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EX-31.2 - Merriman Holdings, Incv166442_ex31-2.htm
EX-31.1 - Merriman Holdings, Incv166442_ex31-1.htm
EX-32.1 - Merriman Holdings, Incv166442_ex32-1.htm


SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 


FORM 10-Q
 
x
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

For the quarterly period ended September 30, 2009
 
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

For the Transition Period from ____________ to ____________.

Commission file number: 1-15831

MERRIMAN CURHAN FORD GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
 
Delaware
 
11-2936371
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification No.)
 
600 California Street, 9th Floor
San Francisco, CA
 
94108
(Address of Principal Executive Offices)
 
(Zip Code)

(415) 248-5600
(Registrant’s Telephone Number, Including Area Code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes x No ¨

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

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer  ¨
 
Accelerated filer  ¨
Non-accelerated filer  ¨
 
Smaller reporting company  x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes ¨ No x





 
Merriman Curhan Ford Group, Inc.
Index
 
   
Page No.
 
PART I FINANCIAL INFORMATION
     
ITEM 1. Financial Statements (unaudited)
     
Consolidated Statements of Operations For the Three Months and Nine Months Ended September 30, 2009 and 2008
    3  
Consolidated Statements of Financial Condition as of September 30, 2009 and December 31, 2008
    4  
Consolidated Statements of Cash Flows For the Nine Months Ended September 30, 2009 and 2008
    5  
Notes to Consolidated Financial Statements
    6  
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
    27  
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk
    46  
ITEM 4. Controls and Procedures
    47  
         
PART II OTHER INFORMATION
       
ITEM 1. Legal Proceedings
    48  
ITEM 1A. Risk Factors
    53  
ITEM 6. Exhibits
    54  
Signatures
    55  
Certifications
       

2

PART I.  FINANCIAL INFORMATION

ITEM 1.   Financial Statements (unaudited)
 
MERRIMAN CURHAN FORD GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
 
   
Three Months Ended
   
Nine Months Ended
 
   
September 30,
2009
   
September 30,
2008
   
September 30,
2009
   
September 30,
2008
 
Revenue:
                               
Commissions
  $ 9,804,718     $ 7,992,614     $ 28,892,568     $ 24,353,696  
Principal transactions
    (35,522     (5,384,303 )     (131,020     (5,280,550 )
Investment banking
    3,127,596       1,600,260       5,411,463       9,423,666  
Advisory and other fees
    411,602       341,656       1,618,282       581,256  
Total revenue
    13,308,394       4,550,227       35,791,293       29,078,068  
Operating expenses:
                               
Compensation and benefits
    10,230,680       7,876,092       29,687,486       31,205,145  
Brokerage and clearing fees
    208,051       558,344       791,407       2,042,828  
Professional services
    1,063,883       3,994,278       3,096,428       7,356,228  
Occupancy and equipment
    551,300       540,104       1,617,347       1,601,104  
Communications and technology
    881,879       662,912       2,442,979       2,556,652  
Depreciation and amortization
    109,922       279,261       372,913       537,166  
Travel and entertainment
    449,108       634,689       1,058,840       2,528,083  
Litigation settlement expenses
    5,334,926    
      5,334,926    
 
Other expenses
    369,581       1,295,405       1,631,435       3,297,102  
Total operating expenses
    19,199,330       15,841,085       46,033,761       51,124,308  
Operating loss
    (5,890,936 )     (11,290,858 )     (10,242,468 )     (22,046,240 )
Other income
 
 
      2,000,000  
 
Change in fair value of warrant liability
    (9,628,460 )  
      (9,628,460 )  
 
Interest income
    4,425       195,283       13,591       325,703  
Interest expense
    (1,289,401 )     (20,236 )     (1,333,569 )     (53,619 )
Loss before provision for income tax
    (16,804,372 )     (11,115,811 )     (19,190,906 )     (21,774,156 )
(Provision for) benefit from income tax
    235,727       (198,014     230,528       1,640,730  
Loss from continued operations
    (16,568,645 )     (11,313,825 )     (18,960,378 )     (20,133,426 )
Loss from discontinued operations
 
      (409,513 )     (94,894 )     (3,753,729 )
Net loss
    (16,568,645 )     (11,723,338 )     (19,055,272 )     (23,887,155 )
Preferred stock deemed dividend
    (5,066,702 )  
      (5,066,702 )  
 
Preferred stock cash dividend
    (39,100 )  
      (39,100 )  
 
Net loss attributable to common shareholders
  $ (21,674,447 )   $ (11,723,338 )   $ (24,161,074 )   $ (23,887,155 )
Basic and diluted loss per share attributable to common shareholders – continued operations
    (1.71     (0.89 )     (1.89 )     (1.61 )
Basic and diluted loss per share attributable to common shareholders – discontinued operations
 
      (0.04 )     (0.01 )     (0.30 )
Basic and diluted net loss per share attributable to common shareholders
  $ (1.71 )   $ (0.93 )   $ (1.90 )   $ (1.91 )
Weighted average common shares outstanding:
                               
Basic and Diluted
    12,668,073       12,672,598       12,692,013       12,498,687  

The accompanying notes are an integral part of these consolidated financial statements.
 
3

 
MERRIMAN CURHAN FORD GROUP, INC.
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(unaudited)
 
 

   
September 30,
2009
   
December 31,
2008
 
 ASSETS
           
Cash and cash equivalents
  $ 7,525,918     $ 6,358,128  
Securities owned:
               
Marketable, at fair value
    4,628,719       4,622,577  
Not readily marketable, at estimated fair value
    284,540       366,061  
Other
    138,032       185,065  
Restricted cash
    1,072,771       1,131,182  
Due from clearing broker
    2,113,303       1,752,535  
Accounts receivable, net
    2,045,059       612,234  
Prepaid expenses and other assets
    748,412       619,759  
Equipment and fixtures, net
    592,720       1,260,011  
Assets held for sale
          1,958,038  
Total assets
  $ 19,149,474     $ 18,865,590  
LIABILITIES AND STOCKHOLDERS' EQUITY
               
Accounts payable
  $ 774,774     $ 712,591  
Commissions and bonus payable
    3,926,424       3,182,941  
Accrued expenses
    1,953,594       3,637,345  
Due to clearing and other brokers
    9,177       28,022  
Securities sold, not yet purchased
    838,199       903,217  
Deferred revenue
    338,648       709,691  
Capital lease obligation
    514,184       923,683  
Warrant liability
    26,521,711    
 
Liabilities held for sale
          1,052,899  
Total liabilities
    34,876,711       11,150,389  
Commitments and contingencies
               
Stockholders' equity:
               
Preferred stock, Series A—$0.0001 par value; 2,000,000 shares authorized; 0 shares issued and outstanding as of September 30, 2009 and December 31, 2008,; aggregate liquidation preference of $0
 
   
 
Preferred stock, Series B—$0.0001 par value; 12,500,000 shares authorized; 1,250,000 shares issued and 0 shares outstanding as of September 30, 2009 and December 31, 2008; aggregate liquidation preference of $0
 
   
 
Preferred stock, Series C—$0.0001 par value; 14,200,000 shares authorized; 1,685,714 shares issued and 0 shares outstanding as of September 30, 2009 and December 31, 2008; aggregate liquidation preference of $0
 
   
 
Convertible Preferred stock, Series D—$0.0001 par value; 24,000,000 shares authorized, 23,720,916 shares issued and 23,720,916 shares outstanding as of September 30, 2009; and 0 shares authorized, issued and outstanding as of December 31, 2008; aggregate liquidation preference of $10,199,994 prior to conversion, and pari passu with common stock on conversion.
    2,372    
 
Common stock, $0.0001 par value; 300,000,000 shares authorized; 12,915,442 and 12,756,656 shares issued and 12,713,565 and 12,730,218 shares outstanding as of September 30, 2009 and December 31, 2008, respectively
    1,292       1,278  
Additional paid-in capital
    122,903,643       127,193,195  
Treasury stock
    (225,613 )     (125,613 )
Accumulated deficit
    (138,408,931 )     (119,353,659 )
Total stockholders' (deficit) equity
    (15,727,237 )     7,715,201  
Total liabilities and stockholders' (deficit) equity
  $ 19,149,474     $ 18,865,590  
 
The accompanying notes are an integral part of these consolidated financial statements.
 
4

 
MERRIMAN CURHAN FORD GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
 
   
Nine Months Ended
September 30,
 
   
2009
   
2008
 
Cash flows from operating activities:
           
Net loss
 
$
(19,055,272
)
 
$
(23,887,155
)
Adjustments to reconcile net loss to cash used in operating activities:
               
Depreciation and amortization
   
383,523
     
614,390
 
Gain on sale of ICD
   
(2,000,000
)
   
 
Stock-based compensation
   
429,986
     
1,897,033
 
Amortization of discounts on notes payable
   
552,639
     
2,584
 
Amortization of debt issue costs
   
346,995
     
 
Amortization of beneficial conversion feature
   
180,639
     
 
Change in fair value of warrant liability
   
9,628,460
     
 
Non-cash legal settlement expense
   
1,230,953
     
 
Non-cash professional services
   
35,000
     
 
Securities received for services
   
(290,331
)
   
(1,713,361)
 
Loss on disposal of equipment and fixtures
   
294,378
     
 
Provision for bad debt
   
58,074
     
156,300
 
Unrealized loss on securities owned
   
480,292
     
8,105,058
 
Amortization of intangible assets
   
     
349,607
 
Impairment of goodwill
   
     
2,208,735
 
Impairment of intangible assets
   
     
392,781
 
Changes in operating assets and liabilities:
               
Securities owned
   
(132,567
)
   
(1,793,662
)
Restricted cash
   
58,411
     
(441,875
)
Due from clearing broker
   
(360,768
)
   
(5,102
Accounts receivable
   
(1,261,782
)
   
1,981,574
 
Prepaid expenses and other assets
   
172,601
     
216,664
 
Accounts payable
   
(80,174
)
   
(211,350
Commissions and bonus payable
   
738,270
     
(11,375,042
)
Accrued expenses
   
(2,436,032
)
   
(265,235
)
Due to clearing and other brokers
   
(18,845
)
   
6,368
 
Net cash used in operating activities
   
(11,045,550
)
   
(23,761,688
)
Cash flows from investing activities:
               
Purchase of equipment and fixtures
   
     
(202,398
)
Proceeds from sale of Panel
   
702,966
     
 
Proceeds from sale of ICD
   
2,000,000
     
 
Net cash provided by (used in) investing activities
   
2,702,966
     
(202,398
)
Cash flows from financing activities:
               
Proceeds from the issuance of Series D Convertible Preferred Stock, net of reinvestments of previous bridge financing and expenses
   
8,808,256
     
 
Proceeds from the exercise of stock options and warrants
   
     
436,225
 
Debt service principal payments
   
(520,774
)
   
(519,585
)
Issuance of bridge note
   
500,000
     
 
Proceeds from the issuance of convertible notes payable
   
625,000
     
 
Payments on convertible notes payable
   
(125,000
)
   
 
Proceeds from the issuance of unsecured promissory notes payable
   
300,000
     
 
Payments on unsecured promissory notes payable
   
(300,000
)
   
 
Net cash provided by (used in) financing activities
   
9,287,482
     
(83,260
Increase (decrease) in cash and cash equivalents
   
944,898
     
(24,047,446
)
Cash and cash equivalents at beginning of period
   
6,358,128
     
31,962,201
 
Cash and cash equivalents, assets held for sale
   
222,892
     
 
Cash and cash equivalents at end of period
 
$
7,525,918
   
$
7,914,755
 
Supplementary disclosure of cash flow information:
               
Cash paid during the period:
               
Interest
 
$
252,252
   
$
59,089
 
Income taxes
 
$
5,200
   
$
574,497
 
Supplementary non-cash information:
               
Stock received as part of sale of Panel
   
100,000
     
 
Conversion of note payable into common stock
   
     
200,000
 
Conversion of note payable and accrued interest into Series D Convertible Preferred Stock
   
1,060,717
     
 
Conversion of legal settlement into Series D Convertible Preferred Stock
   
296,027
         
Conversion of professional services into Series D Convertible Preferred Stock
   
35,000
         
Property acquired through capitalized leases
   
     
805,776
 
 
The accompanying notes are an integral part of these consolidated financial statements.
 
5

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)

1. Significant Accounting Policies

Basis of Presentation

The interim unaudited financial statements included herein for Merriman Curhan Ford Group, Inc. (formerly MCF Corporation), or the Company, have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission. In the opinion of management, the financial statements included in this report reflect all normal recurring adjustments that the Company considers necessary for the fair presentation of the results of operations for the interim periods covered and the financial position of the Company at the date of the interim statement of financial condition. Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with accounting principles generally accepted in the United States have been condensed or omitted pursuant to such rules and regulations. However, the Company believes that the disclosures are adequate to understand the information presented. The operating results for interim periods are not necessarily indicative of the operating results for the entire year. These financial statements should be read in conjunction with the Company’s 2008 audited consolidated financial statements and notes thereto included in the Company’s Annual Report on Form 10-K and on Form 10-K/A for the year ended December 31, 2008.

Under Accounting Standards Codification Topic (“ASC”) 855, “Subsequent Events”, the Company has evaluated all subsequent events through November 16, 2009, the date these consolidated financial statements were filed with the SEC.

Securities Owned

“Securities owned” and “Securities sold, but not yet purchased” in the consolidated statements of financial condition consist of financial instruments carried at fair value with related unrealized gains or losses recognized in the consolidated statement of operations.   The securities owned are classified into “Marketable”, “Non-marketable” and “Other”.  Marketable securities are those that can readily be sold, either through a stock exchange or through a direct sales arrangement.  Non-marketable securities are typically securities restricted under Rule 144A or have some restriction on their sale whether or not a buyer is identified.  Other securities consist of investments accounted for under the equity method.

Fair Value of Financial Instruments

Substantially all of the Company's financial instruments are recorded at fair value or contract amounts that approximate fair value. Securities owned and securities sold, not yet purchased are stated at fair value, with any related changes in unrealized appreciation or depreciation reflected in principal transactions in the consolidated statements of operations.  The carrying amounts of the Company’s financial instruments, which include cash and cash equivalents, restricted cash, securities owned, due from clearing broker, accounts receivable, assets held for sale, accounts payable, commissions and bonus payable, accrued expenses, due to clearing and other brokers, liabilities held for sale and note payable approximate their fair values due to their short term nature and, where applicable, market interest rates.

The Company issued debt and equity instruments in the three months ended September 30, 2009, including Convertible Preferred Stock Series D on September 9, 2009.  At September 30, 2009, only the Convertible Preferred Stock Series D and warrants for the purchase of the Company’s common stock remain outstanding.  Please refer to Notes 3 and 4 for discussion and disclosure of the instruments.

Fair Value Measurement—Definition and Hierarchy

The Company adopted the provisions of ASC 820, “Fair Value Measurement” and Disclosures for our financial assets and liabilities. Under ASC 820, fair value is defined as the price that would be received to sell an asset or paid to transfer a liability (i.e.,  the “exit price”) in an orderly transaction between market participants at the measurement date.

Where available, fair value is based on observable market prices or parameters or derived from such prices or parameters. Where observable prices or inputs are not available, valuation models are applied. These valuation techniques involve some level of management estimation and judgment, the degree of which is dependent on the price transparency for the instruments or market and the instruments’ complexity. Assets and liabilities recorded at fair value in the consolidated statement of financial condition are categorized based upon the level of judgment associated with the inputs used to measure their fair value. Hierarchical levels, defined by ASC 820 and directly related to the amount of subjectivity associated with the inputs to fair valuation of these assets and liabilities, are as follows:
 
6

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

Level 1 — Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date. The types of assets and liabilities carried at Level 1 fair value generally are G-7 government and agency securities, equities listed in active markets, investments in publicly traded mutual funds with quoted market prices and listed derivatives.

Level 2 — Inputs (other than quoted prices included in Level 1) are either directly or indirectly observable for the asset or liability through correlation with market data at the measurement date and for the duration of the instrument’s anticipated life. Fair valued assets that are generally included in this category are stock warrants for which there are market-based implied volatilities, unregistered common stock and thinly traded common stock.

Level 3 — Inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model. Generally, assets carried at fair value and included in this category include stock warrants for which market-based implied volatilities are not available.

In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes the level in the fair value hierarchy within which the fair value measurement falls in its entirety is determined based on the lowest level input that is significant to the fair value measurement in its entirety.

For further information on financial assets and liabilities that are measured at fair value on a recurring and nonrecurring basis, and a description of valuation techniques, see Note 6, Fair Value of Assets and Liabilities.

Investment Banking Revenue

Investment banking revenue includes underwriting and private placement agency fees earned through the Company’s participation in public offerings and private placements of equity and convertible debt securities and fees earned as financial advisor in mergers and acquisitions and similar transactions. Underwriting revenue is earned in securities offerings in which the Company acts as an underwriter and includes management fees, selling concessions and underwriting fees. Fee revenue relating to underwriting commitments is recorded when all significant items relating to the underwriting cycle have been completed and the amount of the underwriting revenue has been determined. This generally is the point at which all of the following have occurred: (i) the issuer’s registration statement has become effective with the SEC, or other offering documents are finalized, (ii) the Company has made a firm commitment for the purchase of the shares or debt from the issuer, and (iii) the Company has been informed of the exact number of shares or the principal amount of debt that it has been allotted.

Syndicate expenses related to securities offerings in which the Company acts as underwriter or agent are deferred until the related revenue is recognized or we determine that it is more likely than not that the securities offerings will not ultimately be completed. Underwriting revenue is presented net of related expenses. As co-manager for registered equity underwriting transactions, management must estimate the Company’s share of transaction related expenses incurred by the lead manager in order to recognize revenue. Transaction related expenses are deducted from the underwriting fee and therefore reduces the revenue that is recognized as co-manager. Such amounts are adjusted to reflect actual expenses in the period in which the Company receives the final settlement, typically 90 days following the closing of the transaction.

Merger and acquisition fees and other advisory service revenue are generally earned and recognized only upon successful completion of the engagement. Unreimbursed expenses associated with private placement and advisory transactions are recorded as expenses as incurred.

Commissions and Principal Transactions Revenue

Commissions revenue includes revenue resulting from executing trades in stock exchange-listed securities, over-the counter securities and other transactions as agent for the Company’s clients. Principal transactions consist of a portion of dealer spreads attributed to the Company’s securities trading activities as principal in NASDAQ-listed and other securities, and include transactions derived from activities as a market-maker. Additionally, principal transactions include gains and losses resulting from market price fluctuations that occur while holding positions in trading security inventory. Commissions revenue and related clearing expenses are recorded on a trade-date basis as security transactions occur. Principal transactions in regular-way trades are recorded on the trade date, as if they had settled. Profit and loss arising from all securities and commodities transactions entered into for the account and risk of the Company are recorded on a trade-date basis.
 
7

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

1. Significant Accounting Policies - Continued

Share-Based Compensation Expense

The Company measures and recognizes compensation expense based on estimated fair values for all share-based awards made to employees and directors, including stock options, non-vested stock, and participation in the Company’s employee stock purchase plan. The Company estimates fair value of share-based awards on the date of grant using the Black-Scholes option-pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as expense in the Company’s consolidated statements of operations over the requisite service periods. Share-based compensation expense recognized in the Company’s consolidated statement of operations includes compensation expense for share-based awards granted (i) prior to, but not yet vested as of December 31, 2005, based on the grant date fair value, and (ii) subsequent to December 31, 2005. Compensation expense for all share-based awards subsequent to December 31, 2005 is recognized using the straight-line single-option method. Because share-based compensation expense is based on awards that are ultimately expected to vest, share-based compensation expense has been reduced to account for estimated forfeitures. Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

To calculate stock-based compensation resulting from the issuance of options, restricted common stock, and warrants, the Company uses the Black-Scholes option pricing model, which is affected by the Company’s stock price as well as assumptions regarding a number of subjective variables. These variables include, but are not limited to the Company’s expected stock price volatility over the term of the awards, and actual and projected employee stock option exercise behaviors. No tax benefits were attributed to the share-based compensation expense because a valuation allowance was maintained for all net deferred tax assets.

Warrant Liabilities

Stock warrants issued to our investors and creditors are rights to purchase our common stock.  Such positions are considered illiquid and do not have readily determinable fair values, and therefore require significant management judgment or estimation. For the warrant liabilities, we use the Black-Scholes valuation methodology or similar techniques. They are classified within Level 3 of the fair value hierarchy. In accordance with ASC 820, assets measured at fair value on a recurring basis are categorized based upon the lowest level of significant input to the valuations.
 
Income Taxes

The Company uses the asset and liability method of accounting for income taxes. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. A valuation allowance is recorded to reduce deferred tax assets to an amount whose realization is more likely than not. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the consolidated statements of operations in the period that includes the enactment date.

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates, judgments and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses. Actual results could differ from those estimates.

 Segment Reporting

The Company has determined that it has only one operating and reportable segment, Merriman Curhan Ford & Co., for the purpose of making operating decisions and assessing performance, which comprised more than 90% of the Company’s consolidated total assets as of September 30, 2009 and consolidated total revenues for the three and nine month periods ended September 30, 2009.  In the fourth quarter of 2008, Merriman Curhan Ford Group, Inc. decided to liquidate the funds under management by MCF Asset Management, LLC, which was no longer considered by management as an operating and reportable segment.   In January 2009, the Company sold its primary research business, Panel Intelligence, LLC and has presented its results of operations as discontinued operations.
 
8

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

1. Significant Accounting Policies - Continued

New Accounting Pronouncements

On July 1, 2009, the Company adopted the FASB Accounting Standards Codification (“ASC”). The ASC does not alter current U.S. GAAP, but rather integrated existing accounting standards with other authoritative guidance. The ASC provides a single source of authoritative U.S. GAAP for nongovernmental entities and supersedes all other previously issued non-SEC accounting and reporting guidance. The adoption of the ASC did not have any effect on our results of operations or financial position. All prior references to U.S. GAAP have been revised to conform to the ASC. Updates to the ASC are issued in the form of Accounting Standards Updates (“ASU”).

In January 1, 2009, the Company adopted the revisions to U.S. GAAP accounting standards included in ASC 815, “Derivatives and Hedging”. ASC 815 applies to any freestanding financial instruments or embedded features that have the characteristics of a derivative and to any freestanding financial instruments that are potentially settled in an entity’s own common stock. As a result of adopting ASC 815, warrants to purchase shares of our common stock previously treated as equity pursuant to the derivative treatment exemption were no longer afforded equity treatment. The adoption of the revised guidance related to derivatives and hedging resulted in classification of certain warrants issued during the quarter in connection with financing activities as derivative liabilities with mark to market accounting. See Note 5 for additional information regarding the accounting for the warrant liabilities.

In April 2009, the Company adopted the revisions to U.S. GAAP accounting standards included in ASC  825, “Financial Instruments”, which requires public companies to include disclosures required for all financial instruments within the scope of ASC  825 in their interim financial statements. In addition, this guidance requires disclosure about the method and significant assumptions to estimate fair value of financial instruments and disclosure of changes in the methods or significant assumptions, if any, during the period. The adoption of the revised guidance related to financial statement disclosure only and did not have any effect on our results of operations or financial position.

Also in April 2009, the Company adopted the revisions to U.S. GAAP accounting standards included in ASC  820, which provides additional guidance in determining whether a market for a financial asset is not active and a transaction is not distressed for fair value measurement purposes. This guidance does not have a significant impact on the Company’s financial position, results of operations, or cash flows.

In May 2009, the Company adopted the revisions to U.S. GAAP accounting standards included in ASC  855, “Subsequent Events”, which establishes the accounting and disclosure of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It requires the disclosure of the date through which an entity has evaluated subsequent events and the basis for that date. This guidance did not have any impact on the Company’s financial position, results of operations, or cash flows.

In June 2009, the FASB issued SFAS No. 167, Amendments to FASB Interpretation No. 46(R) (SFAS 167), which has not yet been codified in the ASC. This guidance is a revision to pre-existing guidance pertaining to the consolidation and disclosures of variable interest entities. Specifically, it changes how a reporting entity determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a reporting entity is required to consolidate another entity is based on, among other things, the other entity’s purpose and design and the reporting entity’s ability to direct the activities of the other entity that most significantly impact the other entity’s economic performance. This guidance will require a reporting entity to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure due to that involvement. A reporting entity will be required to disclose how its involvement with a variable interest entity affects the reporting entity’s financial statements. This guidance will be effective at the start of a reporting entity’s first fiscal year beginning after November 15, 2009. Early application is not permitted. The Company is currently evaluating the impact on our financial statements, if any, upon adoption.
 
9

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)
 
2. Going Concern

These consolidated financial statements have been prepared assuming that the Company will continue as a going concern for the foreseeable future and will be able to realize its assets and discharge its liabilities in the normal course of operations.

During the nine months ended September 30, 2009, the Company incurred a net loss of $19,055,000 and used $11,046,000 in net cash from operating activities, of which $4,300,000 was for the settlement of certain legal cases against the Company.  At September 30, 2009, the Company had cash and cash equivalents of $7,526,000, marketable securities of $4,629,000 and receivables from clearing broker of $2,113,000.  The Company had liabilities of $34,877,000, of which $26,522,000 represent warrant liabilities which will not be settled in cash. The Company’s ability to generate profits is highly dependent on stock market trading volumes and the general economic environment. As a result, the ability of the Company to meet its forward obligations and the ability to continue as a going concern may be in question.

In 2008, the Company incurred a net loss of over $30 million and used approximately $25 million in cash.

The Company has largely completed implementing a plan to increase its operating flexibility and extend its cash reserves. The plan primarily consisted of four steps which are more fully described below:

 
1.
Reduce operating costs (on-going)
 
 
2.
Shed non-essential operations (mostly completed)
     
  3.
Negotiate a settlement of pending litigations (completed for key cases)
     
  4. Raise additional capital (completed)
 
During 2008 and early 2009, the Company implemented significant expense control and cost reduction programs focused on reducing cash losses and increasing operational flexibility eliminating more than $10 million in annual operating expenses. The primary contributor to these savings has been the elimination of more than 50% of the Company’s workforce, as well as salary reductions. The Company believes that it has been able to execute these reductions with limited impact to its ability to generate and execute new business in the current market environment. With these measures largely complete, the Company believes that it has increased its ability to meet its obligations during the remainder of 2009 and beyond.

As a part of the four-step plan mentioned above, in January of 2009, the Company shed non-essential operations or those requiring substantial cash infusions.  First, the Company sold Panel Intelligence, LLC on January 30, 2009. This subsidiary required a cash injection of $1,131,000 during 2008 and was projected to reach breakeven only in late 2009. Also in January 2009, the Company sold its operations known as Institutional Cash Distributors (or “ICD”) to a group of its employees. While this business was profitable, management structured a transaction that substantially increased the near-term flow of capital. The Company expects to finalize the sale of ICD when the buyers obtain their broker-dealer license, although all the sales proceeds have been received.

Finally, the Company is in the process of shutting down MCF Asset Management, another subsidiary in which the Company had invested considerable resources during 2008. The result of these actions has been to reduce operating losses and increase available cash, which will also strengthen its capital position.

 The Company settled seven of the civil litigations resulting from the alleged fraud by its former customer William Del Biaggio III and its terminated employee Scott Cacchione.  The total amount of the claims made in the cases amounted to approximately $43.5 million.  These claims were settled for $4.3 million, the issuance of 5-year warrants to buy 1,538,461 shares of the Company’s common stock at $0.65 each, and the assignment of rights to collect certain insurance payments from the Company’s insurers.  The Company substantially reduced its potential liability in these legal proceedings and the expenses required to fight the allegations. In addition, it has also freed up valuable management resources needed to face challenging market and economic conditions.  

10


MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

2. Going Concern — continued

The Company completed a strategic transaction in which it issued 23,720,916 shares Series D Convertible Preferred Stock and the same number of warrants to purchase the Company’s common stock.  The strategic transaction resulted in the infusion of $10.2 million of capital prior to the payment of the settlement amount of $4.3 million.  On May 29, June 30, and July 31, 2009, the Company issued convertible notes, promissory notes and a secured promissory note, respectively.  The principal and interest of all prior financings were either redeemed or reinvested in the Series D Convertible Preferred Stock.  At September 30, 2009, the Company had no debt outstanding.  (See Notes 3 and 4.)

The Company’s ability to meet its going concern obligations is highly dependent on market and economic conditions.  Even after executing the majority of its four-step plan, it will not be capable of sustaining losses of the same magnitude as those incurred in 2008.  However, it is worth noting that 2008 was an unprecedented year both in terms of stock market volatility and general economic challenges. Furthermore, the large number of civil litigations and resulting SEC investigation was a massive drain on corporate resources. The Company believes that its reduced cost structure, lower legal expenses and shedding of non-core business have increased its operating runway. However, if operating conditions worsen or if the company receives adverse judgments in its pending litigations, it may not have the resources to meet its financial obligations as a going concern.

These financial statements do not reflect adjustments in the carrying values of assets and liabilities, the reported revenues and expenses, and the balance sheet classifications used that would be necessary if the going concern assumption were not appropriate.  These adjustments could be material.

As a result of the completion of a major part of our plan and the issuance of the Series D Convertible Preferred Stock, management will reassess the appropriateness of this going concern disclosure at fiscal year end.  There is no assurance whether or not going concern disclosures will be required when assessed.

3. Issuance of Debt

The Company entered into a series of strategic transactions beginning in May 2009 which culminated in the issuance of Series D Convertible Preferred Stock on September 8, 2009.  The May 2009 transaction is described in the Company’s Form 10-Q for the period ending June 30, 2009 and below.

Convertible Notes

On May 29, 2009, the Company sold and issued $525,000 in principal amount of Secured Convertible Promissory Notes (each a “Note,” and collectively, the “Notes”).  On June 1, 2009, the Company issued an additional $100,000 of Notes. The investor group included eight individuals, comprised of certain officers and employees of the Company as well as an outside investor.  The Notes were issued in a private placement exempt from registration requirements.  There were no underwriters, underwriting discounts or commissions involved in the transactions.  The Notes carried an interest rate of 11% per annum, payable in cash quarterly, and were due upon the earlier of two years from issuance or a change in control of the Company.  As part of this transaction, the Company entered into a Security Agreement with the investors in the Notes by which the Company pledged all assets of the Company as security for the Notes.  If the Company were to liquidate, the investors in the Notes would have to be repaid before any other obligations of the Company, which would have reduced the amount of assets available for distribution to the Company’s Stockholders.

The Notes were convertible into common stock of the Company at a price of $0.50 per share and came with warrants (the “Warrants”) to purchase additional shares of common stock of the Company at $0.50 per share for a number of shares of common stock equal to 75% of the principal amount of the Notes purchased, divided by $0.50.  The Notes would have been convertible beginning six months after issuance while the Warrants are exercisable at any time.

11

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

3. Issuance of Debt — continued

Both the Notes and the Warrants have anti-dilution features so that if the Company pays dividends, splits (forward or reverse) its common shares, or adjusts its shares outstanding due to a combination, the conversion and exercises prices, respectively, would also adjust proportionally.  The Notes had a two-year maturity and the warrants will expire 10 years from the date of the transaction.  

The total proceeds of $625,000 raised in the transaction described above were accounted for under generally accepted accounting principles, ASC 470, “Debt”. The Company has accounted for this transaction as the issuance of convertible debt and a detachable stock warrant.  The total proceeds of $625,000 have been allocated to these individual instruments based on their relative fair value as determined by management.

The Company estimated the fair value of its convertible debt at the time of issuance.  As a result, the Notes and the Warrants were carried at fair values of $419,000 and $206,000, respectively, at inception.  The Notes had an embedded beneficial conversion option and the $419,000 value could be bifurcated into a host valued at $239,000 and a beneficial conversion option valued at $180,000.  The value of the Warrant was recorded as an increase to additional paid-in capital. 

The Notes were converted into Series D Convertible Preferred Stock (see Note 4).  At September 30, 2009, no Notes remain outstanding.

Unsecured Promissory Notes

           On June 30, 2009, the Company issued $300,000 in unsecured promissory notes to three of its employees at an interest rate of 3.25%.  The maturity date of the notes was October 31, 2009, although they were repayable earlier on the occurrence of certain events. These notes were paid in full in cash.  At September 30, 2009, no unsecured promissory notes remain outstanding.

Bridge Note

On July 31, 2009, the Company issued Mr. Ronald L. Chez, the lead investor in the Series D Transaction, a Secured Promissory Note in the amount of $500,000 at an annual interest rate of 9.00%.  The term of the Note was three years, redeemable by Mr. Chez upon presentation of written demand.  The Note was guaranteed personally by Messrs. Jonathan Merriman (CEO) and Peter Coleman (CFO).  The Company issued 10-year warrants to purchase 1,162,791 shares of the Company’s common stock at an exercise price of $0.65 per share to Mr. Chez in connection with this transaction. (See Note 5 regarding the accounting for the warrants.)  Each of the two members of management was compensated for the guarantee with identical warrants to purchase 581,395 shares of the Company’s common stock.

As discussed above, the Company issued warrants to purchase 2,325,581 shares of common stock in conjunction with the issuance of the Bridge Note. These warrants were assessed in accordance with ASC 815 “Derivatives and Hedging” and it was determined that the full ratchet provision included in the warrant agreement triggered derivative liability accounting. As a result, in accordance with the accounting guidance, the warrants were recorded at fair value and will be marked to market on each reporting date with the change in fair value recorded in the Consolidated Statements of Operations. Additionally, the proceeds of the transaction will be allocated between the Bridge Note and the warrants using the residual method in which proceeds are first allocated to the warrant liability and any remaining value is then allocated to the Bridge Note.  The warrants were valued using the Black-Scholes fair value model. The grant date fair value of the warrants issued in connection with the Bridge Note to the note holder and the members of management was $347,000 and $347,000, respectively. The Company allocated all of the proceeds to the warrant liability and recorded a full debt discount to be applied against the note using the residual method. The fair value of the warrants issued to members of management in compensation for the note guarantee was recorded as a debt issuance cost. Both the debt discount and the debt issuance cost was to be amortized to interest expense over the term of the note. (See Note 5 below for more information regarding the warrant liability.)
 
12

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)
 
3. Issuance of Debt — continued

In September 2009, the Bridge Note was converted into Series D Convertible Preferred Stock. At the date of conversion, there was $503,000 of principal and interest outstanding on the Bridge note which was converted into1,171,000 shares of Series D Convertible Preferred Stock. Additionally, as of the conversion date, the entire debt discount and related debt issuance costs were expensed and no outstanding balance remained at September 30, 2009.

4.  Series D Convertible Preferred Stock

On September 8, 2009, the Company issued 23,720,916 shares of Series D Convertible Preferred Stock along with 5-year warrants to purchase 23,720,916 shares of the Company’s common stock with an exercise price of $0.65 per share.  The investor group constituted of 56 individuals and entities including certain officers, directors and employees of the Company, as well as outside investors.  All or portions of the principal and accrued interest of the May 29, 2009 Convertible Notes, the June 30 Unsecured Promissory Note and the July 31 Bridge Note were converted into the Series D Convertible Preferred Stock shares.  None of these debt instruments remain outstanding after September 8, 2009.  The warrants issued in conjunction with the May 29 Convertible Notes and with the July 31 Bridge Note remain outstanding. (See Note 5 regarding the accounting for the warrants issued.)

The Series D Convertible Preferred Stock was issued in a private placement exempt from registration requirements pursuant to Regulation D of the Securities Act of 1933, as amended.  Cash consideration was deposited into escrow on or around August 27, 2009.  Each share of Series D Convertible Preferred Stock is convertible into one share of Common Stock of the Company.  The Series D Convertible Preferred Stock carries a dividend rate of 6% per annum, payable in cash monthly.

Both the Series D Convertible Preferred Stock and the warrants issued in connection with the Series D Convertible Preferred Stock have anti-dilution features including a full ratchet provision so that if the Company pays dividends, splits its common shares forward or reverse, or adjusts its shares outstanding due to a combination, the conversion and exercises prices would also adjust proportionally.  The warrants will expire 5 years from the date of the transaction.  Holders of the Series D Convertible Preferred Stock may convert them into shares of the Company’s common stock at any time in amounts no less than $100,000 unless all of the shares held by the holder are for a lesser amount.  The Series D Convertible Preferred Stock will automatically convert at the discretion of the Company upon 10-day notice given when the average closing price of the Company’s common stock over a 30-day period is at or above $3.00 per share and when the average trading volume for the immediately prior four-week period is 30,000 shares or more, provided that the shares have been effectively registered with the Securities and Exchange Commission or all of the Series D Convertible Preferred Stock may be sold under Rule 144 of the 1933 Exchange Act.

The total proceeds of $10.2 million raised in the transaction described above are accounted for under generally accepted accounting principles, primarily ASC 470, “Debt”. The Company has accounted for this transaction as the issuance of convertible preferred stock and a detachable stock warrant.  The total proceeds of $10.2 million have been allocated to these individual instruments based on the residual method.

As discussed above, the Company issued warrants to purchase 23,720,916 shares of common stock in conjunction with the sale of the Series D Convertible Preferred Stock. These warrants were assessed in accordance with ASC 815 “Derivatives and Hedging” and it was determined that the full ratchet provision included in the warrant agreement triggered derivative liability accounting. As a result, in accordance with the accounting guidance, the warrants were recorded at fair value and will be marked to market on each reporting date with the change in fair value recorded in the Consolidated Statements of Operations. Additionally, the proceeds of the transaction were allocated between the Series D Convertible Preferred Stock and the warrants using the residual method in which proceeds are first allocated to the warrant liability and any remaining value is then allocated to the preferred stock.  The warrants were valued using the Black-Scholes fair value model. The grant date fair value of the warrants issued with the Series D Convertible Preferred Stock was $15,264,000. As the fair value of the warrants exceeds the proceeds received, the Company allocated all of the proceeds, with the exception of the par value of the Series D Convertible Preferred Stock, to the warrant liability. The additional value needed to record the warrants at fair value was recorded as a charge to additional paid-in capital (APIC) and shown as deemed dividend on the Consolidated Statements of Operations. (See Note 5 below for more information regarding the warrant liability.)

The Series D Convertible Preferred Stock issued by the Company pays dividends to the holders at an annual rate of 6%, payable monthly in arrears.  As of September 30, 2009, the Company recorded a cash dividends payable of $39,000 which was included in accrued liabilities as of September 30, 2009.

13

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)


5.  Accounting for Warrant Liabilities

The accounting for the liabilities arising out the issuance of the Company’s warrants is discussed below under the following sections:

 
Overview of Warrant Liability accounting
     
 
Series D Convertible Preferred Stock Warrant Liabilities
 
 
 
 
July 31, 2009 Bridge Note Warrant Liabilities
 
 
 
 
Settlement Warrant Liabilities
 
 
 
 
Summary of effects of warrants on the Consolidated Statements of Operations

Overview of Warrant Liability Accounting
 
Under ASC 815, “Derivatives and Hedging”, instruments which do not have fixed settlement provisions are deemed to be derivative instruments. The exercise price of the detachable warrants issued with the Company’s Series D Convertible Preferred Stock is not fixed because the exercise prices may be lowered if the Company issues securities at prices lower than the price on which the exercise price for the warrant was based. This is also the case with the warrants issued in connection with the $500,000 Bridge Note issued on July 31, 2009 and the warrants issued to the litigants in the settlement.  The Company included the reset provisions in order to protect the warrant holders from potential dilution associated with future financings. In accordance with ASC 815, the warrants were recognized as a derivative instrument and have been characterized as warrant liabilities at their fair value. ASC 815 requires that the fair value of these liabilities be re-measured at the end of every reporting period, with the change in value reported in the Consolidated Statements of Operations.
 
Series D Convertible Preferred Stock Warrant Liabilities
 
The portion of warrant liabilities related to outstanding warrants issued in connection with the Series D Convertible Preferred Stock was valued using the Black-Scholes option valuation model.
 
Inception Date / Measurement Date
 
Sept 8,
2009
   
Sept 30,
2009
 
Number of warrants
    23,720,916       23,720,916  
Fair value – warrant liability
  $ 15,264,330     $ 22,850,737  
Change in value since inception
          $ 7,586,407  

As of September 30, 2009, the Series D Convertible Preferred Stock warrant liability had a fair value of $22,851,000. The increase in value of $7,586,000 within the three months ended September 30, 2009 is included in the Consolidated Statements of Operations, in accordance with ASC 815.

14

 
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

5.  Accounting for Warrant Liabilities — continued

Bridge Note Warrant Liabilities
 
The portion of warrant liabilities related to outstanding warrants issued in connection with the July 31, 2009 bridge note was valued using the Black-Scholes option valuation model.
 
Inception Date / Measurement Date
 
July 31, 2009
   
Sept 30, 2009
 
Number of warrants
    2,325,581       2,325,581  
Fair value – warrant liability
  $ 693,994     $ 2,240,261  
Change in value since inception
          $ 1,546,267  

As of September 30, 2009, the Bridge Note warrant liability had a fair value of $2,240,000. The increase in value of $1,546,000 within the three months ended September 30, 2009 is included in the Consolidated Statements of Operations, in accordance with ASC 815.

Settlement Warrant Liabilities
 
As discussed in Note 13, during the 3 months ended September 30, 2009, the Company issued 5-year warrants to purchase 1,538,461 shares of common stock at $0.65 in connection with a legal settlement. The warrants contained the same anti-dilution provision as the Series D Convertible Preferred Stock warrants and the Bridge Note warrants.  In accordance with ASC 815 “Derivatives and Hedging” the Company recorded the fair value of the settlement warrants as a warrant liability on the date of grant and will mark the warrants to market on each reporting date with the change in value recorded in the Consolidated Statements of Operations.
 
The portion of warrant liabilities related to outstanding warrants issued in connection with the settlement of litigation was valued using the Black-Scholes option valuation model.
 
Inception Date / Measurement Date
 
Sept 8, 2009
   
Sept 30, 2009
 
Number of warrants
    1,538,461       1,538,461  
Fair value – warrant liability
  $ 934,926     $ 1,430,712  
Change in value since inception
          $ 495,786  

15

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

5.  Accounting for Warrant Liabilities — continued

As of September 30, 2009, the total settlement warrant liability had a fair value of $1,431,000. The increase in value of $496,000 within the three months ended September 30, 2009 is included in the Consolidated Statements of Operations, in accordance with ASC 815.

Summary of Effects of Warrants on the Consolidated Statements of Operations

   
Warrant
Liabilities
   
Operating Expense
   
Non-Operating Expense
 
Series D Convertible Preferred Stock warrant liability
  $ 15,264,330    
   
 
Bridge note warrant liability
    693,995    
   
 
Settlement warrant liability
    934,926       934,926    
 
Change in value - Series D Convertible Preferred Stock warrant liability
    7,586,407    
      7,586,407  
Change in value - Bridge note warrant liability
    1,546,267    
      1,546,267  
Change in value - Settlement warrant liability
    495,786    
      495,786  
Net effect of warrant liabilities
  $ 26,521,711     $ 934,926     $ 9,628,460  
 
6. Fair Value of Assets and Liabilities

Fair value is defined as the price at which an asset would sell for or an amount paid to transfer a liability in an orderly transaction between market participants at the measurement date (the exit price). Where available, fair value is based on observable market prices or parameters or derived from such prices or parameters. Where observable prices or parameters are not available, valuation models are applied. These valuation techniques involve some level of management estimation and judgment, the degree of which is dependent on the price transparency for the instruments or the market on which they are primarily traded, and the instruments’ complexity. Assets and liabilities recorded at fair value in the Consolidated Statements of Financial Condition are categorized based upon the level of judgment associated with the inputs used to measure their fair value.  A description of the valuation techniques applied to the Company’s major categories of assets and liabilities measured at fair value on a recurring basis follows.

Securities Owned

Corporate Equities

Corporate equities are comprised primarily of exchange-traded equity securities that the Company takes selective proprietary positions based on expectations of future market movements and conditions. They are generally valued based on quoted prices from the exchange. To the extent these securities are actively traded, valuation adjustments are not applied and they are categorized in Level 1 of the fair value hierarchy.
 
16

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

6. Fair Value of Assets and Liabilities — continued

Stock Warrants

Stock warrants provide their holders with the right to purchase equity in a publicly traded company.  Such positions are considered illiquid and do not have readily determinable fair values, and therefore require significant management judgment or estimation. For these securities, the Company uses the Black-Scholes valuation methodology or similar techniques. They are classified within Level 3 of the fair value hierarchy.

Underwriters’ Purchase Options

Underwriters’ purchase options represent the right to purchase securities of publicly-traded companies for which the Company acted as an underwriter to account for any overallotment of these securities in a public offering.  Such positions are considered illiquid and do not have readily determinable fair values, and therefore require significant management judgment or estimation. For these securities, the Company uses the Black-Scholes valuation methodology. They are classified within Level 3 of the fair value hierarchy.

Preferred Stock

Preferred stock represents preferred equity in publicly traded companies.  The preferred stock owned by the Company is convertible at the Company’s discretion. For these securities, the Company uses the exchange-quoted price of the common stock equivalents to value the securities. They are classified within Level 1 of the fair value hierarchy.

Securities Sold, Not Yet Purchased

Securities sold, not yet purchased are comprised primarily of exchange-traded equity securities that the Company sold short based on expectations of future market movements and conditions. They are generally valued based on quoted prices from the exchange. To the extent these securities are actively traded, valuation adjustments are not applied and they are categorized in Level 1 of the fair value hierarchy.

Securities Issued

Warrant Liabilities

Stock warrants issued to the Company’s investors and creditors are rights to purchase equity in the Company.  Such positions are considered illiquid and do not have readily determinable fair values, and therefore require significant management judgment or estimation. For the warrant liabilities, the Company uses the Black-Scholes valuation methodology or similar techniques. They are classified within Level 3 of the fair value hierarchy. In accordance with ASC 820 “Fair Value Measurements and Disclosures”, assets measured at fair value on a recurring basis are categorized in the table below based upon the lowest level of significant input to the valuations.
 
17

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

6. Fair Value of Assets and Liabilities — continued

Summary

 
Fair Value at September 30, 2009
 
Level 1
 
Level 2
 
Level 3
 
Total
 
Assets:
                       
Securities owned:
                       
  Corporate equities
 
$
2,955,112
   
$
   
$
   
$
2,955,112
 
  Stock warrants
   
     
     
1,956,455
     
1,956,455
 
  Preferred stock
   
1,692
     
     
     
1,692
 
Total securities owned
 
$
2,956,804
   
$
   
$
1,956,455
   
$
4,913,259
 
                                 
Liabilities:
                               
 Warrant liabilities
   
     
     
26,521,711
     
26,521,711
 
 Securities sold, not yet purchased
 
$
838,199
   
$
   
$
   
$
838,199
 
Total fair value liabilities
 
$
838,199
   
$
   
$
26,521,711
   
$
27,359,910
 
 
 
Fair Value at December 31, 2008
 
Level 1
 
Level 2
 
Level 3
 
Total
 
Assets:
                               
Securities owned:
                               
  Corporate equities
 
$
3,353,784
   
$
650
   
$
695
   
$
3,355,129
 
  Stock warrants
   
     
     
1,605,451
     
1,605,451
 
  Underwriters’ purchase option
   
     
     
27,995
     
27,995
 
  Preferred stock
   
63
     
     
     
63
 
Total securities owned
 
$
3,353,847
   
$
650
   
$
1,634,141
   
$
4,988,638
 
                                 
Liabilities:
                               
 Warrant liabilities
   
     
     
     
 
 Securities sold, not yet purchased
 
$
903,217
   
$
   
$
   
$
903,217
 
Total fair value liabilities
 
$
903,217
   
$
   
$
   
$
903,217
 

18

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

6. Fair Value of Assets and Liabilities — continued

The following summarizes the change in carrying values associated with Level 3 financial instruments for the nine months ended September 30, 2009:

   
Corporate
 Equities
   
Stock
 Warrants
   
Underwriters’
 Purchase Option
   
Total
 
Assets:
                               
Balance at December 31, 2008
 
$
695
   
$
1,605,451
   
$
27,995
   
$
1,634,141
 
Purchases, issuances and settlements
   
50,998
     
254,298
     
     
305,296
 
Net transfers in / (out)
   
(51,693
)
   
(108,900
)
   
     
(160,593
)
Gains / (losses)
                               
Realized
   
     
(79,093
)
   
(91,058
)
   
(170,151
Unrealized
   
     
284,699
     
63,063
     
347,762
 
Balance at September 30, 2009
 
$
   
$
1,956,455
   
$
   
$
1,956,455
 
                                 
Liabilities:
                               
Balance at December 31, 2008
 
$
   
$
   
$
   
$
 
 Value at issuance
   
     
16,893,251
     
     
16,893,251
 
 Change in value
   
     
9,628,460
     
     
9,628,460
 
Balance at September 30, 2009
 
$
   
$
26,521,711
   
$
   
$
26,521,711
 

The amounts of unrealized losses for the three months ended September 30, 2009 included in the table above are all attributable to those assets held as of September 30, 2009. Net gains and losses (both realized and unrealized) for Level 3 financial assets (securities owned by the Company) are a component of “Principal transactions” in the Consolidated Statements of Operations.  Changes in value of the warrant liabilities (warrants issued by the Company) constitute “Change in fair value of warrant liability” in the Consolidated Statements of Operations.

7. Share-Based Compensation Expense

Stock Options and Warrants

 As of September 30, 2009, there were 7,091,430 shares authorized for issuance under the Option Plans, and 612,858 shares authorized for issuance outside of the Option Plans. As of September 30, 2009, 282,231 shares were available for future option grants under the Option Plans. There were no shares available for future option grants outside of the Option Plans. Compensation expense for stock options during the three months and nine months ended September 30, 2009 was $119,000 and $329,000, respectively. Compensation expense for stock options during the three months and nine months ended September 30, 2008 was $421,000 and $1,204,000, respectively.

The following table is a summary of the Company’s stock option activity for the nine months ended September 30, 2009:
 
   
Options
Outstanding
   
Weighted
Average
Exercise Price
 
Balance as of December 31, 2008
   
1,167,117
   
$
5.85
 
Granted
   
4,925,709
     
0.53
 
Exercised
   
-
     
-
 
Canceled
   
(789,681
)
   
(3.32
)
Balance as of September 30, 2009
   
5,303,145
   
$
1.28
 
Exercisable as of September 30, 2009
   
547,300
   
$
6.02
 

As of September 30, 2009, there were 18,333 warrants outstanding issued as compensation, issued with a 5-year term and an exercise price of $0.65 per share.

19

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

 7. Share Based Compensation Expense (continued)

The following table summarizes information with respect to stock options vested and outstanding at September 30, 2009:
 
     
Options Outstanding
   
Vested Options
 
Range of Exercise Price
   
Number
   
Weighted
Average
Remaining
Contractual
Life (Years)
   
Weighted
Average
Exercise
Price
   
Aggregate
Intrinsic
Value
   
Number
   
Weighted
Average
Exercise
Price
   
Aggregate
Intrinsic
Value
 
$ 0.00 - $  1.00      
3,930,279
     
9.60
   
$
0.42
   
$
4,229,373
     
99,355
   
$
0.43
   
$
106,022
 
$ 1.01 - $  3.50      
894,034
     
8.17
   
$
1.57
     
     
223,180
     
2.58
     
 
$ 3.51 - $  7.00      
352,133
     
7.97
   
$
4.29
     
     
103,813
     
4.86
     
 
$ 7.01 - $14.00      
100,551
     
4.94
   
$
9.70
     
     
94,804
     
9.82
     
 
$ 14.01 - $28.00      
1,147
     
1.25
   
$
15.34
     
     
1,147
     
15.34
     
 
$ 28.01 - $49.00      
25,001
     
0.41
   
$
49.00
     
     
25,001
     
49.00
     
 
         
5,303,145
     
9.11
   
$
1.28
   
$
4,229,373
     
547,300
   
$
6.02
   
$
106,022
 

As of September 30, 2009, total unrecognized compensation expense related to unvested stock options was $1,556,000. This amount is expected to be recognized as expense over a weighted-average period of 3.26 years.

The weighted average fair value of each stock option granted for the three months and nine months ended September 30, 2009 was $0.79 and $0.34, respectively. The weighted average fair value of each stock option granted for the three months and nine months ended September 30, 2008 was $0.64 and $2.19, respectively. The fair value of each option award is estimated on the date of grant using the Black-Scholes stock option pricing model, with the following assumptions for the nine months ended September 30, 2009 and 2008:
 
   
Nine Months Ended
September 30,
 
   
2009
   
2008
 
Expected volatility
   
117.67
%
   
69.54
%
Expected life (years)
   
2.35
     
6.30
 
Risk-free interest rate
   
1.17
%
   
3.11
%
Expected dividend yield
   
0
%
   
0
%

20

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

 7. Share Based Compensation Expense (continued)

Non-Vested Stock

At the date of grant, the recipients of non-vested stock have most of the rights of a stockholder other than voting rights, subject to certain restrictions on transferability and a risk of forfeiture. Non-vested shares typically vest over a two to four year period beginning on the date of grant. The fair value of non-vested stock is equal to the market value of the shares on the date of grant. The Company recognizes the compensation expense for non-vested stock on a straight-line basis over the requisite service period. Compensation expense for non-vested stock during the three months and nine months ended September 30, 2009 was $30,000 and $80,000 respectively. Compensation expense for non-vested stock during the same periods in 2008 was $160,000 and $693,000, respectively.

The following table is a summary of the Company's non-vested stock activity for the nine months ended September 30, 2009:

   
Non-Vested
Stock
Outstanding
   
Weighted
Average
Grant Date
Fair Value
   
Intrinsic
Value at
September 30, 2009
 
Balance as of December 31, 2008
   
48,779
   
$
9.84
         
Granted
   
4,000
     
1.50
         
Vested
   
(11,979
)
   
(5.30
)
       
Canceled
   
     
         
Balance as of September 30, 2009
   
40,800
   
$
10.35
   
$
422,297
 

  The weighted average fair value of the non-vested stock granted under the Company's stock option plans for the three months and nine months ended September 30, 2009 was $1.50 and $1.50 per share, respectively. The weighted average fair value of the non-vested stock granted under the Company's stock option plans for the same periods in 2008 was $1.27 and $2.84 per share, respectively. The fair value of the non-vested stock award is estimated on the date of grant using the intrinsic value method.

As of September 30, 2009, total unrecognized compensation expense related to non-vested stock was $90,000. This expense is expected to be recognized over a weighted-average period of 0.54 year.

Warrants Issued as Compensation

The Company issued warrants to purchase 25,000 shares of the Company’s common stock at $0.65 to the Chairman of the Strategic Advisory Committee, a committee of the Board of Directors, as compensation for serving in that capacity.  The expense related to the warrants for the three months and nine months ended September 30, 2009 was $21,000 and $21,000, respectively.

 8. Income Taxes

At the end of each interim reporting period, the Company calculates an effective tax rate based on the Company’s estimate of the tax provision (benefit) that will be provided for the full year, stated as a percentage of estimated annual pre-tax income (loss). The tax provision (benefit) for the interim period is determined using this estimated annual effective tax rate. For the three months and nine months ended September 30, 2009, the Company recorded a $235,000 and $230,000 income tax benefit, respectively. This relates primarily to a state tax benefit recorded during the quarter upon filing of the Company’s returns.  For the three months and nine months ended September 30, 2008, the Company recorded an income tax expense of $198,000 and a benefit of $1,641,000, respectively.  The benefit for the nine months ended September 30, 2008 is mainly attributable to the release of the FIN 48 liability due to the approval of an accounting method change for federal tax purposes.

21

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

 8. Income Taxes— continued

Historically and currently, the Company has recorded a valuation allowance on the deferred tax assets, the significant component of which relates to net operating loss tax carryforwards. Management continually evaluates the realizability of its deferred tax assets based upon negative and positive evidence available. Based on the evidence available at this time, the Company continues to conclude that it is not “more likely than not” that it will be able to realize the benefit of its deferred tax assets in the future.

The Company does not have any material accrued interest or penalties associated with any unrecognized tax benefits. The Company’s policy is to account for interest, if any, as interest expense and penalties as income tax expense.

The Company’s tax years 2006-2008 will remain open for three years for examination by the Internal Revenue Service from the date the federal corporation tax returns were filed. The Company’s tax years 2004-2008 will remain open for three to four years for examination by state tax authorities from the date the state corporation tax returns were filed. Net operating losses deducted are subject to review and adjustment for three to four years after the net operating losses are deducted on the U.S. and state returns filed.

The company believes that an ownership change within the meaning of Internal Revenue Code Section 382 may have occurred upon the issuance of Series D Convertible Preferred Stock on September 8, 2009.  If this is in fact the case, the usage of Net Operating Losses originating prior to this date will be subject to annual limitation.  The company intends to complete its analysis of this issue in the fourth quarter.

9. Discontinued Operations

On April 17, 2007, the Company acquired 100 percent of the outstanding common shares of MedPanel Corp. which was subsequently renamed Panel Intelligence LLC (“Panel”) and made into a subsidiary of the Merriman Curhan Ford Group, Inc. The results of Panel’s operations had been included in the Company’s consolidated financial statements since that date. As a result of the acquisition, the Company began providing independent market data and information to clients in the biotechnology, pharmaceutical, medical device, and financial industries by leveraging Panel's proprietary methodology and vast network of medical experts.

The Company paid $6.1 million in common stock for Panel. The value of the 1,547,743 shares of common shares issued was determined based on the average market price of the Company’s common stock over the period including three days before and after the terms of the acquisition were agreed to and announced. The selling stockholders were also entitled to additional consideration on the third anniversary from the closing which is based upon Panel Intelligence achieving specific revenue and profitability milestones.

In December 2008, management determined that the sale of Panel would reduce investments required to develop Panel’s business and generate capital necessary for the Company’s core business.   The sale of Panel was completed in January 2009.  Management determined that the plan of sale criteria in ASC 360, “Property, Plant and Equipment”, had been met. As a result, the revenue and expenses of Panel have been reclassified and included in discontinued operations in the Consolidated Statements of Operations. Accordingly, the carrying value of the Panel assets was adjusted to their fair value less costs to sell.  As a result, an impairment loss in the amount of $1,937,000 was recorded and is included in “Other expenses” for the year ended December 31, 2008.  In January 2009, the Company sold Panel to Panel Intelligence, LLC (Newco) for $1,000,000 and shares of its common stock in the amount of $100,000.

 10.  Sale of a Component of an Entity

On January 16, 2009, the Company entered into an agreement to sell the assets of Institutional Cash Distributors (ICD), a division of Merriman Curhan Ford & Co., to a group of investors who are also its employees in order to raise capital.  ICD is a broker of money market funds serving the short-term investing needs of corporate finance departments at companies throughout the United States and Europe.  The assets being sold include the Company’s rights in trademark, copyright and other intellectual property used in the business, customer lists, marketing materials, and books and records.  The Company determined that the discontinued operations criteria in ASC 360, “Property, Plant and Equipment”, have not been met. As such, the revenues and expenses of ICD are still presented as part of continuing operations.  In accordance with ASC 605, “Revenue Recognition”, the Company recognized $1.2 million of the sales proceeds in the first quarter 2009 and $800,000 in the second quarter 2009 as Other Income.  All sales proceeds have been received.
 
22

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

11. Loss per Share

The following is a reconciliation of the basic and diluted net loss available to common stockholders and the number of shares used in the basic and diluted net loss per common share computations for the periods presented:

   
Three Months Ended September 30,
   
Nine Months Ended September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Net loss attributable to common stock holders – basic and diluted
 
$
(21,674,447
)
 
$
(11,723,338
)
 
$
(24,161,074
)
 
$
(23,887,155
)
Weighted-average number of common shares – basic and diluted
   
12,668,073
     
12,672,598
     
12,692,013
     
12,498,687
 
Basic and diluted loss per common share:
                               
     Loss from continuing operations
 
$
(1.71
)
 
$
(0.89
)
 
$
(1.89
)
 
$
(1.61
)
     Loss from discontinued operations
   
     
(0.04
)
   
(0.01
)
   
(0.30
)
     Net loss attributable to common stockholders
 
$
(1.71
)
 
 $
(0.93
)
 
$
(1.90
)
 
 $
(1.91
)

Basic loss per share is computed by dividing net loss by the weighted average number of common shares outstanding, excluding shares of non-vested stock. Diluted loss per share is calculated by dividing net loss by the weighted average number of common shares used in the basic earnings per share calculation plus the number of common shares that would be issued assuming exercise or conversion of all potentially dilutive common shares outstanding, including non-vested stock. Diluted loss per share is unchanged from basic loss per share for the three and nine months ended September 30, 2009 and 2008 because the addition of common shares that would be issued assuming exercise or conversion would be anti-dilutive.  Interest and dividends are also not considered since including them in the calculation of diluted earnings per share would be anti-dilutive.

Shares used in the diluted net loss per share computation include the dilutive impact of the Company’s stock options and warrants. The impact of the Company’s stock options and warrants on shares used for the diluted loss per share computation is calculated based on the average share price of the Company’s common stock for each period using the treasury stock method. Under the treasury stock method, the tax-effected proceeds that would be hypothetically received from the exercise of all stock options and warrants with exercise prices below the average share price of the Company’s common stock are assumed to be used to repurchase shares of the Company’s common stock. Because the Company reported a net loss during the three and nine months ended September 30, 2009 and 2008, the Company excluded the impact of all Series D Convertible Preferred Stock, stock options and warrants in the computation of diluted earnings per share, as their effect would be anti-dilutive.

The Company excludes all potentially dilutive securities from its diluted net loss per share computation when their effect would be anti-dilutive. The common stock equivalents excluded from the diluted net loss per share computation, as their inclusion would have been anti-dilutive, are as follows:
 
23

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)
 
11. Loss per Share (continued)
 
   
Three Months Ended September 30,
   
Nine Months Ended September 30,
 
   
2009
   
2008
   
2009
   
2008
 
                                 
Weighted average common stock equivalents excluded from diluted net loss per share
   
10,676,544
     
4,652,285
     
8,651,052
     
4,073,725
 
 
12. Regulatory Requirements

Merriman Curhan Ford & Co. is a broker-dealer subject to Rule 15c3-1 of the Securities and Exchange Commission, which specifies uniform minimum net capital requirements, as defined, for their registrants. As of September 30, 2009, Merriman Curhan Ford & Co. had regulatory net capital, as defined, of $1,869,000, which exceeded the amount required by $1,597,000. Merriman Curhan Ford & Co. is exempt from Rules 15c3-3 and 17a-13 under the Securities Exchange Act of 1934 because it does not carry customer accounts, nor does it hold customer securities or cash.

 13. Contingencies

A number of lawsuits have been filed against the Company’s wholly owned subsidiary, Merriman Curhan Ford & Co. (“MCF”), including at least one which also names the parent company as the defendant, in connection with the actions of William Del Biaggio III (“Del Biaggio”), a former customer of MCF and David Scott Cacchione (“Cacchione”), a former retail broker of MCF. The claims filed against the Company by DGB Investments, Inc., Craig Leipold, Heritage Bank of Commerce, Modern Bank, Valley Community Bank, AEG Facilities and the Federal Deposit Insurance Company (“FDIC”) as receiver for Security Pacific Bank in an aggregate amount of $43,577,000 were settled as of September 8, 2009.  The amount for which the claims were settled was $4,300,000, the issuance of 5-year warrants to buy 1,538,461 shares of the Company’s common stock at $0.65 each, and the assignment of certain rights to collect potential insurance payments from the Company’s insurers.  The total amount of damages sought under remaining lawsuits and arbitrations, whether or not related to the Del Biaggio/Cacchione matters, is approximately $30,000,000.

The Company and MCF deny any liability and are vigorously contesting the remaining lawsuits and arbitrations. At this point, the Company cannot estimate the amount of damages if they are resolved unfavorably and accordingly, management has not provided an accrual for these lawsuits and arbitrations. If the Company or MCF were to be found liable in these lawsuits and arbitrations and the plaintiffs were to be awarded the damages they seek, it would have a severe impact on the Company's financial condition and the Company would likely not be able to continue in business. Even if the Company and MCF ultimately prevail in all of these lawsuits, they will almost certainly incur significant legal fees which could also have a severe impact on the Company’s financial condition.

From time to time, the Company is also named as a defendant and acts as a plaintiff in the routine conduct of its business.

24

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

14. Related Party Transactions

Unsecured Promissory Notes

           On June 30, 2009, the Company issued $300,000 in unsecured promissory notes to three of its employees at an interest rate of 3.25%.  The maturity date of the notes was October 31, 2009, although they were repayable earlier on the occurrence of certain events. These notes were paid in full in cash.  At September 30, 2009, no unsecured promissory notes remain outstanding.

Bridge Note

On July 31, 2009, the Company issued Mr. Ronald L. Chez, the lead investor in the Series D Transaction, a Secured Promissory Note in the amount of $500,000 at an annual interest rate of 9.00%.  The term of the Note was three years, redeemable by Mr. Chez upon presentation of written demand.  The Note was guaranteed personally by Messrs. Jonathan Merriman (CEO) and Peter Coleman (CFO).  The Company issued 10-year warrants to purchase 1,162,791 shares of the Company’s common stock at $0.65 each share to Mr. Chez in connection with this transaction.  Identical warrants were issued to purchase 581,395 shares of the Company’s common stock each to Messrs. Merriman and Coleman for the guarantee.

The Bridge Note was converted into the Series D Convertible Preferred Stock on September 8, 2009.  Subsequent to the Series D Transaction, Mr. Chez has joined the Company’s Board of Directors.  At September 30, 2009, the Bridge Note was no longer outstanding.

Series D Convertible Preferred Stock

On September 8, 2009, the Company issued 23,720,916 shares of Series D Convertible Preferred Stock along with 5-year warrants to purchase 23,720,916 shares of the Company’s common stock at $0.65 each share.  The investor group constituted of 56 individuals and entities including certain officers, directors and employees of the Company, as well as outside investors.

The Series D Convertible Preferred Stock was issued in a private placement exempt from registration requirements pursuant to Regulation D of the Securities Act of 1933, as amended.  Cash consideration was deposited into escrow on or around August 27, 2009.  Each share of Series D Convertible Preferred Stock is convertible into one share of Common Stock of the Company.  The Series D Convertible Preferred Stock carries a dividend rate of 6% per annum, payable in cash monthly.

 Three of investors in the Series D Convertible Preferred Stock transaction, Messrs. Andrew Arno, Douglas Bergeron, and Ronald Chez, have since joined the Company’s Board of Directors.  In addition, the Company’s CEO and CFO who are also officers of Merriman Curhan Ford & Co. (“MCF&Co.”), the Company’s primary operating subsidiary, along with 11 other executives and senior managers of MCF&Co. were also investors in the Series D Convertible Preferred Stock transaction.  Finally, all 5 members of the Company’s Board of Directors prior to the transaction were investors in the Series D Convertible Preferred Stock transaction.

Secured Demand Note

On August 12, 2009, the Company obtained a Temporary Secured Demand Note (“Demand Note”) in the amount of $1,329,000 from the D. Jonathan Merriman Living Trust as a subordinated loan.  The trustee of the Trust, D. Jonathan Merriman, is also the Chief Executive Officer of the Company.  The Demand Note was collateralized by securities held in a brokerage account held at a third party by the Trust.  The Demand Note was repaid on September 23, 2009 and the securities were transferred back to the Trust.  The Company compensated the Trust with total interest and fees in the amount of $179,000, the majority of which was reinvested in the Series D Convertible Preferred Stock transaction.

Strategic Advisory Committee

The Company formed a Strategic Advisory Committee of the Board of Directors chaired by Mr. Ronald Chez, the lead investor in the Series D Convertible Preferred Stock strategic transaction.  During the first year, the Chair of the Committee will be compensated with warrants to purchase 300,000 shares the Company’s common stock at $0.65, to be issued pro-rata on a monthly basis.  To date, Mr. Chez is the sole member of the Committee.  No other compensation arrangement for service on the Committee has been made.

25

 
MERRIMAN CURHAN FORD GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—CONTINUED
(unaudited)

15. Subsequent Events

Midsummer Investment, Ltd., v. Merriman Curhan Ford Group, Inc.

On November 6, 2009, Midsummer Investment, Ltd. (“Midsummer”) filed a complaint in federal court, Southern District of New York, alleging that Midsummer was denied an anti-dilution adjustment to a warrant issued by MCF&Co. to them, and that MCF&Co. refused to honor an exercise of that warrant.  MCF&Co. believes that Midsummer is not entitled to any anti-dilution adjustment and its attempted exercise was not accompanied by proper payment.  We believe that MCF&Co. has meritorious defenses and it intends to contest this claim vigorously.

Settlement with the Securities and Exchange Commission

On November 10, 2009, the Securities and Exchange Commission (“SEC”) issued an “Order Instituting Administrative and Cease-and-Desist Proceedings Pursuant to Sections 15(b) and 21(c) of the Securities and Exchange Act of 1934, Making Findings and Imposing Remedial Sanctions and a Cease-and-Desist Order as to Merriman Curhan Ford & Co., D. Jonathan Merriman, and Christopher Aguilar.”  The Order was issued in connection with the conduct of a former retail broker, David “Scott” Cacchione, from approximately March 2006 to April 2008 for violation of the anti-fraud provisions of the federal securities laws.  Cacchione was fired in May 2008, shortly after the underlying facts became known.
 
The Order censures and imposes sanctions for the failure of MCF&Co. to reasonably supervise Cacchione with a view toward preventing future violations arising out of his disseminating confidential customer information to third parties and executing unauthorized orders for certain customers.  MCF&Co. will pay a penalty of $100,000 and will hire an Independent Consultant to review and make recommendations as needed to MCF&Co.’s written policies and procedures relating to the supervision of registered representatives.
 
The Order also imposes sanctions on Jon Merriman, MCF&Co.’s former CEO and current CEO of the Company, and Christopher Aguilar, MCF&Co.’s former Chief Compliance Officer, for failure to adequately supervise Cacchione.  Jon Merriman must pay a penalty of $75,000 and Chris Aguilar must pay a penalty of $40,000.  Both individuals are also suspended from acting in a supervisory capacity for any broker or dealer for a period of twelve months from the date of the Order.
 
The Order makes no finding or allegation of any fraudulent activity involving anyone in MCF&Co. other than Cacchione.  MCF&Co., Mr. Merriman, and Mr. Aguilar cooperated fully with the SEC’s investigation and consented to the SEC’s Order without admitting or denying the findings.
 
26

 
ITEM 2  Management's Discussion and Analysis of Financial Condition and Results of Operations

This Quarterly Report on Form 10-Q, including this Management's Discussion and Analysis of Financial Condition and Results of Operations contains forward-looking statements regarding future events and our future results that are based on current expectations, estimates, forecasts, and projections about the industries in which we operate and the beliefs and assumptions of our management. Words such as “may,” “should,” “expects,” “anticipates,” “targets,” “goals,” “projects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “predicts,” “potential” or “continue,” variations of such words, and similar expressions are intended to identify such forward-looking statements. In addition, any statements that refer to projections of our future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances, are forward-looking statements. Readers are cautioned that these forward-looking statements are only predictions and are subject to risks, uncertainties, and assumptions that are difficult to predict. Therefore, actual results may differ materially and adversely from those expressed in any forward-looking statements. Readers are referred to risks and uncertainties identified underRisk Factors” beginning on Page 53 and elsewhere herein. We undertake no obligation to revise or update publicly any forward-looking statements for any reason. Numbers expressed herein may be rounded to thousands of dollars.

Overview

We are a financial services holding company that provides investment research, capital markets services, corporate and venture services, and investment banking through our operating subsidiary, Merriman Curhan Ford & Co.

Merriman Curhan Ford & Co. is an investment bank and securities broker-dealer focused on fast growing companies and institutional investors. Our mission is to become a leader in the researching, advising, financing and trading in fast growing companies under $1 billion in market capitalization. We provide equity research, brokerage and trading services primarily to institutions, as well as investment banking and advisory services to corporate clients. We originate differentiated research for our institutional investor clients and provide specialized and integrated financing and advisory services for our corporate clients.

In January 2009, we entered into an agreement to sell the assets of Institutional Cash Distributors (ICD), a division of Merriman Curhan Ford & Co., to a group of investors who are also its employees in order to raise capital.  ICD is a broker of money market funds serving the short-term investing needs of corporate finance departments at companies throughout the United States and Europe.  Completion of the sale is subject to regulatory review and approval.  When the sale is completed, we will no longer include the results of its operations and its financial condition in our financial statements.

Also in January 2009, we sold the assets of our subsidiary Panel Intelligence, LLC (Panel) which provides custom and published primary research to industry clients and investment professionals through online panel discussions, quantitative surveys and an extensive research library.  We decided to sell Panel to reduce our costs and to refocus on our core investment banking and broker-dealer services.

MCF Asset Management, LLC, another subsidiary, manages absolute return investment products for institutional and high-net worth clients. We are in the process of liquidating these investment products and returning investments to the investors.  As of September 30, 2009, we liquidated all of our funds except one.  All the liquid assets in the one remaining fund have been liquidated.  There are illiquid assets, such as restricted stock and warrants, which have not yet been liquidated.  We expect to complete the liquidation in 2009.

27

 
Executive Summary

Revenue from continuing operations grew by 192% in the third quarter 2009 relative to the third quarter 2008. Our commissions revenue for the same period grew by 23% year-over-year, due primarily to continued growth of our Institutional Cash Distributors money fund business which is being sold.  (Please see “Results of Operations” below for a more detailed view of the impact of selling ICD assets.) Investment banking revenue continues to recover from the near paralysis of 2008 financial markets and grew by 95% year over year. Losses from principal transactions improved 99% for the three months ended September 30, 2009 compared to the same period 2008 mainly due to the recovery of the broad financial markets. We incurred a net loss of $16,569,000, or $1.71 per share for the quarter.  Operationally, our core business generated a profit of $11,000 on a non-GAAP pro-forma basis.

Much of our net loss for the quarter is attributed to the expenses ($5,335,000) related to the settlement of seven of our legal cases for $4,300,000 in cash and the associated non-cash issuance of warrants valued at $1,035,000.  About $690,000 in Professional Services cash expenses for the quarter is related to legal payments that can be directly attributed to the settlement of the legal cases or to defending ourselves in the remaining cases arising out of the Del Biaggio/Cacchione matters.  We do not consider these expenses to be part of our on-going core business.

Although the ICD business has contributed to our revenue by a substantial amount ($6,667,000 in the quarter), it has not added to our net results.  Since January 2009, upon agreement to sell the ICD assets for $2,000,000, we have paid all amounts received as revenue either as expenses or as commissions to the buyers of the ICD assets.

In the analysis and review of our core business, we have also excluded the effect of the unrealized gains and losses resulting from owning securities.  For the quarter ended September 30, 2009, we had and excluded an unrealized gain of $213,000 from our analysis.

After adjusting for the revenue and expense items described above, on a non-GAAP pro-forma basis, our core business provided an operating income of $11,000 for the quarter.  (Please see the reconciliation of U.S. GAAP results to pro-forma results in the “Results of Operations” section below.)

Business Environment

On October 29, 2009, the Department of Commerce announced that gross domestic product rose at an annualized rate of 3.5% in the third quarter compared to the second.  Much of the third-quarter growth was the result of temporary government stimulus. Consumer spending grew by 3.4%, the highest since early 2007, largely because people were buying new cars in July and August with federal “cash for clunkers” credits of $4,000 per qualifying vehicle. Sales have since fallen. Residential construction leapt by 23.4%, the first advance since the end of 2005, helped by an $8,000 tax credit for buyers of new homes. But new-home sales dipped by 3.6% in September, as the deadline to qualify for the credit passed.  (As of November 10, 2009, Congress is considering granting a new tax credit for home buyers in an amount to be determined.)

In the Spring of 2009, the broad financial markets had begun to recover.  The financial sector, however, has lagged behind.  Financial stocks, specifically the banks, have been lagging behind the broad markets since August. While the S&P 500 trended upwards, the SPDR KBW Bank exchange-traded fund (ticker: KBE) has remained in a flat trading range during the third quarter.

The fear in the banking community after failures of many of its members is contributing to a credit tightening, making it difficult for smaller companies to obtain loans.  The government’s plan to strengthen banks as intermediaries in the capital markets may have hit a roadblock where banks continue to be reluctant to lend to smaller businesses.  This is constraining the capital markets.

Our securities broker-dealer and investment banking activities are linked to the capital markets. In addition, our business activities are focused in the CleanTech, Consumer/Internet/Media, Health Care, Resources and Technology sectors.  By their nature, our business activities are highly competitive and are not only subject to general market conditions, volatile trading markets and fluctuations in the volume of market activity, but also to the conditions affecting the companies and markets in our areas of focus.

Fluctuations in revenue also occur due to the overall level of market activity, which, among other things, affects the flow of investment dollars and the size, number and timing of investment banking transactions. In addition, a downturn in the level of market activity can lead to a decrease in brokerage commissions. Therefore, revenue in any particular period may vary significantly from year to year.

28

 
Issuance of Debt

We issued a series of strategic transactions beginning in May 2009 which culminated in the issuance of Series D Convertible Preferred Stock on September 8, 2009.  The May 2009 transaction is described in our Form 10-Q for the period ending June 30, 2009 and below.

Convertible Notes

On May 29, 2009, we sold and issued $525,000 in principal amount of Secured Convertible Promissory Notes (each a “Note,” and collectively, the “Notes”).  On June 1, 2009, we issued an additional $100,000 of Notes. The investor group included eight individuals, comprised of certain of our officers and employees as well as an outside investor.  The Notes were issued in a private placement exempt from registration requirements.  There were no underwriters, underwriting discounts or commissions involved in the transactions.  The Notes carried an interest rate of 11% per annum, payable in cash quarterly, and were due two years from issuance, although they were repayable earlier on the occurrence of certain events.  As part of this transaction, we entered into a Security Agreement with the investors in the Notes by which we pledged all assets of the Company as security for the Notes.  If we had liquidated, the investors in the Notes would have had to be repaid before any other obligations of the Company, which would have reduced the amount of assets available for distribution to our stockholders.

The Notes were convertible into our common stock at a price of $0.50 per share and came with warrants (the “Warrants”) to purchase additional shares of our common stock at $0.50 per share for a number of shares of common stock equal to 75% of the principal amount of the Notes purchased, divided by $0.50.  The Notes were convertible beginning six months after issuance while the Warrants are exercisable immediately.

Both the Notes and the Warrants have anti-dilution features so that if we were to pay dividends, split (forward or reverse) our common shares, or adjusts our shares outstanding due to a combination, the conversion and exercises prices, respectively, would also adjust proportionally.  The Notes had a two-year maturity and the warrants will expire 10 years from the date of the transaction.  

The total proceeds of $625,000 raised in the transaction described above is accounted for under generally accepted accounting principles, ASC 470, “Debt”. We have accounted for this transaction as the issuance of convertible debt and a detachable stock warrant.  The total proceeds of $625,000 have been allocated to these individual instruments based on their relative fair value as determined by management.

We estimated the fair value of its convertible debt at the time of issuance.  As a result, the Notes and the Warrants are carried at fair values of $419,000 and $206,000, respectively, at inception.  The Notes had an embedded beneficial conversion option and the $419,000 value can be bifurcated into a host valued at $239,000 and a beneficial conversion option valued at $180,000.  The value of the Warrant was recorded as an increase to additional paid-in capital. The total discount on the Notes of $206,000 will be amortized over the term of the Notes.  The amortization during the quarter was in the amount of $7,000.

The Notes were converted into Series D Convertible Preferred Stock (see Note 4).  At September 30, 2009, no Notes remain outstanding.  The associated warrants remain outstanding.

Unsecured Promissory Notes

           On June 30, 2009, the Company issued $300,000 in unsecured promissory notes to three of its employees at an interest rate of 3.25%.  The maturity date of the notes was October 31, 2009, although they were repayable earlier on the occurrence of certain events. These notes were paid in full in cash.  At September 30, 2009, no unsecured promissory notes remain outstanding.
.
29

 
Bridge Note

On July 31, 2009, we issued Mr. Ronald L. Chez, the lead investor in the Series D Transaction, a Secured Promissory Note in the amount of $500,000 at an annual interest rate of 9.00%.  The term of the Note was three years, redeemable by Mr. Chez upon presentation of written demand.  The Note was guaranteed personally by Messrs. Jonathan Merriman (CEO) and Peter Coleman (CFO).  We issued 10-year warrants to purchase 1,162,791 shares of our common stock at an exercise price of $0.65 per share to Mr. Chez in connection with this transaction. (See Note 5 regarding the accounting for the warrants.)  The two members of management were compensated for the guarantee with warrants to purchase 1,162,790 shares of our common stock.

As discussed above, we issued warrants to purchase 2,325,581 shares of common stock in conjunction with the issuance of the Bridge Note. These warrants were assessed in accordance with ASC 815 “Derivatives and Hedging” and it was determined that the full ratchet provision included in the warrant agreement triggered derivative liability accounting. As a result, in accordance with the accounting guidance, the warrants were recorded at fair value and will be marked to market on each reporting date with the change in fair value recorded in our Consolidated Statements of Operations. Additionally, the proceeds of the transaction will be allocated between the Bridge Note and the warrants using the residual method in which proceeds are first allocated to the warrant liability and any remaining value is then allocated to the Bridge Note.  The warrants were valued using the Black-Scholes fair value model. The grant date fair value of the warrants issued in connection with the Bridge Note to the note holder and the members of management was $347,000 and $347,000, respectively. We allocated all of the proceeds to the warrant liability and recorded a full debt discount to be applied against the note using the residual method. The fair value of the warrants issued to members of management in compensation for the note guarantee was recorded as a debt issuance cost. Both the debt discount and the debt issuance cost will be amortized to interest expense over the term of the note. (See Note 5 below for more information regarding the warrant liability.)

On September 8, 2009, the Bridge Note was converted into Series D Convertible Preferred Stock. At the date of conversion there was $503,000 of principal and interest outstanding on the Bridge note which was converted into 1,171,000 shares of Series D Convertible Preferred Stock. Additionally, as of the conversion date, the entire debt discount and related debt issuance costs were expensed and no outstanding balance remained at September 30, 2009.

Series D Convertible Preferred Stock

On September 8, 2009, we issued 23,720,916 shares of Series D Convertible Preferred Stock along with 5-year warrants to purchase 23,720,916 shares of our common stock with an exercise price of $0.65 per share.  The investor group of 56 constituted of individuals and entities including certain of our officers, directors and employees, as well as outside investors.  All or portions of the principal and accrued interest of the May 29, 2009 Convertible Notes, the June 30 Unsecured Promissory Note and the July 31 Bridge Note were converted into the Series D Convertible Preferred Stock shares.  None of these debt instruments remain outstanding after September 8, 2009.  The warrants issued in conjunction with the May 29 Convertible Notes and with the July 31 Bridge Note remain outstanding. (See Note 5 regarding the accounting for the warrants issued in connection with the Series D Convertible Preferred Stock.)

The Series D Convertible Preferred Stock was issued in a private placement exempt from registration requirements pursuant to Regulation D of the Securities Act of 1933, as amended.  Cash consideration was deposited into escrow on or around August 27, 2009.  Each share of Series D Convertible Preferred Stock is convertible into one share of our Common Stock.  The Series D Convertible Preferred Stock carries a dividend rate of 6% per annum, payable in cash monthly.

Both the Series D Convertible Preferred Stock and the warrants issued in connection with the Series D Convertible Preferred Stock have anti-dilution features including a full ratchet provision so that if we were to pay dividends, split (forward or reverse) our common shares, or adjust our shares outstanding due to a combination, the conversion and exercises prices, respectively, would also adjust proportionally.  The warrants will expire 5 years from the date of the transaction.  Holders of the Series D Convertible Preferred Stock may convert their Series D Convertible Preferred Stock into shares of our common stock at any time in amounts no less that $100,000 unless it is for all of the shares held by the holder.  The Series D Convertible Preferred Stock will automatically convert at our discretion upon 10 day notice given when the average closing price of our common stock over a 30-day period is at or above $3.00 per share and when the average trading volume for the most recent four-week period is 30,000 shares or more, provided that the shares have been effectively registered with the Securities and Exchange Commission or all of the Series D Convertible Preferred Stock may be sold under Rule 144 of the 1933 Exchange Act.

The total proceeds of $10.2 million raised in the transaction described above are accounted for under generally accepted accounting principles, primarily ASC 470, “Debt”. We have accounted for this transaction as the issuance of convertible preferred stock and a detachable stock warrant.  The total proceeds of $10.2 million have been allocated to these individual instruments based on their relative fair value as determined by management.

30

 
As discussed above, we issued warrants to purchase 23,720,916 shares of common stock in conjunction with the sale of the Series D Convertible Preferred Stock. These warrants were assessed in accordance with ASC 815 “Derivatives and Hedging” and it was determined that the full ratchet provision included in the warrant agreement triggered derivative liability accounting. As a result, in accordance with the accounting guidance, the warrants were recorded at fair value and will be marked to market on each reporting date with the change in fair value recorded in our Consolidated Statements of Operations. Additionally, the proceeds of the transaction should be allocated between the Series D Convertible Preferred Stock and the warrants using the residual method in which proceeds are first allocated to the warrant liability and any remaining value is then allocated to the preferred stock.  The warrants were valued using the Black-Scholes fair value model. The grant date fair value of the warrants issued with the Series D Convertible Preferred Stock was $15,264,000. As the fair value of the warrants exceeds the proceeds received, we allocated all of the proceeds, with the exception of the par value of the Series D Convertible Preferred Stock, to the warrant liability. The additional value needed to record the warrants at fair value was recorded as a charge to additional paid-in capital (APIC) as it constitutes an expense of the strategic transaction. (See Note 5 below for more information regarding the warrant liability.)

The Series D Convertible Preferred Stock we issued pays dividends to the holders at an annual rate of 6%, payable monthly in arrears.  As of September 30, 2009, we recorded a dividends payable of $39,000 which was included in accrued liabilities as of September 30, 2009.

Liquidity and Capital Resources

As of September 30, 2009, liquid assets consisted primarily of cash and cash equivalents of $7,526,000 and marketable securities of $4,629,000, for a total of $12,155,000, which is $1,174,000 higher than $10,981,000 in liquid assets as of December 31, 2008.

We entered into strategic transactions on May 29, June 30, July 31, and September 8, 2009 which resulted in an increase in our capital.  These transactions are described above under the captions “Issuance of Debt” and “Series D Convertible Preferred Stock”.

Merriman Curhan Ford & Co., as a broker-dealer, is subject to Rule 15c3-1 of the Securities Exchange Act of 1934, which specifies uniform minimum net capital requirements, as defined, for their registrants. As of September 30, 2009, Merriman Curhan Ford & Co. had regulatory net capital of $1,869,000 which exceeded the required amount by $1,597,000.

Please see also Note 2 beginning on page 10, regarding our going concern disclosures.

Results of Operations

Regulation G Reconciliation of Non-GAAP Financial Measures

In evaluating our financial performance, management reviews results from operations excluding non-operating revenues and expenses.  Such pro-forma results are non-GAAP (Generally Accepted Accounting Principles) performance measures but we believe it is useful to assist investors in gaining an understanding of the trends and results of our core business.  Pro-forma results should be viewed in addition to, and not instead of, our reported results under U.S. GAAP.

The following is a reconciliation of U.S. GAAP results to pro-forma results for the periods presented.

31

 
   
Three Months Ended September 30,
 
   
2009
   
2008
 
   
As Reported
   
Less ICD
   
Less Other1
   
Pro-Forma
   
As Reported
   
Less ICD
   
Less Other1
   
Pro-Forma
 
Revenue:
                                               
Commissions
  $ 9,804,718     $ 6,667,486           $ 3,137,232     $ 7,992,614     $ 2,591,359           $ 5,401,255  
Principal transactions
    (35,522 )           213,356       (248,878 )     (5,384,303 )           (7,723,627 )     2,339,324  
Investment banking
    3,127,596                   3,127,596       1,600,260                   1,600,260  
Advisory and other fees
    411,602                   411,602       341,656                   341,656  
Total revenue
    13,308,394       6,667,486       213,356       6,427,552       4,550,227       2,591,359       (7,723,627 )     9,682,495  
Operating expenses:
                                                               
Compensation and benefits
    10,230,680       6,227,472             4,003,208       7,876,092       1,804,779             6,071,313  
Brokerage and clearing fees
    208,051       14,172             193,879       558,344       17,633             540,711  
Professional services
    1,063,883       65,205       690,260       308,418       3,994,278       13,273       3,114,874       866,131  
Occupancy and equipment
    551,300       17,170             534,130       540,104       3,500             536,604  
Communications and technology
    881,879       145,124             736,755       662,912       73,528             589,384  
Depreciation and amortization
    109,922                   109,922       279,261                   279,261  
Travel and entertainment
    449,108       167,248             281,860       634,689       110,454             524,235  
Litigation settlement
    5,334,926             5,334,926                                
Other expenses
    369,581       121,287             248,294       1,295,405       31,387             1,264,018  
Total operating expenses
    19,199,330       6,757,678       6,025,186       6,416,466       15,841,085       2,054,554       3,114,874       10,671,657  
Operating income/(loss)
    (5,890,936 )     (90,192 )     (5,811,830 )     11,086       (11,290,858 )     536,805       (10,838,501 )     (989,162 )
 
32

 
   
Nine Months Ended September 30,
 
   
2009
   
2008
 
   
As Reported
   
Less ICD
   
Less Other1
   
Pro-Forma
   
As Reported
   
Less ICD
   
Less Other1
   
Pro-Forma
 
Revenue:
                                               
Commissions
  $ 28,892,568     $ 20,074,321           $ 8,818,247     $ 24,353,696     $ 7,161,056           $ 17,192,640  
Principal transactions
    (131,020 )     (2,288 )     (480,292 )     351,560       (5,280,550 )           (8,105,058 )     2,824,508  
Investment banking
    5,411,463                   5,411,463       9,423,666                   9,423,666  
Advisory and other fees
    1,618,282                   1,618,282       581,256                   581,256  
Total revenue
    35,791,293       20,072,033       (480,292 )     16,199,552       29,078,068       7,161,056       (8,105,058 )     30,022,070  
Operating expenses:
                                                               
Compensation and benefits