Attached files
file | filename |
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8-K - FORM 8-K - JDA SOFTWARE GROUP INC | p17827e8vk.htm |
EX-99.5 - EX-99.5 - JDA SOFTWARE GROUP INC | p17827exv99w5.htm |
EX-99.3 - EX-99.3 - JDA SOFTWARE GROUP INC | p17827exv99w3.htm |
EX-99.2 - EX-99.2 - JDA SOFTWARE GROUP INC | p17827exv99w2.htm |
EX-23.1 - EX-23.1 - JDA SOFTWARE GROUP INC | p17827exv23w1.htm |
EX-23.2 - EX-23.2 - JDA SOFTWARE GROUP INC | p17827exv23w2.htm |
EX-99.1 - EX-99.1 - JDA SOFTWARE GROUP INC | p17827exv99w1.htm |
Exhibit 99.4
Consolidated Financial Statements and Report of Independent Registered Public Accounting Firm
i2 Technologies, Inc.
December 31, 2009 and 2008
1
i2 Technologies, Inc.
INDEX
Page | ||||
Report of Independent Registered Public Accounting Firm |
3 | |||
Consolidated Balance Sheets |
4 | |||
Consolidated Statements of Operations and Comprehensive Income |
5 | |||
Consolidated Statements of Changes in Stockholders Equity/(Deficit) |
6 | |||
Consolidated Statements of Cash Flows |
7 | |||
Notes to Consolidated Financial Statements |
8 |
2
Report of Independent Registered Public Accounting Firm
The Audit Committee of the Board of Directors
JDA Software Group, Inc.
JDA Software Group, Inc.
We have audited the accompanying consolidated balance sheets of i2 Technologies, Inc. and
subsidiaries (the Company) as of December 31, 2009 and 2008, and the related consolidated
statements of operations and comprehensive income, stockholders equity (deficit), and cash flows
for each of the three years in the period ended December 31, 2009. These financial statements are
the responsibility of the Companys management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the financial position of the Company as of December 31, 2009 and 2008, and the
results of their operations and their cash flows for each of the three years in the period ended
December 31, 2009, in conformity with accounting principles generally accepted in the United States
of America.
As discussed in Note 1 to the consolidated financial statements, the Company adopted the provisions
of FASB Staff Position No. APB 14-1, Accounting for Convertible Debt Instruments That May Be
Settled in Cash upon Conversion (Including Partial Cash Settlement), as of January 1, 2009, and
accordingly, adjusted the previously issued consolidated balance sheet as of December 31, 2008 and
related statements of operations, stockholders equity and comprehensive income (loss) and cash
flows for each of the years in the two-year period ended December 31, 2008.
As discussed in Note 16, on January 28, 2010 the Company became a wholly owned subsidiary of JDA
Software Group, Inc.
Dallas, Texas
May 24, 2010
May 24, 2010
3
i2 TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except par value)
CONSOLIDATED BALANCE SHEETS
(In thousands, except par value)
December 31, | December 31, | |||||||
2009 | 2008 | |||||||
(as adjusted) | ||||||||
ASSETS |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 203,358 | $ | 238,013 | ||||
Restricted cash |
6,759 | 5,777 | ||||||
Accounts receivable, net |
21,753 | 25,846 | ||||||
Other current assets |
7,762 | 9,477 | ||||||
Total current assets |
239,632 | 279,113 | ||||||
Premises and equipment, net |
3,274 | 4,915 | ||||||
Goodwill |
16,684 | 16,684 | ||||||
Non-current deferred tax asset |
10,174 | 7,289 | ||||||
Other non-current assets |
3,889 | 5,024 | ||||||
Total assets |
$ | 273,653 | $ | 313,025 | ||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 3,710 | $ | 4,855 | ||||
Accrued liabilities |
12,661 | 12,937 | ||||||
Accrued legal litigation |
7,746 | 2,179 | ||||||
Accrued compensation and related expenses |
18,269 | 18,679 | ||||||
Deferred revenue |
44,366 | 53,028 | ||||||
Total current liabilities |
86,752 | 91,678 | ||||||
Total long-term debt, net |
| 64,520 | ||||||
Taxes payable |
6,195 | 6,948 | ||||||
Total liabilities |
92,947 | 163,146 | ||||||
Commitments and contingencies |
||||||||
Stockholders equity: |
||||||||
Preferred Stock, $0.001 par value, 5,000 shares authorized,
none issued and outstanding |
| | ||||||
Series A junior participating preferred stock,
$0.001 par value,
2,000 shares authorized, none issued and outstanding |
| | ||||||
Series B 2.5% convertible preferred stock, $1,000 par value, 150
shares authorized 111 issued and outstanding at December 31, 2009
and 109 issued and outstanding at December 31, 2008 |
108,411 | 106,591 | ||||||
Common stock, $0.00025 par value, 2,000,000 shares authorized,
23,180 and 21,895 shares issued and outstanding
at December 31, 2009 and December 31, 2008, respectively |
6 | 5 | ||||||
Additional paid-in capital |
10,496,783 | 10,498,453 | ||||||
Accumulated other comprehensive income |
3,798 | 1,509 | ||||||
Accumulated deficit |
(10,428,292 | ) | (10,456,679 | ) | ||||
Net stockholders equity |
180,706 | 149,879 | ||||||
Total liabilities and stockholders equity |
$ | 273,653 | $ | 313,025 | ||||
See accompanying notes to consolidated financial statements.
4
i2 TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
(In thousands, except per share data)
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
(In thousands, except per share data)
Years Ended December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(as adjusted) | (as adjusted) | |||||||||||
Revenues: |
||||||||||||
Software solutions |
$ | 55,093 | $ | 46,852 | $ | 47,721 | ||||||
Services |
94,583 | 123,564 | 122,682 | |||||||||
Maintenance |
73,134 | 85,397 | 87,457 | |||||||||
Contract |
| | 2,450 | |||||||||
Total revenues |
222,810 | 255,813 | 260,310 | |||||||||
Costs and expenses: |
||||||||||||
Cost of revenues: |
||||||||||||
Software solutions |
9,564 | 9,316 | 8,567 | |||||||||
Services |
59,973 | 89,928 | 97,397 | |||||||||
Maintenance |
8,929 | 10,139 | 11,074 | |||||||||
Amortization of acquired technology |
| 4 | 25 | |||||||||
Sales and marketing |
36,962 | 45,135 | 41,872 | |||||||||
Research and development |
26,629 | 29,241 | 33,513 | |||||||||
General and administrative |
41,000 | 42,062 | 37,770 | |||||||||
Amortization of intangibles |
25 | 100 | 78 | |||||||||
Restructuring charges and adjustments |
2,975 | (95 | ) | 3,955 | ||||||||
Costs and expenses, subtotal |
186,057 | 225,830 | 234,251 | |||||||||
Intellectual property settlement, net |
935 | (79,860 | ) | 921 | ||||||||
Total costs and expenses |
186,992 | 145,970 | 235,172 | |||||||||
Operating income |
35,818 | 109,843 | 25,138 | |||||||||
Non-operating (expense) income, net: |
||||||||||||
Interest income |
325 | 3,876 | 5,488 | |||||||||
Interest expense |
(899 | ) | (7,473 | ) | (7,372 | ) | ||||||
Foreign currency hedge and transaction losses, net |
(1,755 | ) | (1,700 | ) | (678 | ) | ||||||
Loss on extinguishment of debt |
(892 | ) | | | ||||||||
Other income (expense), net |
(1,142 | ) | 11,510 | (776 | ) | |||||||
Total non-operating (expense) income, net |
(4,363 | ) | 6,213 | (3,338 | ) | |||||||
Income before income taxes |
31,455 | 116,056 | 21,800 | |||||||||
Income tax (benefit) expense |
(147 | ) | 8,382 | 6,133 | ||||||||
Net income |
31,602 | 107,674 | 15,667 | |||||||||
Preferred stock dividend and accretion of discount |
3,215 | 3,140 | 3,071 | |||||||||
Net income applicable to common stockholders |
$ | 28,387 | $ | 104,534 | $ | 12,596 | ||||||
Net income per common share applicable to common
stockholders: |
||||||||||||
Basic |
$ | 1.05 | $ | 3.97 | $ | 0.49 | ||||||
Diluted |
$ | 1.03 | $ | 3.91 | $ | 0.47 | ||||||
Weighted-average common shares outstanding: |
||||||||||||
Basic |
27,128 | 26,333 | 25,816 | |||||||||
Diluted |
27,526 | 26,711 | 26,748 | |||||||||
Comprehensive income: |
||||||||||||
Net income applicable to common stockholders |
$ | 28,387 | $ | 104,534 | $ | 12,596 | ||||||
Other comprehensive income (loss): |
||||||||||||
Foreign currency translation adjustments |
2,289 | (8,454 | ) | 7,565 | ||||||||
Total other comprehensive income (loss) |
2,289 | (8,454 | ) | 7,565 | ||||||||
Total comprehensive income |
$ | 30,676 | $ | 96,080 | $ | 20,161 | ||||||
See accompanying notes to consolidated financial statements.
5
I2 TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS EQUITY/(DEFICIT)
Years Ended December 31, 2009, 2008 and 2007
(In thousands)
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS EQUITY/(DEFICIT)
Years Ended December 31, 2009, 2008 and 2007
(In thousands)
Accumulated | ||||||||||||||||||||||||||||||||
Warrants and | Other | Total | ||||||||||||||||||||||||||||||
Preferred Stock | Common Stock | Additional | Comprehensive | Accumulated | Stockholders | |||||||||||||||||||||||||||
Shares | Amount | Shares | Amount | Paid in Capital | Income (Loss) | Deficit | Equity/(Deficit) | |||||||||||||||||||||||||
(as adjusted) | (as adjusted) | (as adjusted) | ||||||||||||||||||||||||||||||
Balance as of December 31, 2006 |
105 | $ | 101,686 | 21,005 | $ | 5 | $ | 10,468,391 | $ | 2,398 | $ | (10,573,809 | ) | $ | (1,329 | ) | ||||||||||||||||
Preferred stock dividend and accretion of discount |
2 | 1,764 | | | | | (3,071 | ) | (1,307 | ) | ||||||||||||||||||||||
Common stock issuance from options and
employee stock plans |
| | 443 | | 3,399 | | | 3,399 | ||||||||||||||||||||||||
Stock based compensation |
| | | 12,441 | | | 12,441 | |||||||||||||||||||||||||
Foreign currency translation |
| | | | | 7,565 | | 7,565 | ||||||||||||||||||||||||
Net income |
| | | | | | 15,667 | 15,667 | ||||||||||||||||||||||||
Balance as of December 31, 2007 |
107 | $ | 103,450 | 21,448 | $ | 5 | $ | 10,484,231 | $ | 9,963 | $ | (10,561,213 | ) | $ | 36,436 | |||||||||||||||||
Preferred stock dividend and accretion of discount |
2 | 3,141 | (3,140 | ) | 1 | |||||||||||||||||||||||||||
Common stock issuance from options and
employee stock plans |
447 | 526 | 526 | |||||||||||||||||||||||||||||
Stock based compensation |
13,696 | 13,696 | ||||||||||||||||||||||||||||||
Foreign currency translation |
(8,454 | ) | (8,454 | ) | ||||||||||||||||||||||||||||
Net income |
107,674 | 107,674 | ||||||||||||||||||||||||||||||
Balance as of December 31, 2008 |
109 | $ | 106,591 | 21,895 | $ | 5 | $ | 10,498,453 | $ | 1,509 | $ | (10,456,679 | ) | $ | 149,879 | |||||||||||||||||
Preferred stock dividend and accretion of discount |
2 | 1,820 | (3,215 | ) | (1,395 | ) | ||||||||||||||||||||||||||
Common stock issuance from options and
employee stock plans |
1,285 | 1 | 9,157 | 9,158 | ||||||||||||||||||||||||||||
Repurchase of debt, equity conversion FSP 14-1 |
(20,251 | ) | (20,251 | ) | ||||||||||||||||||||||||||||
Stock based compensation |
9,424 | 9,424 | ||||||||||||||||||||||||||||||
Foreign currency translation |
2,289 | 2,289 | ||||||||||||||||||||||||||||||
Net income |
31,602 | 31,602 | ||||||||||||||||||||||||||||||
Balance as of December 31, 2009 |
111 | $ | 108,411 | 23,180 | $ | 6 | $ | 10,496,783 | $ | 3,798 | $ | (10,428,292 | ) | $ | 180,706 | |||||||||||||||||
See accompanying notes to consolidated financial statements.
6
i2 TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Twelve Months Ended December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
(as adjusted) | (as adjusted) | |||||||||||
Cash flows from operating activities: |
||||||||||||
Net income |
$ | 31,602 | $ | 107,674 | $ | 15,667 | ||||||
Adjustments to reconcile net income to net cash provided by
operating activities: |
||||||||||||
Amortization of debt issuance expense |
84 | 690 | 684 | |||||||||
Debt discount accretion |
389 | 3,157 | 3,055 | |||||||||
Loss on extinguishment of debt |
892 | | | |||||||||
Depreciation and amortization |
2,777 | 3,574 | 4,726 | |||||||||
Stock based compensation |
9,424 | 13,685 | 12,388 | |||||||||
Loss on disposal of premises and equipment |
230 | 141 | 256 | |||||||||
Provision for bad debts charged to costs and expenses |
(19 | ) | 368 | 6 | ||||||||
Deferred income taxes |
(3,138 | ) | 1,145 | 816 | ||||||||
Changes in operating assets and liabilities, excluding the effects of
acquisitions: |
||||||||||||
Accounts receivable |
4,137 | (995 | ) | 910 | ||||||||
Other assets |
4,036 | (12,659 | ) | 8,123 | ||||||||
Accounts payable |
(1,539 | ) | 1,547 | (2,852 | ) | |||||||
Taxes payable |
(195 | ) | 2,088 | | ||||||||
Accrued liabilities |
5,130 | 992 | (7,948 | ) | ||||||||
Accrued compensation and related expenses |
(723 | ) | 2,286 | (6,842 | ) | |||||||
Deferred revenue |
(8,593 | ) | (9,150 | ) | (12,549 | ) | ||||||
Net cash provided by operating activities |
44,494 | 114,543 | 16,440 | |||||||||
Cash flows (used in) provided by investing activities: |
||||||||||||
Restrictions (placed) released on cash |
(982 | ) | 2,679 | (3,830 | ) | |||||||
Purchases of premises and equipment |
(1,380 | ) | (1,253 | ) | (1,341 | ) | ||||||
Proceeds from sale of premises and equipment |
72 | 26 | 24 | |||||||||
Business acquisitions |
(2,124 | ) | ||||||||||
Net cash (used in) provided by investing activities |
(2,290 | ) | 1,452 | (7,271 | ) | |||||||
Cash flows (used in) provided by financing activities: |
||||||||||||
Repurchase of debt and equity conversion feature |
(84,814 | ) | | | ||||||||
Cash dividend preferred stock |
(1,395 | ) | | (1,307 | ) | |||||||
Net proceeds from common stock issuance from options and
employee stock purchase plans |
9,158 | 538 | 3,399 | |||||||||
Net cash (used in) provided by financing activities |
(77,051 | ) | 538 | 2,092 | ||||||||
Effect of exchange rates on cash |
192 | 502 | 298 | |||||||||
Net change in cash and cash equivalents |
(34,655 | ) | 117,035 | 11,559 | ||||||||
Cash and cash equivalents at beginning of period |
238,013 | 120,978 | 109,419 | |||||||||
Cash and cash equivalents at end of period |
$ | 203,358 | $ | 238,013 | $ | 120,978 | ||||||
Supplemental cash flow information |
||||||||||||
Interest paid |
$ | 1,053 | $ | 4,312 | $ | 4,312 | ||||||
Income taxes paid (net of refunds received) |
$ | 4,415 | $ | 4,760 | $ | 5,093 | ||||||
Schedule of non-cash financing activities |
||||||||||||
Preferred stock dividend and accretion of discount |
$ | 3,215 | $ | 3,140 | $ | 1,764 |
See accompanying notes to consolidated financial statements.
7
i2 TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Table dollars in thousands, except per share data)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Table dollars in thousands, except per share data)
1. Summary of Significant Accounting Policies
Nature of Operations. We operate our business in one segment, supply chain management
solutions, which are designed to help enterprises optimize business processes both internally and
among trading partners. We are a provider of supply chain management solutions, consisting of
various software and service offerings. Our service offerings include business optimization and
technical consulting, managed services, training, solution maintenance, software upgrades and
software development. Supply chain management is the set of processes, technology and expertise
involved in managing supply, demand and fulfillment throughout divisions within a company and with
its customers, suppliers and partners. The business goals of our solutions include increasing
supply chain efficiency and enhancing customer and supplier relationships by managing variability,
reducing complexity, and improving operational visibility. Our offerings are designed to help
customers better achieve the following critical business objectives:
| Visibility a clear and unobstructed view up and down the supply chain | ||
| Planning supply chain optimization to match supply and demand while considering system-wide constraints | ||
| Collaboration interoperability with supply chain partners and elimination of functional silos | ||
| Control management of data and business processes across the extended supply chain |
Principles of Consolidation. The consolidated financial statements include the accounts
of i2 Technologies, Inc. and its wholly-owned subsidiaries. All inter-company balances and
transactions have been eliminated in consolidation.
Use of Estimates. Our consolidated financial statements have been prepared in accordance
with accounting principles generally accepted in the United States of America. The preparation of
these financial statements requires us to make estimates and judgments that affect the reported
amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets
and liabilities. On an ongoing basis, we evaluate our estimates, including those related to
revenue recognition, provision for doubtful accounts and sales returns, fair value of investments,
fair value of acquired intangible assets and goodwill, useful lives of intangible assets and
property and equipment, income taxes, restructuring obligations, fair value of stock options,
warrants and derivatives, and contingencies and litigation, among others. We base our estimates on
historical experience and on various other assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about the carrying values
of assets and liabilities that are not readily apparent from other sources. Actual results could
differ significantly from the estimates made by management with respect to these items and other
items that require managements estimates.
Cash and cash equivalents. Cash and cash equivalents include cash on hand, demand
deposits with financial institutions, short-term time deposits and other liquid investments in debt
securities with initial maturities of less than three months when acquired by us.
Restricted Cash. At December 31, 2009 restricted cash included $6.8 million pledged as
collateral for outstanding letters of credit and bank guarantees. At December 31, 2008, restricted
cash included $5.8 million pledged as collateral for outstanding letters of credit and bank
guarantees. We attempt to limit our restricted cash and cash balances held in foreign locations.
(See Note 6 Borrowings and Debt Issuance Costs)
8
Allowance for Doubtful Accounts. The allowance for doubtful accounts is a reserve established
through a provision for bad debts charged to expense and represents our best estimate of probable
losses resulting from non-payment of amounts recorded in the existing accounts receivable
portfolio. The allowance, in our judgment, is necessary to reserve for known and inherent
collection risks in the accounts receivable portfolio. In estimating the allowance for doubtful
accounts, we consider our historical write-off experience, accounts receivable aging reports, the
credit-worthiness of individual customers, economic conditions affecting specific customer
industries and general economic conditions, among other factors. Should any of these factors
change, our estimate of probable losses due to bad debts could also change, which could affect the
level of our future provisions for bad debts.
Financial Instruments. Financial assets that potentially subject us to a concentration
of credit risk consist principally of investments and accounts receivable. Cash on deposit is held
with financial institutions with high credit standings. Debt security investments are generally in
highly rated corporations and municipalities as well as agencies of the U.S. government. Our
customer base consists of large numbers of geographically diverse customers dispersed across many
industries. As a result, concentration of credit risk with respect to accounts receivable is not
significant. However, we periodically perform credit evaluations for most of our customers and
maintain reserves for potential losses. In certain situations we may require letters of credit to
be issued on behalf of some customers to mitigate our exposure to credit risk. We may also use
foreign exchange contracts to hedge the risk in receivables denominated in non-functional
currencies. Risk of non-performance by counterparties to such contracts is minimal due to the size
and credit standings of the financial institutions used. Additionally, the potential risk of loss
with any one party resulting from this type of credit risk is monitored and risks are also
mitigated by utilizing multiple counterparties.
Premises and Equipment. Premises and equipment are recorded at cost and are depreciated
over their useful lives ranging from three to seven years using the straight-line method.
Leasehold improvements are amortized over the shorter of the expected term of the lease or
estimated useful life.
Goodwill. We test goodwill for impairment once annually at December 31 or more
frequently if an event occurs or circumstances change that may indicate that the fair value of our
reporting unit is below its carrying value. Goodwill is tested for impairment using a two-step
approach. The first step is to compare the fair value of the reporting unit to its carrying
amount, including goodwill. If the fair value of the reporting unit is greater than its carrying
amount, goodwill is not considered impaired and the second step is not required. If the fair value
of the reporting unit is less than its carrying amount, the second step of the impairment test
measures the amount of the impairment loss, if any. The second step of the impairment test is to
compare the implied fair value of goodwill to its carrying amount. If the carrying amount of
goodwill exceeds its implied fair value, an impairment loss is recognized equal to that excess.
The implied fair value of goodwill is calculated in the same manner that goodwill is calculated in
a business combination, whereby the fair value of the reporting unit is allocated to all of the
assets and liabilities of that unit (including any unrecognized intangible assets) as if the
reporting unit had been acquired in a business combination and the fair value of the reporting unit
was the purchase price. The excess purchase price over the amounts assigned to assets and
liabilities would be the implied fair value of goodwill.
As stated above, we currently operate as a single segment and reporting unit and all of our
goodwill is associated with the entire company. Accordingly, we generally assume that the minimum
fair value of our single reporting unit is our market capitalization, which is the product of
(i) the number of shares of common stock issued and outstanding and (ii) the market price of our
common stock.
Goodwill totaled $16.7 million at December 31, 2009 and 2008. We performed impairment
tests on goodwill at December 31, 2009 and 2008, and determined there was no evidence of impairment
based on step one as described above.
Capitalized Research and Development Costs. Software development costs are expensed as
incurred until technological feasibility has been established, at which time such costs are
capitalized until the product is available for general release to customers. To date, the
establishment of technological feasibility of our products has coincided with the general release
of such software. As a result, we have not capitalized any such costs other than those recorded in
connection with our acquisitions.
9
Revenue Recognition. We derive revenues from licenses of our software and related services,
which include assistance in implementation, integration, customization, maintenance, training and
consulting. We recognize revenue for software and related services in accordance with Accounting
Standards Codification (ASC) 605 Revenue Recognition, Accounting for Certain Construction Type
and Certain Production Type Contracts, and ASC 965 Software, Software Revenue Recognition,with
Respect to Certain Transactions.
Software Solutions Revenue. Recognition of software solutions revenue occurs under
ASC 605 and under ASC 965.
Software solutions revenue recognized under ASC 605 includes both fees associated with
licensing of our products, as well as any fees received to deliver the licensed functionality (for
example, the provision of essential services). Essential services involve customizing or enhancing
the software so that the software performs in accordance with specific customer requirements.
Arrangements accounted for under ASC 605 follow either the percentage-of-completion method or the
completed contract method. The percentage-of-completion method is used when the required services
are quantifiable, based on the estimated number of labor hours necessary to complete the project,
and under that method revenues are recognized using labor hours incurred as the measure of progress
towards completion but is limited to revenue that has been earned by the attainment of any
milestones included in the contract. We do not capitalize costs associated with services performed
where milestones have not been attained. The completed contract method is used when the required
services are not quantifiable, and under that method, revenues are recognized only when we have
satisfied all of our product and/or service delivery obligations to the customer. Similar to the
treatment of milestones, we do not capitalize or defer costs associated with services performed on
contracts recognized under the completed contract method that have not been completed.
Under ASC 965, software license revenues are generally recognized upon delivery provided
persuasive evidence of an arrangement exists, fees are fixed or determinable and collection is
deemed probable. We evaluate each of these criteria as follows:
| Evidence of an arrangement: We consider a non-cancelable agreement signed by the customer to be evidence of an arrangement. | ||
| Delivery: Delivery is considered to occur when media containing the licensed programs is provided to a common carrier or, in the case of electronic delivery, the customer is given access to the licensed programs. Our typical end user license agreement does not include customer acceptance provisions. | ||
| Fixed or determinable fee: We consider the fee to be fixed or determinable if the fee is not subject to refund or adjustment and the payment terms are within our normal established practices. If the fee is not fixed or determinable, we recognize the revenue as amounts become due and payable. | ||
| Collection is deemed probable: We conduct a credit review for significant transactions at the time of the arrangement to determine the credit-worthiness of the customer. Collection is deemed probable if we expect that the customer will pay amounts under the arrangement as payments become due. If we determine that collection is not probable, we defer the revenue and recognize the revenue upon receipt of cash. Based on our collections history in certain countries, we apply a cash-basis recognition requirement for software solutions agreements in those countries. |
Revenue for software solution arrangements that include one or more additional elements (i.e.,
services and maintenance) to be delivered at a future date is generally recognized using the
residual method as set forth in ASC 965. Under the residual method, the fair value of the
undelivered element(s) is deferred, and the remaining portion of the arrangement fee is
recognized as license revenue. If fair values have not been established for the undelivered
10
element(s), all revenue associated with the arrangement is deferred until the earlier of the
point at which all element(s) have been delivered or the fair value of the undelivered elements has
been determined. Fair value for an individual element within an arrangement may be established
when that element, when contracted for separately, is priced in a consistent manner. Fair value
for our maintenance and consulting services has been established based on our maintenance renewal
rates and consulting billing rates, respectively. Arrangements that include a right to unspecified
future products are accounted for as subscriptions and recognized ratably over the term of the
arrangement. Software solution license fees from reseller arrangements are generally based on the
sublicenses granted by the reseller and recognized when the license is sold to the end customer.
Services Revenue. Services revenue is primarily derived from fees for services
that are not essential to the software, including implementation, integration, training and
consulting, and is generally recognized when services are performed. In addition, services revenue
may include fees received from arrangements to customize or enhance previously purchased licensed
software, when such services are not essential to the previously licensed software. Services
revenue also includes reimbursable expense revenue, with the related costs of reimbursable expenses
included in cost of services. Contractual terms may include the following payment arrangements:
fixed fee, full-time equivalent, milestone, and time and material. In order to recognize service
revenue, the following criteria must be met:
| Signed agreement: The agreement must be signed by the customer. | ||
| Fee is determinable: The signed agreement must specify the fees to be received for the services. | ||
| Delivery has occurred: Delivery is substantiated by time cards and, where applicable, supplemented by an acceptance from the customer that milestones as agreed in the statement of work have been met. | ||
| Collectability is probable: We conduct a credit review for significant transactions at the time of the engagement to determine the credit-worthiness of the customer. We monitor collections over the term of each project, and if a customer becomes delinquent, the revenue may be deferred. |
Maintenance Revenue. Maintenance revenue consists of fees generated by providing
support services, such as telephone support, and unspecified upgrades/enhancements on a when-and-if
available basis. A customer typically prepays maintenance and support fees for an initial period,
and the related revenue is deferred and generally recognized over the term of such initial period.
Maintenance is renewable by the customer on an annual basis thereafter. Rates for maintenance,
including subsequent renewal rates, are typically established based upon a specified percentage of
net license fees as set forth in the contract.
Contract Revenue. Contract revenue is the result of the recognition of certain
revenue that was carried on our balance sheet as a portion of deferred revenue and was a result of
our 2003 financial restatement. Inclusion of contract revenue in the evaluation of our performance
would skew comparisons of our periodic results since recognition of that revenue was based on
fulfillment of contractual obligations, which often required only minimal cash outlays and
generally did not involve any significant activity in the period of recognition. Additionally, the
cash associated with contract revenue had been collected in prior periods. All remaining contract
revenue was recognized by March 31, 2007, and it is not relevant to our on-going operations.
Royalties and Affiliate Commissions. Royalties paid for third-party software
products integrated with our technology are expensed when the products are shipped. Commissions
payable to affiliates in connection with sales assistance are generally expensed when the
commission becomes payable. Accrued royalties payable totaled $0.4 and $0.6 million at December
31, 2009 and 2008, respectively, while accrued affiliate commissions payable totaled $0.6 million
at December 31, 2009 and 2008.
11
Concurrent Transactions. We occasionally enter into transactions which are
concluded at or about the same time as other arrangements with the same customer. These concurrent
transactions are accounted for under ASC 845 Nonmonetary Transaction. Generally, the
recognition of a gain or loss on the exchange is measured based on the fair value of the assets
involved to the extent that the fair value can be reasonably determined. A transaction that is not
a culmination of the earnings process is recorded based on the net book value of the asset
relinquished.
Deferred Taxes. Deferred tax assets and liabilities represent estimated future tax
amounts attributable to the differences between the carrying amounts of assets and liabilities in
the consolidated financial statements and their respective tax bases. These estimates are computed
using the tax rates in effect for the applicable period. Realization of our deferred tax assets
is, for the most part, dependent upon our U.S. consolidated tax group of companies having
sufficient federal taxable income in future years to utilize our domestic net operating loss
carry-forwards before they expire. We adjust our deferred tax valuation allowance on a quarterly
basis in light of certain factors, including our financial performance.
Loss Contingencies. There are times when non-recurring events occur that require
management to consider whether an accrual for a loss contingency is appropriate. Accruals for loss
contingencies typically relate to certain legal proceedings, customer and other claims and
litigation. Accruals for loss contingencies are included in accrued legal litigation on our
consolidated balance sheet. As required by ASC 450 Contingencies, we determine whether an
accrual for a loss contingency is appropriate by assessing whether a loss is deemed probable and
can be reasonably estimated. We analyze our legal proceedings, warranty and other claims and
litigation based on available information to assess potential liability. We develop our views on
estimated losses in consultation with outside counsel handling our defense in these matters, which
involves an analysis of potential results assuming a combination of litigation and settlement
strategies. The adverse resolution of any one or more of these matters over and above the amounts
that have been estimated and accrued in the current consolidated financial statements could have a
material adverse effect on our business, results of operations, cash flow and financial condition.
Restructuring Charges. We recognize restructuring charges consistent with applicable
accounting standards. We reduce charges for obligations on leased properties with estimated
sublease income. Furthermore, we analyze current market conditions, including current lease rates
in the respective geographic regions, vacancy rates and costs associated with subleasing, when
evaluating the reasonableness of future sublease income. The accrual for office closure and
consolidation, recognized at the time a facility is vacated, is an estimate that assumes certain
facilities will be subleased or the underlying leases will otherwise be favorably terminated prior
to the contracted lease expiration date. Subjective judgments and estimates must be made and used
in calculating future sublease income.
Net Income Per Common Share. We calculate net income per common share in accordance with
ASC 260 Earnings per Share. ASC 260 provides guidance on how to determine whether a security
should be considered a participating security for purposes of computing earnings per share and how
earnings should be allocated to a participating security when using the two-class method for
computing earnings per share. We have determined that our redeemable preferred stock represents a
participating security because it has voting rights and, therefore, we have calculated basic net
income per common share consistent with the provisions of ASC 260 for all periods presented.
Diluted net income per common share includes (i) the dilutive effect of stock options, stock rights
and warrants granted using the treasury stock method, (ii) the effect of contingently issuable
shares earned during the period and (iii) shares issuable under the conversion feature of our
convertible notes and preferred stock using the if-converted method. A reconciliation of the
weighted-average shares used in calculating basic earnings per common share and the weighted
average common shares used in calculating diluted earnings per common share for 2009 and 2008 is
provided in Note 9 Stockholders Equity and Income Per Common Share.
Foreign Currency Translation. The functional currency for the majority of our foreign
subsidiaries is the local currency. Assets and liabilities are translated at exchange rates in
effect at the balance sheet date while income and expense amounts are translated at average
exchange rates during the period. The resulting foreign currency translation adjustments are
disclosed as a separate component of stockholders equity (deficit) and other comprehensive income.
The functional currency of one significant foreign subsidiary is the US dollar; therefore, there
is no translation adjustment required for this subsidiary. Transaction gains and losses arising
from transactions denominated in a non-functional currency and due to changes in exchange rates are
recorded in foreign currency hedge and transaction losses, net in our consolidated statements of
operations.
12
Fair Values of Financial Instruments. Fair values of financial instruments are estimated
using relevant market information and other assumptions. Fair value estimates involve
uncertainties and matters of significant judgment regarding interest rates, credit risk and other
factors, especially in the absence of broad markets for particular items. Changes in assumptions
or in market conditions could significantly affect the estimates. The estimated fair value
approximates carrying value for all financial instruments except investment securities. Fair
values of securities are based on quoted market prices or dealer quotes, if available. If a quoted
market price is not available, fair value is estimated using quoted market prices for similar
instruments.
Comprehensive Income. Comprehensive income includes all changes in equity during a
period, except those resulting from investments by and distributions to owners.
Recent Accounting Pronouncements. In May 2008, the Financial Accounting Standards Board
(FASB) issued a statement regarding Accounting for Convertible Debt Instruments That May Be
Settled in Cash Upon Conversion (Including Partial Cash Settlement) contained in ASC 470 Debt.
ASC 470 requires that the liability and equity components of convertible debt instruments that may
be settled in cash upon conversion (including partial cash settlement) be separately accounted for
in a manner that reflects an issuers nonconvertible debt borrowing rate. ASC 470 is effective for
financial statements issued for fiscal years beginning after December 15, 2008, and interim periods
within those fiscal years and shall be applied retrospectively to all periods presented. Early
adoption of ASC 470 was not permitted.
Our 5% Senior Convertible Notes (Notes) were within the scope of ASC 470. In the
accompanying condensed financial statements, we reported the debt component of the Notes at fair
value as of the date of issuance and amortized the discount as an increase to interest expense over
the expected life of the debt. The implementation of this standard resulted in a decrease to net
income and earnings per share for all prior periods presented; however, there is no effect on our
cash interest payments. The incremental non-cash expense associated with adoption for the twelve
months ended December 31, 2009, 2008 and 2007 was $0.3 million, $2.1 million and $2.1 million,
respectively, see Note 6, Borrowings and Debt Issuance Cost.
In March 2008, FASB issued a statement regarding, Disclosures about Derivative Instruments
and Hedging Activities contained in ASC 815 Derivatives and Hedging. ASC 815 applies to
non-derivative hedging instruments and all hedged items designated and qualifying as hedges ASC 815
is effective prospectively for financial statements issued for fiscal years and interim periods
beginning after November 15, 2008, with early application encouraged. The adoption of this
statement in the first quarter of 2009 did not have a material impact on the Companys financial
statements, see Note 7, Commitments and Contingencies.
In January 2009, the FASB issued a Staff Position regarding Determining Whether Instruments
Granted in Share-Based Payment Transactions Are Participating Securities contained in ASC 260
Earnings Per Share. Under ASC 260, unvested share-based payment awards which receive
non-forfeitable dividend rights, or dividend equivalents, are considered participating securities
and are required to be included in computing EPS under the two-class method. The adoption of this
provision in the twelve months ended 2009 had no effect on the Companys financial statements.
In April 2009, the FASB issued a statement concerning, Interim Disclosures about Fair Value
of Financial Instruments contained in ASC 270 Interim Reporting, which requires public entities
to disclose in their interim financial statements the fair value of all financial instruments, as
well as the method(s) and significant assumptions used to estimate the fair value of those
financial instruments. The Company has adopted the provisions of ASC 270. The adoption of ASC 270
had no impact on the Companys financial position or results of operations.
In May 2009, the FASB issued a statement regarding Subsequent Events contained in ASC 855
Subsequent Events. ASC 855 establishes general standards of accounting for and disclosure of events
that occur after the balance sheet date, but before financial statements are issued or are
available to be issued. ASC 855 requires disclosure of the date through which an entity has
evaluated subsequent events and the basis for that date. Accordingly, the Company adopted ASC 855
as of June 30, 2009 and for the period ended December 31, 2009 evaluated its financial statements
for subsequent events through May 24, 2010, date the financial statements were available to be
issued, see Note 16, Subsequent Events.
13
In August 2009, the FASB issued Accounting Standards Update (ASU) 2009-05, Measuring
Liabilities at Fair Value, to clarify how entities should estimate the fair values of liabilities
contained in ASC 820- Fair Value Measurements and Disclosures. This update provides clarifying
guidance for circumstances in which a quoted price in an active market is not available, the effect
of the existence of liability transfer restrictions and the effect of quoted prices for the
identical liability, including when the identical liability is traded as an asset. The amended
guidance in ASC 820 on measuring liabilities at fair value is effective for the first interim or
annual reporting period beginning after August 28, 2009, with earlier application permitted. The
Company is in the process of evaluating the impact ASU 2009-05 will have on its financial
statements and does not believe the amended guidance will have a significant effect on its
financial statements.
In October 2009, the FASB issued ASU 2009-13, Revenue Recognition Multiple Deliverable
Revenue Arrangements contained in ASC 605 Revenue Recognition. This update removes the
objective-and-reliable-evidence-of-fair-value criterion from the separation criteria used to
determine whether certain arrangements involving multiple deliverables contains more than one unit
of accounting and replaces references to fair value with selling price to distinguish from the
fair value measurements required under the Fair Value Measurements and Disclosures guidance.
The update also provides a hierarchy that entities must use to estimate the selling price,
eliminates the use of the residual method for allocation, and expands the ongoing disclosure
requirements for certain arrangements. This update is effective for the Company beginning January
1, 2011 and can be applied prospectively or retrospectively. Management is currently evaluating the
effect that adoption of ASU 2009-13 will have on the Company.
From time to time, new accounting pronouncements applicable to the Company are issued by the
FASB or other standards setting bodies, which we will adopt as of the specified effective date.
Unless otherwise discussed, we believe the impact of recently issued standards that are not yet
effective will not have a material impact on our consolidated financial statements upon adoption.
2. Other Non-Current Assets
Other non-current assets includes unamortized debt issuance costs, long-term lease deposits,
and acquired intangibles such as, software, information databases and installed customer
base/relationships.
We were required to adopt a FASB staff position contained in ASC 470 Debt regarding the
method to account for convertible debt instruments that may be settled in cash upon conversion
including partial cash settlement on January 1, 2009. ASC 470 requires that the liability and
equity components of convertible debt instruments that may be settled in cash upon conversion
(including partial cash settlement) be separately accounted for in a manner that reflects an
issuers nonconvertible debt borrowing rate. We also were required to reallocate our capitalized
debt issuance costs between cost of debt and cost of equity based on the relative values of the
debt and the conversion feature. The result of this change is to reduce the original balance of
capitalized debt issuance costs, as well as to reduce the amortization of such costs in each
historical period in which our Notes were outstanding. As of December 31, 2009, all Notes have
been repurchased, the majority of which occurred in the first quarter of 2009.
Other non-current assets include intangible assets that are evaluated for impairment in
accordance with ASC 360 Property, Plant, and Equipment. ASC 360 requires that we evaluate
long-lived assets for impairment whenever events or changes in circumstances indicate that the
carrying value of an asset may not be recoverable based on expected undiscounted cash flows
attributable to that asset. The amount of any impairment is measured as the difference between the
carrying value and the fair value of the impaired asset. Details of other non-current assets are
below:
December 31, | ||||||||
2009 | 2008 | |||||||
(as adjusted) | ||||||||
Unamortized debt issuance costs |
$ | | $ | 1,325 | ||||
Lease deposits |
3,889 | 3,674 | ||||||
Acquired intangibles |
| 25 | ||||||
Total |
$ | 3,889 | $ | 5,024 | ||||
14
3. Investment Securities
Short-term time deposits and other liquid investments in debt securities with original
maturities of less than three months when acquired are reported as cash and cash equivalents on our
condensed consolidated balance sheet. Based on their maturities, interest rate movements do not
affect the balance sheet valuation of these investments.
Historically, we have invested our cash in a variety of interest-earning financial
instruments, including bank time deposits, money market funds, taxable and tax-exempt
variable-rate, fixed-rate obligations of corporations, federal, state and local government
entities, and agencies. These investments are primarily denominated in U.S. Dollars.
Due to current economic volatility, we have elected to keep our cash balances in overnight
funds comprised of a combination of US Treasury and US government agency money market mutual funds
(MMMF). These MMMF have the stated goal of maintaining a net asset value of $1 per share and
their interest rate resets daily to achieve this goal. These MMMF are considered Level 1
securities because they are actively traded and they are valued on our consolidated balance sheets
at quoted market prices. The balances held as MMMF reported as cash and cash equivalents were
$195.0 million and $230.0 million as of December 31, 2009 and 2008, respectively. The balances
held as time deposits reported as cash and cash equivalents were $1.3 million and $1.8 million as
of December 31, 2009 and December 31, 2008, respectively. The remaining balances in cash and cash
equivalents were held in operating cash accounts.
4. Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable at December 31, 2009 and 2008 include billed receivables of
approximately $20.8 million and $24.7 million, respectively and unbilled receivables of
approximately $0.9 million and $1.2 million, respectively. Unbilled receivables relate to revenues
that have been recognized, but not invoiced. Such receivables are generally invoiced in the month
following recognition as revenue.
Activity in the allowance for doubtful accounts was as follows:
2009 | 2008 | |||||||
Balance at beginning of period |
$ | 391 | $ | 218 | ||||
Provision (credit) for bad debts charged to costs and expenses |
(19 | ) | 368 | |||||
Write-offs, net of recoveries and other adjustments |
76 | (195 | ) | |||||
Balance at end of period |
$ | 448 | $ | 391 | ||||
5. Premises and Equipment and Lease Commitments
Premises and equipment as of December 31, 2009 and 2008 consisted of the following:
2009 | 2008 | |||||||
Computer equipment and software |
$ | 26,457 | $ | 26,098 | ||||
Furniture and fixtures |
21,215 | 21,474 | ||||||
Leasehold improvements |
15,995 | 18,391 | ||||||
63,667 | 65,963 | |||||||
Less: Accumulated depreciation |
(60,393 | ) | (61,048 | ) | ||||
$ | 3,274 | $ | 4,915 | |||||
15
Depreciation of premises and equipment totaled $2.8 million in 2009, $3.4 million in 2008
and $4.5 million in 2007. Depreciation is calculated using the straight-line method. We disposed
of net premises and equipment totaling $0.3 million in 2009, $0.2 million in 2008 and $0.3 million
in 2007.
We lease our office facilities and certain office equipment under operating leases that
expire at various dates through 2011. We have renewal options for most of our operating leases.
We incurred total rent expense of $6.5 million in 2009, $9.2 million in 2008 and $9.1 million in
2007.
Future minimum lease payments under all non-cancellable operating leases, including
estimated sublease income of $0.9 million, as of December 31, 2009 are as follows:
2010 |
7,805 | |||
2011 |
5,620 | |||
2012 |
5,008 | |||
2013 |
4,102 | |||
2014 |
1,123 | |||
Thereafter |
37 | |||
Total |
$ | 23,695 | ||
6. Borrowings and Debt Issuance Costs
5% Senior Convertible Notes
The following table summarizes the outstanding debt and related capitalized debt issuance
costs recorded on our condensed consolidated balance sheet at December 31, 2009 and December 31,
2008.
December 31, | December 31, | |||||||
2009 | 2008 | |||||||
(as adjusted) | ||||||||
Senior convertible notes, 5% annual rate
payable semi-annually, due November 15, 2015 |
| 86,250 | ||||||
Unamortized discount on 5% notes |
| (21,730 | ) | |||||
Total debt, net |
$ | | $ | 64,520 | ||||
Capitalized debt issuance costs, net |
$ | | $ | 1,325 | ||||
We recorded capitalized debt issuance costs, net of accumulated amortization, in other
non-current assets and were amortizing these costs over a five-year period, beginning in November
2005.
We were required to adopt a FASB staff position contained in ASC 470 Debt regarding the
method to account for convertible debt instruments that may be settled in cash upon conversion
including partial cash settlement on January 1, 2009. ASC 470 requires that the liability and
equity components of convertible debt instruments that may be settled in cash upon conversion
(including partial cash settlement) be separately accounted for in a manner that reflects an
issuers nonconvertible debt borrowing rate. Based on our analysis of comparable nonconvertible
debt issuances by similar-sized technology companies at or near the time of our debt issuance, we
determined our borrowing rate would have been 9.5% for nonconvertible debt versus the stated 5%
coupon rate of the Notes.
Upon adoption, we allocated the original debt proceeds between debt and the debts
conversion feature based on the fair value of the liability component at issuance. This results in
the debt being recorded at a discount to its face value. This discount is amortized as additional
interest expense using the effective interest method over the 10-
16
year life of the debt, which
is the estimated life of a similar debt instrument without a related equity conversion feature. We
determined that absent the equity component, there were no other terms of the debt at the time of
its issuance that would have caused us to consider the life of the debt to be shorter than the
stated maturity of the debt. The effect on our financial statements is to record additional
non-cash interest expense in each historical period in which our Notes were outstanding. We also
were required to reallocate our capitalized debt issuance costs between cost of debt and cost of
equity based on the relative values of the debt and the conversion feature. The result of this
change is to reduce the original balance of capitalized debt issuance costs, as well as to reduce
the amortization of such costs in each historical period in which our Notes were outstanding. The
accompanying consolidated financial statements have been adjusted to reflect the net increase to
non-cash expense and balance sheet reclassifications.
Following is a summary of the effects of the adjustment described above (in thousands, except
per share data).
Condensed Consolidated Balance Sheet
As of December 31, 2008 | ||||||||||||
As Previously | ||||||||||||
Reported | Adjustment | As Adjusted | ||||||||||
Other non-current assets |
5,775 | (751 | ) | 5,024 | ||||||||
Total assets |
313,776 | (751 | ) | 313,025 | ||||||||
Total long-term debt, net |
85,084 | (20,564 | ) | 64,520 | ||||||||
Total liabilities |
183,710 | (20,564 | ) | 163,146 | ||||||||
Additional paid-in capital |
10,472,323 | 26,130 | 10,498,453 | |||||||||
Accumulated deficit |
(10,450,362 | ) | (6,317 | ) | (10,456,679 | ) |
Condensed Consolidated Statement of Operations and Comprehensive (Loss) Income
Twelve Months Ended | ||||||||||||||||||||||||
2008 | 2007 | |||||||||||||||||||||||
As Previously | As Previously | |||||||||||||||||||||||
Reported | Adjustment | As Adjusted | Reported | Adjustment | As Adjusted | |||||||||||||||||||
Non-operating income (expense), net: |
||||||||||||||||||||||||
Interest expense |
(4,947 | ) | (2,526 | ) | (7,473 | ) | (4,948 | ) | (2,424 | ) | (7,372 | ) | ||||||||||||
Other (expense) income, net |
11,114 | 396 | 11,510 | (1,134 | ) | 358 | (776 | ) | ||||||||||||||||
Total non-operating income (expense), net |
8,343 | (2,130 | ) | 6,213 | (1,272 | ) | (2,066 | ) | (3,338 | ) | ||||||||||||||
Income before income taxes |
118,186 | (2,130 | ) | 116,056 | 23,866 | (2,066 | ) | 21,800 | ||||||||||||||||
Net income |
109,804 | (2,130 | ) | 107,674 | 17,733 | (2,066 | ) | 15,667 | ||||||||||||||||
Net income applicable to common stockholders |
106,664 | (2,130 | ) | 104,534 | 14,662 | (2,066 | ) | 12,596 | ||||||||||||||||
Net income per common share applicable to common stockholders: |
||||||||||||||||||||||||
Basic |
$ | 4.05 | $ | (0.08 | ) | $ | 3.97 | $ | 0.57 | $ | (0.08 | ) | $ | 0.49 | ||||||||||
Diluted |
$ | 3.99 | $ | (0.08 | ) | $ | 3.91 | $ | 0.55 | $ | (0.08 | ) | $ | 0.47 | ||||||||||
Total comprehensive (loss) income |
98,210 | (2,130 | ) | 96,080 | 22,227 | (2,066 | ) | 20,161 |
Condensed Consolidated Statement of Cash Flows
Twelve Months Ended | ||||||||||||||||||||||||
2008 | 2007 | |||||||||||||||||||||||
As Previously | As Previously | |||||||||||||||||||||||
Reported | Adjustment | As Adjusted | Reported | Adjustment | As Adjusted | |||||||||||||||||||
Net income |
109,804 | (2,130 | ) | 107,674 | 17,733 | (2,066 | ) | 15,667 | ||||||||||||||||
Amortization of debt issuance expense |
1,086 | (396 | ) | 690 | 1,042 | (358 | ) | 684 | ||||||||||||||||
Debt discount accretion |
631 | 2,526 | 3,157 | 631 | 2,424 | 3,055 | ||||||||||||||||||
Net cash provided by operating activities |
114,543 | | 114,543 | 16,440 | | 16,440 |
As of December 31, 2009, all Notes have been repurchased, the majority of which occurred
in the first quarter of 2009. The total cash paid for the debt repurchase of $84.8 million was
allocated, based on the fair values of the liability component as required by ASC 470, $64.5
million to the repurchased debt and $20.3 million to the conversion feature included in equity.
17
The repurchase of the notes resulted in a loss on extinguishment of debt as follows:
Twelve months ended | ||||
December 31, 2009 | ||||
Face value of debt repurchased |
86,250 | |||
Unamortized discount |
(1,089 | ) | ||
Debt issuance costs |
(1,239 | ) | ||
Cash paid to repurchase debt |
(84,814 | ) | ||
Loss on extinguishment of debt |
(892 | ) |
In connection with the issuance of our 5% senior convertible notes, we issued 484,889 warrants
to purchase our common stock. We assessed the characteristics of the warrants and determined that
they should be included in additional paid in capital in the stockholders equity portion of our
condensed consolidated balance sheet, valued using a Black-Scholes model. The effect of recording
the warrants as equity was that the 5% senior convertible notes were recorded at an original
discount to their face value. The discount recorded was originally $3.1 million, and this discount
was being accreted through earnings over five years. We determined a five-year life to be
appropriate due to the conversion features of the 5% senior convertible notes and our assessment of
the probability that the debt would be converted prior to the scheduled maturity. All of the
warrants remain outstanding as of December 31, 2009.
Other
We issue letters of credit and collateralize those letters of credit with cash. As of
December 31, 2009 approximately $5.3 million in letters of credit were outstanding and
approximately $5.7 million in restricted cash was pledged as collateral. As of December 31, 2008,
$4.0 million in letters of credit were outstanding and approximately $4.9 million in restricted
cash was pledged as collateral.
7. Commitments and Contingencies
Derivative Action
On October 23, 2007, a purported shareholder derivative lawsuit was filed in the Delaware
Chancery Court against certain of our current and former officers and directors, naming the Company
as a nominal defendant. The complaint, originally entitled John McPadden, Sr. v. Sanjiv S. Sidhu,
Stephen Bradley, Harvey B. Cash, Richard L. Clemmer, Michael E. McGrath, Lloyd G. Waterhouse,
Jackson L. Wilson, Jr., Robert L. Crandall and Anthony Dubreville and i2 Technologies, Inc.,
alleges breach of fiduciary duty and unjust enrichment based upon allegations that the Company sold
its wholly-owned subsidiary, Trade Services Corporation, for an inadequate price in 2005. Since the
filing of the complaint, Eugene Singer has been substituted for John McPadden as plaintiff. The
defendants moved to dismiss the complaint on December 28, 2007. On August 29, 2008, the court
granted the motion to dismiss as to all defendants but Mr. Dubreville (one of our former officers).
The complaint, derivative in nature, does not seek relief from the Company, but does seek damages
and other relief from the sole remaining defendant, Mr. Dubreville. On June 23, 2009, a related
derivative action was filed in the Superior Court for the State of California, County of San Diego,
styled Eugene Singer v. Sunrise Ventures, LLC; James A. Simpson; Trade Service Holdings LLC; Trade
Service Holdings, Inc.; Steven Borgardt; (Named Defendants) and Does 1-50; and i2 Technologies,
Inc as a nominal defendant. This action purports to arise out of the same set of facts as the
aforementioned Singer v. Dubreville action pending in Delaware, and asserts a claim for aiding and
abetting breach of fiduciary duty. The complaint, derivative in nature, does not seek relief from
the Company, but does seek damages and other relief from the Named Defendants.
Proprietary Rights and Licenses SAP
On June 23, 2008, we entered into a settlement agreement to settle existing patent litigation
with the SAP companies. Under the terms of the settlement agreement, each party licensed to the
other party certain patents in exchange for a one-time cash payment to i2 of $83.3 million, which
was received in the third quarter of 2008. In
18
addition, each party agreed not to pursue legal action against the other party for its actions
taken to enforce any of the licensed patents prior to the effective date of the agreement. As part
of the settlement agreement, SAP received rights to all of the Companys patents issued and patent
applications filed as of the effective date of the settlement. The agreement also provides for
general releases, indemnification for its violation, and dismisses the existing litigations between
the parties with prejudice. The agreement also contains certain limitations on the patent licenses
in the event of a change in control. We have satisfied all our obligations under the agreement and
no additional contingencies exist. Consideration was made in regards to the bifurcation of the
proceeds among the various elements of the settlement agreement by reviewing the nature of both the
patent rights received as well as the covenant not to sue. We determined that the patent licenses
we received in the settlement have no significant value. Due to the fact all obligations of the
agreement were met as of the agreement date, allocation of value among deliverables was not
necessary.
During the twelve months ended December 31, 2008, we recorded $79.9 million as intellectual
property settlement, net; representing the cash payment received by us of $83.3 million net of
directly related external litigation expenses of $3.5 million.
Shareholder Class Action Lawsuits
On August 11, 2008, two suits were filed in state district court in Texas against (among
others) the Company and certain members of its Board of Directors. Each of the two suits sought
injunctive relief prohibiting the closing of the sale of the Companys common stock to an affiliate
of JDA Software Group, Inc. (JDA), and each of the named plaintiffs purported to represent a
class of holders of the Companys common stock. One of the two suits was thereafter dismissed by
the plaintiff; the other, styled John D. Norsworthy, on Behalf of Himself and All Others Similarly
Situated, v. i2 Technologies, Inc., et al., remained pending in the 134th District Court of Dallas
County, Texas. On November 5, 2008, the District Court held a hearing on Plaintiff Norsworthys
motion for a temporary restraining order, and at the conclusion of the hearing denied the motion in
its entirety. On May 29, 2009, Mr. Norsworthy non-suited this action as to all defendants.
Oracle Litigation
On April 29, 2009, the Company filed a lawsuit for patent infringement against Oracle
Corporation (NASDAQ: ORCL). The lawsuit, filed in the United States District Court for the Eastern
District of Texas, alleges infringement of 11 patents related to supply chain management, available
to promise software and other enterprise software applications. We incurred expenses related to
this matter of $0.9 million for the twelve months ended December 31, 2009.
Indemnification Agreements
We have indemnification agreements with certain of our officers, directors and employees that
may require us, among other things, to indemnify such officers, directors and employees against
certain liabilities that may arise by reason of their status or service as directors, officers or
employees and to advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified. We have also entered into agreements regarding the advancement of
costs with certain other officers and employees.
We may continue to advance fees and expenses incurred by certain current and former directors,
officers and employees in the future. The maximum potential amount of future payments we could be
required to make under these indemnification and cost-advancement agreements is unlimited.
Additionally, our corporate by-laws allow us to choose to indemnify any employee for certain events
or occurrences while the employee is, or was, serving at our request in such capacity. We
incurred $0.2 million, $0.0 million and $0.2 million of expenses during the twelve months ended
December 31, 2009, 2008 and 2007, respectively.
Under the terms of our software license agreements with our customers, we agree that in the
event the licensed software infringes upon any patent, copyright, trademark, or any other
proprietary right of a third-party, we will indemnify our customer licensees against any loss,
expense, or liability from any damages that may be awarded against our customer. We include this
infringement indemnification in substantially all of our software license
19
agreements and selected managed service arrangements. In the event the customer cannot use the
software or service due to infringement and we cannot obtain the right to use, replace or modify
the software or service in a commercially feasible manner so that it no longer infringes, then we
may terminate the license and provide the customer a pro-rata refund of the fees paid by the
customer for the infringing software or service. We believe the estimated fair value of these
intellectual property indemnification clauses is minimal.
India Tax Assessments
We currently are under income tax examinations in India primarily related to our intercompany
pricing for services rendered by our Indian subsidiary to other i2 companies, the taxability of
certain payments received from our Indian customers, and our statutory qualification for a tax
holiday. The tax authorities have assessed an aggregate of approximately $9.6 million for the
Indian statutory fiscal years ended March 31, 2002 through March 31, 2006.
We believe the Indian tax authorities positions regarding these matters to be without merit,
that all intercompany transactions were conducted at arms length pricing levels, all payments
received from our Indian customers have been properly treated for tax purposes, and that our
operations qualify for the tax holiday claimed. Accordingly, we appealed all of these assessments
and sought assistance from the United States competent authority under the mutual agreement
procedure of the income tax treaty between the United States and the Republic of India. This
provides us with an opportunity to resolve these matters in a forum that includes governmental
representatives of both countries.
Pending resolution of these matters, we have paid approximately $3.2 million of the assessed
amount and have arranged for $4.7 million in bank guarantees in favor of the Indian government in
respect of a portion of the balance as required. The bank guarantees are supported by letters of
credit issued in the United States. Cash that is collateralizing these letters of credit is
reflected on our condensed consolidated balance sheet as restricted cash.
We expect subsequent tax years to be examined, assessments made similar to those discussed
above, and no assurances can be given that these issues ultimately will be resolved in our favor.
We continue to monitor and assess these issues as they progress through the relevant processes and
believe that the ultimate resolution of these matters will not exceed the tax contingency reserves
we have established for them.
Derivative Financial Instruments
On January 1, 2009, we adopted a FASB statement related to Disclosures about Derivative
Instruments and Hedging Activities, contained in ASC 815 Derivatives and Hedging. The adoption
of the statement had no financial impact on our consolidated financial statements and only required
additional financial statement disclosures. We have applied the requirements of ASC 815 on a
prospective basis. Accordingly, disclosures related to interim periods prior to the date of
adoption have not been presented.
The Company utilizes a foreign currency risk mitigation program that uses foreign currency
forward exchange contracts (Contracts) to economically reduce exposure to various amounts
denominated in nonfunctional currencies. These foreign currency exposures typically arise from
intercompany transactions, cash balances and accounts receivable held in non-functional currencies.
The objective of this program is to reduce the effect of changes in foreign currency exchange
rates on our results of operations. Although the Company does not designate these Contracts as
hedges for accounting purposes, the objective of the program is to offset foreign currency
transaction gains and losses recorded for accounting purposes with gains and losses realized on the
Contracts.
Our Contracts generally settle within 30 days, maturing at month end. We do not use these
forward contracts for trading purposes. We do not designate these forward contracts as hedging
instruments pursuant to ASC 815. Accordingly, we record the fair value of these contracts as of the
end of our reporting period to our consolidated balance sheet with changes in fair value recorded
in our consolidated statement of operations. The balance sheet classification for the fair values
of these forward contracts is to other current assets for unrealized gains and to accrued
liabilities for unrealized losses. The statement of operations classification for the fair values
of these forward contracts is to other income (expense), net, for both realized and unrealized
gains and losses.
20
The tables below summarize the Companys outstanding forward contracts held in USD
functional currency.
December 31, 2009 | December 31, 2008 | |||||||||||||||
Estimated | Estimated | |||||||||||||||
Notional | Fair Value* | Notional | Fair Value* | |||||||||||||
Commitments to purchase foreign currency |
$ | 36,087 | $ | | $ | 41,399 | $ | | ||||||||
Commitments to sell foreign currency |
674 | | 1,133 | | ||||||||||||
Total |
$ | 36,761 | $ | | $ | 42,532 | $ | |
Amount of Gain (Loss) Recognized in Income | ||||||||||||||||||||||||||||
Three Months Ended | Twelve Months Ended | |||||||||||||||||||||||||||
December 31, | December 31, | |||||||||||||||||||||||||||
Derivatives Not Designated as | ||||||||||||||||||||||||||||
Hedging Instruments | Classification | 2009 | 2008 | 2007 | 2009 | 2008 | 2007 | |||||||||||||||||||||
Foreign Currency Forward Contracts |
Other Income(Expense) | $ | 139 | $ | 2,718 | $ | (296 | ) | $ | 357 | $ | (7,645 | ) | $ | 3,599 |
* | Estimated fair value is zero due to contracts maturing at end of reporting period. |
Certain Accruals
We have accrued for estimated losses in the accompanying consolidated financial statements for
matters where we believe the likelihood of an adverse outcome is probable and the amount of the
loss is reasonably estimable.
We are subject to various claims and legal proceedings that arise in the ordinary course of
our business from time to time, including claims and legal proceedings that have been asserted
against us by former employees and certain customers, and have been in negotiations to settle
certain of those contingencies. The adverse resolution of any one or more of those matters or the
matters described above, over and above the amount, if any, that has been estimated and accrued in
our condensed consolidated financial statements could have a material adverse effect on our
business, financial condition, results of operations and/or cash flows.
8. Stock Transactions
On June 28, 2005 we entered into a Common Stock Purchase Agreement with R2 Investments,
LDC, an affiliate of Q Investments. Pursuant to the terms and conditions of the Purchase
Agreement, R2 purchased 1,923,077 shares of i2s common stock, par value $0.00025 per share, at
$7.80 per share, the closing price on June 23, 2005 when the transaction was approved by i2s Board
of Directors. The sale resulted in proceeds of $14.9 million after issuance costs of approximately
$0.1 million.
On June 3, 2004, we sold 100,000 shares of our 2.5% Series B Convertible Preferred Stock to
Amalgamated Gadget, L.P. for and on behalf or R2 Investments, LDC or its subsidiary R2 Top Hat,
Ltd. (collectively R2), pursuant to a Preferred Stock Purchase Agreement, dated April 27, 2004.
The purchase price for the Series B preferred stock was $1,000 per Series B share, or $100.0
million in the aggregate. Pursuant to the terms of the Preferred Stock Purchase Agreement, R2 had
certain preemptive rights upon the issuance of certain of our securities during the three-year
period ended June 3, 2007. Dividends on the Series B preferred stock, which may be paid in cash or
in additional shares of Series B preferred stock, at our option, are payable semi-annually at the
rate of 2.5% per year. The Series B preferred stock will automatically convert into shares of our
common stock on June 3, 2014 and will be convertible into shares of common stock at the option of
the holder at any time prior thereto. The conversion price of $23.15 per share is subject to
certain adjustments. If we were entitled to effect a conversion we would issue approximately
4.8 million shares in 2009 and approximately 4.7 million shares in 2008, with a value of
approximately $91.4 million at December 31, 2009 and approximately $30.2 million at December 31,
2008. Under certain circumstances, we will also have the right to redeem the Series B preferred
stock. Upon a change in control,
21
unless otherwise agreed to by holders of a majority of
outstanding Series B shares, we will be required to exchange the outstanding shares of Series B
preferred stock for cash at 110% of face value plus all accrued but unpaid dividends. The exchange
amount pursuant to this provision as of December 31, 2009 would be approximately $121.7 million and
as of December 31, 2008 would be approximately $120.2 million. Upon the change in control
discussed in Note 16 Subsequent Events, we paid $121.7 million in exchange for the outstanding
shares of Series B preferred stock plus $0.2 million in accrued but unpaid dividends. We may, at
our option, redeem the Series B shares at any time after June 3, 2008 for cash at 104% of face
value plus all accrued but unpaid dividends. The redemption amount pursuant to this provision as
of December 31, 2009 would be approximately $115.1 million and as of December 31, 2008 would be
$113.7 million. The Series B preferred stock is recorded net of $4.7 million of issuance costs,
consisting of legal and investment-banking fees incurred to complete the transaction. The issuance
costs are being accreted over a ten-year period through the date of automatic conversion. In 2009,
2008 and 2007 we recorded issuance cost accretion of
approximately $0.4 million per year, and issued 1,355 shares or $1.4 million, 2,689 shares or
$2.7 million, and 1,327 shares or $1.3 million, respectively, of our Series B preferred stock as
payment of our dividend to R2 Investments, LDC. In 2009 and 2007 we also paid a cash dividend of
$1.4 million and $1.3 million, respectively on our Series B preferred stock. Subsequent to this
transaction, R2 became a related party.
9. Stockholders Equity and Income Per Common Share
Stock Rights Plan. On January 17, 2002, our Board of Directors approved adoption of a
stockholder rights plan and declared a dividend of one preferred share purchase right for each
outstanding share of common stock. After adjusting for the 1-for-25 reverse stock split we
implemented on February 16, 2005, each share of common stock has attached to it one right to
purchase 25 units of one one-thousandth of a share of Series A junior participating preferred stock
at a price of $75.00 per unit. The rights, which expire on January 17, 2012, will only become
exercisable upon distribution. Distribution of the rights will not occur until ten days after the
earlier of (i) the public announcement that a person or group has acquired beneficial ownership of
15.0% or more of our outstanding common stock or (ii) the commencement of, or announcement of an
intention to make, a tender offer or exchange offer that would result in a person or group
acquiring the beneficial ownership of 15.0% or more of our outstanding common stock.
The purchase price payable, and the number of units of Series A preferred stock issuable,
upon exercise of the rights are subject to adjustment from time to time to prevent dilution in the
event of a stock dividend or the grant of certain rights to purchase units of Series A preferred
stock at a price less than the then current market price of the units of Series A preferred stock,
among other things. The number of outstanding rights and the number of units of Series A preferred
stock issuable upon exercise of each right are also subject to adjustment in the event of a stock
split of the common stock or a stock dividend on the common stock payable in common stock prior to
the distribution date.
Shares of Series A preferred stock purchasable upon exercise of the rights are not
redeemable. Each share of Series A preferred stock will be entitled to a dividend of 40 times the
dividend declared per share of common stock. In the event of liquidation, each share of Series A
preferred stock will be entitled to a payment of the greater of (i) 40 times the payment made per
share of common stock or (ii) $1,000. Each share of Series A preferred stock will have 40 votes,
voting together with the common stock. Finally, in the event of any merger, consolidation or other
transaction in which shares of common stock are exchanged, each share of Series A preferred stock
will be entitled to receive 40 times the amount received per share of common stock. These rights
are protected by customary anti-dilution provisions. Because of the nature of the dividend,
liquidation and voting rights, the value of the 25 units of Series A preferred stock purchasable
upon exercise of each right should approximate the value of one share of common stock.
If, after the rights become exercisable, we are acquired in a merger or other business
combination transaction, or 50% or more of our consolidated assets or earnings power are sold,
proper provision will be made so that each holder of a right will thereafter have the right to
receive upon exercise that number of shares of common stock of the acquiring company having a
market value of two times the exercise price of the right.
If any person or group becomes the beneficial owner of 15.0% or more of the
outstanding shares of common stock, proper provision will be made so that each holder of a right,
other than rights beneficially owned by the
22
acquiring person (which will thereafter be void), will
have the right to receive upon exercise that number of shares of common stock or units of Series A
preferred stock (or cash, other securities or property) having a market value of two times the
exercise price of the right.
We may redeem the rights in whole, but not in part, at a price of $0.25 per right at the
sole discretion of our Board of Directors at any time prior to distribution of the rights. At
December 31, 2009 and December 31, 2008, none of the rights had been exercisable. The terms of the
rights may be amended by our Board of Directors without the consent of the holders of the rights
except that after the distribution of the rights, no amendment may adversely affect the interests
of the holders of the rights and the consent of the holders of the shares of Series B preferred
stock is required. Until a right is exercised, the holder of a right will have no rights by virtue
of ownership as a stockholder of the company, including, without limitation, the right to vote or
to receive dividends.
The rights have significant anti-takeover effects by causing substantial dilution to a person
or group that attempts to acquire us on terms not approved by our Board of Directors. The rights
should not interfere with any merger, or other business combination approved by the Board of
Directors and the holders of the shares of Series B preferred stock. The rights may be redeemed by
us at the redemption price of $0.25 per right prior to the occurrence of a distribution date.
Net Income Per Common Share. Basic net income per common share was computed by dividing
net income applicable to common stockholders by the weighted average number of common shares
outstanding for the reporting period following the two-class method. Our Series B Convertible
Preferred Stock is a participating security because in the event dividends are declared on our
common stock it participates in those dividends on a 1:1 ratio on an as-converted basis. Under the
two-class method, participating convertible securities are required to be included in the
calculation of basic net income per common share when the
effect is dilutive. Accordingly, for the periods presented, the effect of the convertible
preferred stock is included in the calculation of basic net income per common share. We present our
Earnings Per Share (EPS) calculation combined for common and preferred stock under the two-class
method due to the fact the calculation yields the same result as if presented separately.
Diluted net income per common share includes the dilutive effect of stock options, share
rights awards, and warrants granted using the treasury stock method, and the effect of contingently
issuable shares earned during the period and shares issuable under the conversion feature of our
convertible preferred stock using the two-class method. A loss causes all common stock equivalents
to be anti-dilutive due to an increase of the weighted average shares from the potential dilution
that could occur if securities or other contracts were exercised or converted into common stock.
ASC 260 Earnings Per Share requires the inclusion of the effect of contingently convertible
instruments in the calculation of diluted income per share including when the market price of our
common stock is below the conversion price of the convertible security and the effect is not
anti-dilutive. Accordingly, the effect of our convertible preferred stock is included in basic
earnings per share under the two-class method per ASC 260; therefore, it is similarly included in
diluted income per share when the effect is dilutive.
The following is a reconciliation of the number of shares used in the calculation of basic net
income per common share under the two-class method and diluted earnings per share and the number of
anti-dilutive shares excluded from such computations for 2009, 2008 and 2007.
23
December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
Common and common equivalent shares outstanding using
two-class method basic: |
||||||||||||
Weighted average common shares outstanding |
22,337 | 21,619 | 21,268 | |||||||||
Unissued vested RSUs to be included in basic |
40 | 80 | | |||||||||
Participating convertible preferred stock |
4,751 | 4,634 | 4,548 | |||||||||
Total common and common equivalent shares outstanding using
two-class method basic |
27,128 | 26,333 | 25,816 | |||||||||
Effect of dilutive securities: |
||||||||||||
Outstanding stock option and share right awards |
398 | 378 | 840 | |||||||||
Warrants associated with 5% debt |
| 92 | ||||||||||
Weighted average common and common equivalent shares
outstanding diluted |
27,526 | 26,711 | 26,748 | |||||||||
Anti-dilutive shares excluded from calculation: |
||||||||||||
Outstanding stock option and share right awards |
1,488 | 2,988 | 1,906 | |||||||||
Convertible debt |
| | 736 | |||||||||
Total anti-dilutive shares excluded from calculation |
1,488 | 2,988 | 2,642 | |||||||||
10. Stock Compensation Expense and 401k Plans.
401k Company Match. The company provides a 100% match on the first 3% of the employee
contribution. During 2009, 2008 and 2007 we had expense related to the employee match of
approximately $1.4 million, $1.5 million and $1.0 million, respectively.
1995 Stock Option/Stock Issuance Plan. The 1995 Stock Option/Stock Issuance Plan, a
stockholder approved stock-based compensation plan, replaced our original 1992 Stock Plan. All
options outstanding under the 1992 Plan were incorporated into the 1995 Plan; however, all
outstanding options under the 1992 Plan continue to be governed by the terms and conditions of the
existing option agreements for those options. The 1995 Plan is divided into three equity programs:
(i) the Discretionary Grant Program, (ii) the Stock Issuance Program and (iii) the Automatic Grant
Program.
The Discretionary Grant Program provides for the grant of stock appreciation rights and
incentive stock options to employees and for the grant of stock appreciation rights and
nonqualified stock options to employees, directors and consultants. Exercise prices may not be
less than 100% and 85% of the fair market value per share of our common stock on the date of grant
for incentive options and nonqualified stock options, respectively. Options granted under this
program generally expire ten years after the date of grant. Prior to March 2001, options granted
under the Discretionary Option Grant Program generally vested in four equal annual increments.
Options granted after March 2001 generally vest 1% on the date of grant, 24% on the first
anniversary of the grant date and the remaining options vest in 36 equal monthly increments
thereafter. Some options granted
under the Discretionary Option Grant Program may be immediately exercisable, subject to a
right of repurchase at the original exercise price for all unvested shares.
The Stock Issuance Program provides for the issuance of shares of our common stock to any
person at any time, at such prices and on such terms as established by the plan administrator. The
purchase price per share cannot be less than 85% of the fair market value of our common stock on
the issuance date. Shares of our common stock may also be issued pursuant to share right awards,
restricted stock units and restricted stock awards that entitle the recipients to receive those
shares upon the attainment of designated performance goals or the satisfaction of specified service
requirements.
24
Effective with the 2007 Annual Meeting of Stockholders, the Automatic Grant Program provides
that each person who is first elected or appointed as a non-employee member of our Board of
Directors shall automatically be granted an award with a value equal to $175,000; with 50% of the
value (or $87,500) in the form of an option grant issued at the fair market value on the date of
grant, and the remaining value (or $87,500) in the form of a restricted stock award. On the date
of each Annual Meeting of Stockholders, and provided that the individual has served as a
non-employee Board member for at least six (6) months prior to the date of the Annual Meeting of
Stockholders, will automatically be granted an award with a value equal to $125,000; with 50% of
the value (or $62,500) in the form of an option grant issued at the fair market value on the date
of grant, and the remaining value (or $62,500) in the form of a restricted stock award. Options
granted to eligible non-employee Board members under the Automatic Option Grant Program vest in
three equal annual installments, with the first such installment vesting one year from the option
grant date.
The 1995 Plan has an automatic share increase feature whereby the number of shares of our
common stock reserved for issuance under the plan will automatically increase on the first trading
day of January each calendar year by an amount equal to 5.0% of the sum of (a) the total number of
shares of our common stock outstanding on the last trading day in December of the immediately
preceding calendar year, plus (b) the total number of shares of our common stock repurchased by us
on the open market during the immediately preceding calendar year pursuant to a stock repurchase
program. In no event shall any such annual increase exceed 1,600,000 shares of our common stock or
such lesser number of shares of our common stock as determined by our Board of Directors in its
discretion. Through December 31, 2009, we have reserved a total of 12,906,610 shares of our common
stock for issuance under the plan. The number of shares for which an individual may receive
options, stock appreciation rights and other stock-based awards in his or her initial year of hire
is limited to 1,000,000. Unless extended or terminated earlier, the plan will terminate on
October 14, 2014.
2001 Non-officer Stock Option/Stock Issuance Plan. In March 2001, the Board of Directors
adopted the 2001 Non-officer Stock Option/Stock Issuance Plan. Based on the provisions of the
2001 Plan, its adoption did not require stockholder approval and accordingly such approval was not
obtained. Under the provisions of this plan, 800,000 shares have been reserved for issuance. The
2001 Plan is divided into two equity programs: (i) the Discretionary Option Grant Program and
(ii) the Stock Issuance Program.
The Discretionary Option Grant Program provides for the grant of nonqualified stock options to
non-officer employees and consultants. Exercise prices may be less than, equal to or greater than
the fair market value per share of our common stock on the date of grant. Options granted under
this program generally expire ten years after the date of grant. Prior to March 2001, options
granted under the Discretionary Option Grant Program generally vested 25% on the first anniversary
of the grant date with the remaining options vesting in 36 equal monthly increments. Options
granted after March 2001 generally vest 1% on the date of grant, 24% on the first anniversary of
the grant date and the remaining options vest in 36 equal monthly increments thereafter. Some
options granted under the Discretionary Option Grant Program may be immediately exercisable,
subject to a right of repurchase at the original exercise price for all unvested shares.
The Stock Issuance Program provides for the issuance of shares of our common stock to
non-officer employees and consultants at any time, at such prices and on such terms as established
by the plan administrator. Shares of our common stock may also be issued pursuant to share right
awards that entitle the recipients to receive those shares upon the attainment of designated
performance goals or the satisfaction of specified service requirements.
Assumed Stock Option Plans. We have assumed the stock option plans of various companies we
have acquired. While our stockholders approved some of the acquisitions, our stockholders have not
specifically approved any of the assumed stock option plans. Approximately 1,500,000 shares of our
common stock have been reserved for issuance under the assumed plans.
Modification of Stock Options Granted to our Former CEO. On December 21, 2006, we entered
into an amendment to the employment agreement with our then CEO, Michael McGrath, to modify the
period during which Mr. McGraths vested equity instruments are exercisable following a termination
of Mr. McGraths employment resulting from death or disability, a voluntary termination or a
termination without cause. Mr. McGrath resigned July 31, 2007 and under the terms of this
modification, he had until December 31, 2008 to exercise his vested options. Notwithstanding the
foregoing, any equity instrument shall be cancelled and no longer exercisable upon the expiration
of the stated term of such equity instrument. In connection with the amended
employment agreement, we
25
recorded non-cash stock option expense of $1.3 million in December
2006 and recorded an additional $0.5 million during the first half of 2007.
Exchange of Stock Options for Restricted Stock Units. In April 2006, we announced that we
filed an exchange offer with the SEC under which eligible employees had the opportunity to exchange
certain stock options for restricted stock units. We offered to exchange restricted stock units
for outstanding options with exercise prices per share equal to or greater than $45.00. The number
of restricted stock units issued in exchange for a properly tendered eligible option was based on
exchange ratios that depended on the exercise price of the tendered option. The exchange ratios
represented the number of option shares to be exchanged for one restricted stock unit and ranged
from 5-for-1 to 72-for-1. The exchange offer expired on May 31, 2006; 797 employees were eligible
to participate and 549 employees participated, 1,033,498 options were tendered and cancelled, and
133,033 restricted stock units were issued under such exchange offer. For the years ended December
31, 2009, 2008 and 2007, we recorded $0.0 million, $0.3 million and $0.8 million, respectively, of
expense related to the amortization of the grant date fair value of options subject to exchange and
the restricted stock units issued.
Stock Based Compensation. The Company accounts for share-based compensation under the
provisions of ASC 718. In accordance with this guidance the estimated fair value of share based
awards granted under stock incentive plans are recognized as compensation expense over the vesting
period.
We elected to apply the simplified method to determine the hypothetical additional paid-in
capital (APIC) pool provided by ASC 718, Transition Election Related to Accounting for the Tax
Effects of Share-Based Payment Awards. There was no effect on our financial statements from
making this election. Since we have significant tax net operating loss carryforwards, any excess
tax benefit will not be realized until the period in with the losses have been fully utilized and
the benefit reduces income taxes payable. In the event of a shortfall (i.e., the tax benefit
realized is less than the amount previously recognized through periodic stock compensation expense
recognition and related deferred tax accounting), the shortfall would be charged against APIC to
the extent of previous excess benefits, if any, including the hypothetical APIC pool, and then to
income tax expense. During 2006, the shortfalls had no net impact on income tax expense because of
our valuation allowance. We intend to settle our stock-based awards with new shares.
We calculate our stock-based compensation expense on a straight-line basis over the vesting
periods of the related options. The table below shows the allocation on our Statements of
Operations of our total stock-based compensation expense. Due to our net operating losses, there
was no tax expense or benefit recorded in connection with our stock-based compensation.
Year Ended | ||||||||||||||||||||||||||||||||||||
December 31, 2009 | December 31, 2008 | December 31, 2007 | ||||||||||||||||||||||||||||||||||
Restricted | Restricted | Restricted | ||||||||||||||||||||||||||||||||||
Option | Stock | Total | Option | Stock | Total | Option | Stock | Total | ||||||||||||||||||||||||||||
Expense | Expense | Expense | Expense | Expense | Expense | Expense | Expense | Expense | ||||||||||||||||||||||||||||
Services |
$ | 361 | $ | 303 | $ | 664 | $ | 1,040 | $ | 510 | $ | 1,550 | $ | 1,785 | $ | 467 | $ | 2,252 | ||||||||||||||||||
Maintenance |
102 | 64 | $ | 166 | 157 | 74 | 231 | 212 | 40 | 252 | ||||||||||||||||||||||||||
Sales and marketing |
1,463 | 914 | $ | 2,377 | 1,877 | 1,106 | 2,983 | 2,044 | 743 | 2,787 | ||||||||||||||||||||||||||
Research and development |
1,170 | 520 | $ | 1,690 | 1,851 | 641 | 2,492 | 2,465 | 564 | 3,029 | ||||||||||||||||||||||||||
General and administrative |
1,739 | 2,788 | $ | 4,527 | 4,018 | 2,411 | 6,429 | 3,335 | 733 | 4,068 | ||||||||||||||||||||||||||
Total |
$ | 4,835 | $ | 4,589 | $ | 9,424 | $ | 8,943 | $ | 4,742 | $ | 13,685 | $ | 9,841 | $ | 2,547 | $ | 12,388 | ||||||||||||||||||
Fair values of stock options and employee stock purchase plan (ESPP) shares are estimated
at the date of grant using the Black-Scholes option-pricing model with the following
weighted-average assumptions:
26
Stock Options | ESPP | |||||||||||||||||||||||
Year Ended | Year Ended | |||||||||||||||||||||||
December 31, | December 31, | |||||||||||||||||||||||
2009 | 2008 | 2007 | 2009 | 2008 | 2007 | |||||||||||||||||||
Expected term (years) |
4 | 4 | 4 | n/a | n/a | 0.5 | ||||||||||||||||||
Volatility factor |
0.65 | 0.67 | 0.81 | n/a | n/a | 0.32 | ||||||||||||||||||
Risk-free interest rate |
1.97 | % | 2.74 | % | 4.67 | % | n/a | n/a | 4.67 | % | ||||||||||||||
Dividend yield |
0 | % | 0 | % | 0 | % | n/a | n/a | 0 | % |
The Black-Scholes option-pricing model requires the input of highly subjective assumptions.
We continue to assess the assumptions and methodologies used to calculate the estimated fair value
of share-based compensation. Circumstances may change and additional data may become available
over time, which could result in changes to these assumptions and methodologies, which could
materially impact our fair value determinations.
A combined summary of activity in our 1995 Plan, 2001 Plan and our assumed stock option
plans during the years ended December 31, 2009, 2008 and 2007 is as follows (in thousands, except
per share amounts and contractual life):
27
Weighted | Aggregate | |||||||||||||||
Average | Weighted Remaining | Intrinsic | ||||||||||||||
Number of | Exercise Price | Contractual Life | Value | |||||||||||||
Options | ($) | (Years) | ($) | |||||||||||||
Outstanding balance, December 31, 2006 |
3,582 | 22.24 | 7.80 | 30,775 | ||||||||||||
Granted |
||||||||||||||||
Grant price = fair market value |
202 | 19.09 | ||||||||||||||
Grant price > fair market value |
567 | 25.67 | ||||||||||||||
Exercised |
(189 | ) | 12.09 | |||||||||||||
Forfeited |
(465 | ) | 18.60 | |||||||||||||
Expired |
(202 | ) | 101.11 | |||||||||||||
Outstanding balance, December 31, 2007 |
3,495 | 19.05 | 5.71 | 4,238 | ||||||||||||
Granted |
||||||||||||||||
Grant price = fair market value |
1,033 | 11.97 | ||||||||||||||
Grant price > fair market value |
| | ||||||||||||||
Exercised |
(57 | ) | 9.19 | |||||||||||||
Forfeited |
(152 | ) | 15.10 | |||||||||||||
Expired |
(1,046 | ) | 16.75 | |||||||||||||
Outstanding balance, December 31, 2008 |
3,273 | 17.90 | 5.19 | | ||||||||||||
Granted |
||||||||||||||||
Grant price = fair market value |
61 | 12.25 | ||||||||||||||
Grant price > fair market value |
| | ||||||||||||||
Exercised |
(819 | ) | 11.19 | |||||||||||||
Forfeited |
(155 | ) | 15.10 | |||||||||||||
Expired |
(179 | ) | 16.75 | |||||||||||||
Outstanding balance, December 31, 2009 |
2,181 | 18.97 | 6.09 | 9,334 | ||||||||||||
Options exercisable at December 31, 2008 |
2,102 | 19.42 | 5.19 | | ||||||||||||
Options exercisable at December 31, 2009 |
1,737 | 19.86 | 5.67 | 7,084 | ||||||||||||
Weighted average grant date fair value of options
granted during 2007 |
$ | 14.84 | ||||||||||||||
Weighted average grant date fair value of options
granted during 2008 |
$ | 6.26 | ||||||||||||||
Weighted average grant date fair value of options
granted during 2009 |
$ | 6.89 |
A summary of activity in our restricted stock plan as of the three years ended December
31, 2009, 2008 and 2007 is as follows (in thousands, except per share amounts and contractual
life):
28
Weighted | Aggregate | |||||||||||||||
Average | Weighted Remaining | Intrinsic | ||||||||||||||
Number of | Exercise Price | Contractual Life | Value | |||||||||||||
Shares | ($) | (Years) | ($) | |||||||||||||
Outstanding balance, December 31, 2006 |
408 | | 1.57 | 9,299 | ||||||||||||
Granted |
||||||||||||||||
Grant price = fair market value(1) |
400 | | ||||||||||||||
Grant price < fair market value |
218 | | ||||||||||||||
Vested |
(157 | ) | | |||||||||||||
Forfeited |
(145 | ) | | |||||||||||||
Outstanding balance, December 31, 2007 |
724 | | 1.89 | 9,124 | ||||||||||||
Granted |
||||||||||||||||
Grant price < fair market value |
262 | | ||||||||||||||
Vested |
(452 | ) | | |||||||||||||
Forfeited |
(68 | ) | | |||||||||||||
Outstanding balance, December 31, 2008 |
466 | | 2.41 | 2,977 | ||||||||||||
Granted |
||||||||||||||||
Grant price < fair market value |
986 | | ||||||||||||||
Vested |
(389 | ) | | |||||||||||||
Forfeited |
(64 | ) | | |||||||||||||
Outstanding balance, December 31, 2009 |
999 | | 1.56 | 19,099 | ||||||||||||
Weighted average grant date fair value
of restricted shares granted during 2009 |
$ | 8.55 |
(1) | Represents a grant of restricted stock units to certain key employees that may vest based on the company achieving specified increases in GAAP Diluted Earnings per Share in 2008 and 2009 compared to 2006 Diluted Earnings per Share. This performance period for one-third of the award was from January 1, 2008 to December 31, 2008 and for the remaining two-thirds of the award is from January 1, 2009 to December 31, 2009. We are required to assess whether the performance criteria is probable of being achieved, and only recognize compensation expense if the vesting is considered probable. On a quarterly basis, we assess whether vesting is probable and based on that assessment record the appropriate expense. Based on our assessments during 2009, compensation expense associated with these performance-based RSUs was not recorded in our results of operations in the twelve-month period ended December 31, 2009. |
In connection with stock option and restricted stock awards, we recognized compensation
expense of $9.4 million, $13.7 million, and $12.4 million for the twelve months ended December 31,
2009, 2008 and 2007, respectively. Total compensation cost related to nonvested awards not yet
recognized was $4.1 million at December 31, 2009. The total fair value of options vested during
the twelve-month periods ended December 31, 2009, 2008 and 2007 was $5.9 million, $7.7 million, and
$8.2 million, respectively. The aggregate intrinsic value of options exercised was $3.3 million,
$0.3 million, and $2.0 million during the twelve-month periods ended December 31, 2009, 2008 and
2007. The intrinsic value of a stock option is the amount by which the fair market value of the
underlying stock exceeds the exercise price of the option. When we issue shares upon stock option
exercises, our policy is to first issue any available treasury shares and then issue new shares.
29
A summary of nonvested stock option awards for the years ended December 31, 2009 and 2008, and
changes during the respective periods is presented below:
Weighted | ||||||||
Average Grant Date | ||||||||
Nonvested | Fair Value | |||||||
Shares | ($) | |||||||
Outstanding unvested balance, December 31, 2007 |
1,348 | 17.64 | ||||||
Granted |
||||||||
Grant price = fair market value |
1,033 | 11.97 | ||||||
Forfeited |
(152 | ) | 15.10 | |||||
Vested |
(950 | ) | 15.41 | |||||
Outstanding unvested balance, December 31, 2008 |
1,279 | 15.02 | ||||||
Granted |
||||||||
Grant price = fair market value |
61 | 12.25 | ||||||
Forfeited |
(120 | ) | 15.82 | |||||
Vested |
(663 | ) | 14.73 | |||||
Outstanding unvested balance, December 31, 2009 |
557 | 14.86 | ||||||
Of the options outstanding at December 31, 2009, and in the absence of acceleration of vesting
or cancellations, approximately 316,450 options will vest in 2010, 189,935 in 2011, and 48,227 in
2012.
A summary of nonvested share awards as of December 31, 2009 and 2008, and changes during the
respective periods is presented below:
Weighted | ||||||||
Average Grant Date | ||||||||
Nonvested | Fair Value | |||||||
Shares | ($) | |||||||
Outstanding unvested balance, December 31, 2007 |
724 | 19.64 | ||||||
Granted |
||||||||
Grant price < fair market value |
262 | 11.21 | ||||||
Vested |
(452 | ) | 15.47 | |||||
Forfeited |
(68 | ) | 21.27 | |||||
Outstanding unvested balance, December 31, 2008 |
466 | 16.79 | ||||||
Granted |
||||||||
Grant price < fair market value |
986 | 8.55 | ||||||
Vested |
(389 | ) | 9.64 | |||||
Forfeited |
(64 | ) | 9.24 | |||||
Outstanding unvested balance, December 31, 2009 |
999 | 8.77 | ||||||
30
The following table summarizes information about our stock options outstanding at December 31,
2009:
Options Outstanding | Options Exercisable | |||||||||||||||||||
Weighted Average | ||||||||||||||||||||
Weighted Average | Remaining | Weighted Average | ||||||||||||||||||
Number of | Exercise Price | Contractual Life | Exercise Price | |||||||||||||||||
Range of Exercise Prices | Shares | ($) | (Years) | Shares | ($) | |||||||||||||||
$7.25 -$12.50 |
825 | $ | 10.89 | 7.32 | 537 | $ | 10.24 | |||||||||||||
$12.51-$62.50 |
1,329 | $ | 20.86 | 5.41 | 1,173 | $ | 20.74 | |||||||||||||
$93.76-$137.50 |
14 | $ | 107.03 | 1.61 | 14 | $ | 107.03 | |||||||||||||
$137.50 -$2,301.00 |
13 | $ | 252.13 | 1.74 | 13 | $ | 252.13 | |||||||||||||
2,181 | $ | 18.97 | 6.09 | 1,737 | $ | 19.86 | ||||||||||||||
11. Restructuring Charges and Adjustments
2009 Restructuring Plan. In the first quarter of 2009, we implemented a restructuring
plan to reduce our overhead to increase efficiency and reduce operating expense. We eliminated
approximately 80 positions, resulting in severance costs of $3.0 million.
2007 Restructuring Plan. During the second half of 2007 we initiated reorganization and
eliminated approximately 55 positions. The purpose of the restructuring was to reduce management
layers to both decrease cost and increase speed around decision-making and internal processes. The
realignment included the elimination of certain management levels as well as other targeted cost
reductions. We recorded a charge of approximately $4.0 million primarily related to severance
costs.
Consolidated Restructuring Accrual
The following table summarizes the 2009 and 2008 restructuring related payments and
accruals. There was no remaining estimated sublease income at December 31, 2008.
Employee | ||||
Severance | ||||
and | ||||
Termination | ||||
Remaining accrual balance at December 31, 2007 |
283 | |||
Restructuring charges |
(95 | ) | ||
Cash payments |
(182 | ) | ||
Remaining accrual balance at December 31, 2008 |
$ | 6 | ||
Adjustments to restructuring plans |
$ | (31 | ) | |
Restructuring charges |
3,006 | |||
Cash payments |
(2,971 | ) | ||
Remaining accrual balance at December 31, 2009 |
$ | 10 | ||
12. Foreign Currency Risk Management
Because we conduct business on a global basis in various foreign currencies, we are
exposed to adverse movements in foreign currency exchange rates. We maintain a program to mitigate
foreign currency exposures that utilize foreign currency forward contracts to reduce selected
non-functional currency exposures. The objective of this program is to reduce the effect of
changes in foreign currency exchange rates on our results of operations.
31
Furthermore, our goal is
to offset foreign currency transaction gains and losses recorded for accounting purposes with gains
and losses realized on the forward contracts.
We generally enter into forward contracts to purchase or sell various foreign currencies
as of the last day of each month. These forward contracts generally have original maturities of up
to one month and are net-settled in U.S. Dollars. Each forward contract is based on the current
market forward exchange rate as of the contract date and no premiums are paid or received.
Accordingly, these forward contracts have no fair value as of the contract date. Changes in the
applicable foreign currency exchange rates subsequent to the contract date will cause the fair
value of the forward contracts to change. These changes in the fair value of forward contracts are
recorded through earnings and the corresponding assets or liabilities are recorded on our balance
sheet. Gains and losses on the forward contracts are included as a component of non-operating
expense, net, in our Consolidated Statements of Operations and offset foreign exchange gains and
losses from the revaluation of current monetary assets and liabilities denominated in currencies
other than the functional currency of the reporting entity. During 2009, we recognized net gains
of $4.3 million on foreign currency forward contracts and net losses of $3.9 million on foreign
currency transactions. During 2008, we recognized net losses of $7.6 million on foreign currency
forward transactions and net gains of $5.9 million from the revaluation of current monetary assets
and liabilities. During 2007, we recognized net gains of $3.6 million on foreign currency forward
transactions and net losses of $4.3 million on foreign currency transactions.
A summary of our foreign currency forward contracts by currency as of December 31, 2009
and 2008 is presented in the following table (in thousands). All of these contracts originated,
without premiums, on December 31, 2009 and 2008, respectively, based on then-current market forward
exchange rates. Accordingly, these forward contracts had no fair value on December 31, 2009 and
2008 and no amounts related to these forward contracts were recorded in our financial statements.
2009 | 2008 | |||||||||||||||||||
Notional | Notional | Notional | Notional | |||||||||||||||||
Amount of | Amount of | Amount of | Amount of | |||||||||||||||||
Forward | Forward | Forward | Forward | |||||||||||||||||
Contract | Contract in | Contract | Contract in | |||||||||||||||||
in Foreign | U.S. | in Foreign | U.S. | |||||||||||||||||
Currency | Dollars | Currency | Dollars | |||||||||||||||||
Forward contracts to purchase: |
||||||||||||||||||||
Australian Dollars |
AUD | | $ | | 690 | $ | 472 | |||||||||||||
British Pounds |
GBP | 2,368 | 3,846 | 2,344 | 3,445 | |||||||||||||||
Canadian Dollars |
CAD | | | 12,548 | 10,371 | |||||||||||||||
European Euros |
EUR | 2,677 | 3,831 | 4,089 | 5,773 | |||||||||||||||
Indian Rupees |
INR | 1,065,588 | 22,847 | 883,319 | 18,186 | |||||||||||||||
Japanese Yen |
JPY | 363,332 | 3,905 | 172,064 | 1,904 | |||||||||||||||
Singapore Dollars |
SGD | 1,564 | 1,119 | 1,112 | 779 | |||||||||||||||
Taiwanese Dollars |
TWD | 17,185 | 539 | 15,270 | 469 | |||||||||||||||
Total forward contracts to purchase |
$ | 36,087 | $ | 41,399 | ||||||||||||||||
Forward contracts to sell: |
||||||||||||||||||||
Australian Dollars |
AUD | 27 | 25 | | | |||||||||||||||
South Korean Won |
KRW | 760,570 | 649 | 1,338,000 | 987 | |||||||||||||||
South African Rand |
ZAR | | | 1,410 | 146 | |||||||||||||||
Total forward contracts to sell |
$ | 674 | $ | 1,133 | ||||||||||||||||
Total forward contracts |
$ | 36,761 | $ | 42,532 | ||||||||||||||||
Our foreign currency forward contracts include credit risk to the extent that the bank
counterparties may be unable to meet the terms of agreements. We reduce such risk by limiting our
counterparties to major financial
32
institutions. Additionally, the potential risk of loss with any
one party resulting from this type of credit risk is monitored and risks are also mitigated by
utilizing multiple counterparties.
Income Taxes
The components of income before income taxes from domestic and foreign operations for the
years ended December 31, 2009, 2008 and 2007 are as follows:
2009 | 2008 | 2007 | ||||||||||
(as adjusted) | (as adjusted) | |||||||||||
Domestic |
$ | 19,831 | $ | 107,233 | $ | 8,648 | ||||||
Foreign |
11,624 | 8,823 | 13,152 | |||||||||
Total |
$ | 31,455 | $ | 116,056 | $ | 21,800 | ||||||
Our provision (benefit) for income taxes consists of the following:
2009 | 2008 | 2007 | ||||||||||
Current: |
||||||||||||
State |
207 | 729 | 126 | |||||||||
Federal |
| 1,381 | | |||||||||
Foreign |
3,971 | 4,414 | 6,241 | |||||||||
Deferred: |
||||||||||||
State |
(252 | ) | | | ||||||||
Federal |
(5,438 | ) | | | ||||||||
Foreign |
1,365 | 1,858 | (234 | ) | ||||||||
Total |
$ | (147 | ) | $ | 8,382 | $ | 6,133 | |||||
Our provision (benefit) for income taxes reconciles to the amount computed by applying the
statutory U.S. federal rate of 35% to income from continuing operations before income taxes as
follows:
2009 | 2008 | 2007 | ||||||||||
(as adjusted) | (as adjusted) | |||||||||||
Expense computed at statutory rate |
11,034 | 40,620 | 7,629 | |||||||||
Stock based compensation |
1,429 | 2,054 | 1,749 | |||||||||
Foreign operations |
284 | 3,184 | 1,541 | |||||||||
Decrease in valuation allowance |
(14,373 | ) | (40,565 | ) | (4,936 | ) | ||||||
Dividend received from foreign subsidiary |
579 | 16 | | |||||||||
Alternative minimum tax |
| 1,381 | | |||||||||
Other |
900 | 1,692 | 150 | |||||||||
Provision for income taxes |
$ | (147 | ) | $ | 8,382 | $ | 6,133 | |||||
33
Components of deferred tax assets and liabilities at December 31, 2009 and 2008 are comprised
of the following:
2009 | 2008 | |||||||
(as adjusted) | ||||||||
Deferred Tax Assets |
||||||||
Deferred revenue |
$ | 4,158 | $ | 5,335 | ||||
Accrued liabilities |
6,497 | 7,872 | ||||||
Acquired intangibles |
33,724 | 40,179 | ||||||
Capitalized expenses |
34,421 | 43,344 | ||||||
Other |
12,441 | 11,958 | ||||||
Total future deductible items |
$ | 91,241 | $ | 108,688 | ||||
Loss carryforwards |
663,165 | 661,792 | ||||||
Tax credits |
40,209 | 39,226 | ||||||
Total tax loss carryforwards and credits |
703,374 | 701,018 | ||||||
Total deferred tax assets |
794,615 | 809,706 | ||||||
Valuation allowance against deferred tax assets |
(783,330 | ) | (802,098 | ) | ||||
Net deferred tax assets |
$ | 11,285 | $ | 7,608 | ||||
At December 31, 2009 and 2008, we had approximately $1.73 billion and $1.72 billion of
U.S. federal net operating loss carryforwards for domestic federal tax purposes, respectively.
These loss carryforwards are subject to certain annual limitations and are scheduled to expire as
follows:
2019-2022 |
1,402,372 | |||
Thereafter |
328,499 | |||
Total |
$ | 1,730,871 | ||
At December 31, 2009, our U.S. federal net operating loss carryforwards for tax purposes was
approximately $2.0 million greater than our net operating loss carryforwards for financial
reporting purposes due to our inability to realize excess tax benefits under ASC 740 until such
benefits reduce income taxes payable.
In addition to the tax loss carryforwards reflected above, at December 31, 2009, we had
approximately $247.3 million in future deductible expenses for tax purposes. See the table above
for a description of these deferred tax assets. These tax deductible items have varying schedules
of amortization and deductibility with no expiration and will reduce taxable income in the years of
deduction and may create or increase tax net operating losses in the years of deduction.
Utilization of these future deductible expenses will reduce or delay our ability to utilize
existing tax loss carryforwards, possibly resulting in the expiration of a portion of the existing
loss carryforwards. Under current tax law, tax net operating losses created or increased as a
result of these future tax-deductible items will have a carryforward period of 20 years from the
year in which the loss is incurred.
At December 31, 2009 and 2008, we had approximately $38.7 and $38.9 million of U.S. federal
research and development tax credit carryforwards. These tax credits expire in the years 2010
through 2028.
At December 31, 2009 and 2008, we had approximately $82.7 million and $85.4 million,
respectively, of U.S. federal capital loss carryforwards. These loss carryforwards expire in the
years 2010 through 2013. Capital losses may be offset only by capital gains.
34
We had no foreign net operating loss carryforwards at December 31, 2009. We had $5.1 million
of foreign net operating loss carryforwards at December 31, 2008. At December 31, 2009 and 2008,
we had $3.0 million and $2.9 million, respectively, of foreign research and development tax credit
carryforwards. The foreign research and development tax credit carryforwards expire between 2022
and 2029.
As of December 31, 2009, we released $5.0 million of our domestic valuation allowance. Each
quarter, we review the necessity and amounts of the domestic valuation allowance taking into
account various judgments and factors, including our historical and projected financial
performance. Despite the valuation allowance, the future tax-deductible benefits and tax credits
related to these deferred tax assets remain available to offset future taxable income or reduce
income taxes payable over the remaining useful lives of the underlying deferred tax assets. Except
for items on which Alternative Minimum Tax may apply, we do not anticipate paying domestic federal
income taxes for the foreseeable future. We will continue to incur state and local income taxes
due to the manner in which they are determined.
We consider the earnings of certain foreign subsidiaries to be permanently reinvested outside
the U.S. Aggregate unremitted earnings of foreign subsidiaries that are considered permanently
reinvested and for which U.S. income taxes have not been provided totaled $32.5 million and $49.2
million as of December 31, 2009 and 2008, respectively.
In July 2006, the FASB issued FASB Interpretation No. 48 (FIN 48), Accounting for
Uncertainty in Income Taxes an Interpretation of FASB Statement No. 109 (SFAS 109) contained
in ASC 470 Income Taxes. This interpretation, which became effective for fiscal years beginning
after December 15, 2006, introduces a new approach that significantly changes how enterprises
recognize and measure tax benefits associated with tax positions and how enterprises disclose
uncertainties related to income tax positions in their financial statements.
This interpretation applies to all tax positions within the scope of ASC 470 and
establishes a single approach in which a recognition and measurement threshold is used to determine
the amount of tax benefit that should be recognized in the financial statements. ASC 470 also
provides guidance on (1) the recognition, derecognition, and measurement of uncertain tax positions
in a period subsequent to that in which the tax position is taken; (2) the accounting for interest
and penalties; (3) the presentation and classification of recorded amounts in the financial
statements; and (4) disclosure requirements.
On January 1, 2007, we adopted the provisions of ASC 470. As a result of the implementation
of ASC 470, there was no adjustment to the January 1, 2007 balance of our accumulated deficit.
At December 31, 2009 and 2008, we have recorded approximately $6.2 million and $6.4 million,
respectively, in tax contingency reserves in our taxes payable accounts relating to tax positions
we have taken during tax years that remain open for examination by tax authorities.
The change in unrecognized tax benefits for the twelve months ended December 31, 2009 and 2008
is as follows:
2009 | 2008 | |||||||
Balance at January 1, |
$ | 29,428 | $ | 30,513 | ||||
Additions for tax positions of prior year |
2,747 | 2,881 | ||||||
Additions for tax positions of prior year |
275 | 1,278 | ||||||
Reductions related to lapses of statutes of limitations |
| (835 | ) | |||||
Reductions for settlements |
(2,070 | ) | (4,409 | ) | ||||
Balance at December 31, |
$ | 30,380 | $ | 29,428 | ||||
The additions for tax positions of prior years and the current year are related to global
transfer pricing and foreign tax credits.
35
The total amount of unrecognized tax benefits at December 31, 2009, that would affect the
companys effective tax rate, and not be offset by our valuation allowance, if recognized is
$9.9 million. Of this amount, we have paid approximately $3.0 million related to India transfer
pricing as required under Indian tax law. There is a reasonable possibility that unrecognized tax
benefits will increase or decrease by December 31, 2010 due to a lapse in the statute of
limitations for assessing tax, settlements of prior years uncertain tax positions, additional tax
assessments and accruals related to our global transfer pricing. However, it is not possible to
reasonably estimate a range of such potential increase or decrease.
We account for interest expense and penalties related to income tax issues as income tax
expense. Accordingly, interest expense and penalties associated with an uncertain tax position are
included in the income tax provision. The total amount of accrued interest and penalties as of
December 31, 2009 and 2008 was $2.4 million and $2.2 million, respectively.
Income tax expense (benefit) for the twelve months ended December 31, 2009, includes $0.2
million of interest expense related to uncertain tax positions.
We or one of our subsidiaries file income tax returns in the United States (U.S.) federal
jurisdiction and various state and foreign jurisdictions. We have open tax years for the U.S.
federal return back to 1993 with respect to our net operating loss (NOL) carryforwards, where the
IRS may not raise tax for these years, but can reduce NOLs. Otherwise, with few exceptions, we are
no longer subject to federal, state, local or foreign income tax examinations for years prior to
2005.
14. Segment Information, International Operations and Customer Concentrations
We operate our business in one segment, supply chain management solutions designed to
help enterprises optimize business processes both internally and among trading partners.
Disclosures about Segments of an Enterprise and Related Information contained in ASC 280
Segment Reporting, establishes standards for the reporting of information about operating segments.
Operating segments are defined as components of an enterprise about which separate financial
information is available that is evaluated regularly by the chief operating decision maker, who is
our Chief Executive Officer (CEO), in deciding how to allocate resources and in assessing
performance.
We market our software and services primarily through our worldwide sales organization
augmented by other service providers, including both domestic and international systems consulting
and integration firms and other industry-related partners. Our chief executive officer evaluates
resource allocation decisions and our performance based on financial information, presented on a
consolidated basis, accompanied by disaggregated information by geographic regions. Sales to our
customers generally include products from some or all of our product suites. We have not
consistently allocated revenues from such sales to individual products for internal or
general-purpose financial statements.
Revenues are attributable to regions based on the locations of the customers operations.
Total revenues by geographic region, as reported to our CEO, were as follows:
2009 | 2008 | 2007 | ||||||||||
United States |
$ | 116,966 | $ | 148,490 | $ | 149,613 | ||||||
International revenue: |
||||||||||||
Non-US Americas |
7,730 | 5,605 | 6,486 | |||||||||
Europe, Middle East and Africa |
41,741 | 55,002 | 54,323 | |||||||||
Greater Asia Pacific |
56,373 | 46,716 | 49,888 | |||||||||
Total international revenue |
105,844 | 107,323 | 110,697 | |||||||||
Total Revenue |
$ | 222,810 | $ | 255,813 | $ | 260,310 | ||||||
International revenue as a percent of total revenue |
48 | % | 42 | % | 43 | % |
36
No individual customer accounted for more than 10% of our total revenues during 2009,
2008 or 2007.
Long-lived assets by geographic region excluding deferred taxes, as reported to our CEO,
were as follows:
2009 | 2008 | |||||||
(as adjusted) | ||||||||
Americas (United States, Canada) |
$ | 18,912 | $ | 21,346 | ||||
Europe, Middle East, Africa |
105 | 137 | ||||||
Greater Asia Pacific |
4,830 | 5,140 | ||||||
Total Long Lived Assets |
$ | 23,847 | $ | 26,623 | ||||
15. Related Parties
On January 1, 2009, Rick Clemmer, an outside director became CEO of NXP Semiconductors. NXP
is a customer, and has purchased maintenance and consulting services in each of the last 3 years.
In each year, revenue from NXP accounted for less than 1% of our operating revenues.
16. Subsequent Events
On January 28, 2010, i2 Technologies, Inc. (i2) completed its merger with Alpha Acquisition
Corp. (Merger Sub), a wholly-owned subsidiary of JDA Software Group, Inc. (JDA), whereby Merger
Sub merged with and into i2 with i2 continuing as the surviving corporation (the Merger). The
Merger was effected pursuant to an Agreement and Plan of Merger, dated as of November 4, 2009 (the
Merger Agreement), by and among JDA, Merger Sub and i2. Due to the change in control, the
vesting of 0.3 million shares of performance based restricted stock units issued to Executives was
accelerated, resulting in compensation expense of $5.2 million in January.
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