|
|
·
|
To
transact such other business as may properly come before the Annual
Meeting and any adjournment or adjournments
thereof.
|
The
following nominees were elected by the following vote count.
Votes
For
|
Votes
Withheld
|
|||||||
William
C. McCormick
|
46,575,227 | 14,516,940 | ||||||
Rodney
M. Boucher
|
48,421,809 | 12,670,358 | ||||||
John
P. Metcalf
|
60,481,744 | 610,423 | ||||||
Kurt
E. Yeager
|
60,720,026 | 372,141 | ||||||
Gary
D. Conley
|
60,469,852 | 622,315 | ||||||
Kevin
R. Evans
|
60,463,190 | 628,977 |
On April
1, 2009, Gene Ameduri tendered his resignation from the Company’s board of
directors.
The
shareholders passed both the second and third proposals listed
above.
Item
5. Other Information
None
Item
6. Exhibits
(a) The
exhibits filed as part of this report are listed below:
Exhibit
No.
31.1 Certification of
Chief Executive Officer pursuant to Section 302, of the Sarbanes-Oxley Act
of 2002.
31.2 Certification of
Chief Financial Officer pursuant to Section 302, of the Sarbanes-Oxley Act
of 2002.
32.1 Certification of
Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of
Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
In
accordance with the requirements of the Exchange Act, the registrant caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated: November
12, 2009
ENERGYCONNECT
GROUP, INC.
|
|
By:
/s/ Kevin R. Evans
|
|
Kevin
R. Evans
|
|
Chief
Executive Officer
|
|
(Principal
Executive Officer)
|
29