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EX-10.1 - EXHIBIT 10.1 - FALCONSTOR SOFTWARE INCex101-q22015.htm
EX-32.2 - EXHIBIT 32.2 - FALCONSTOR SOFTWARE INCex322-q22015.htm
EX-10.2 - EXHIBIT 10.2 - FALCONSTOR SOFTWARE INCex102-q22015.htm
EX-31.2 - EXHIBIT 31.2 - FALCONSTOR SOFTWARE INCex312-q22015.htm
EX-31.1 - EXHIBIT 31.1 - FALCONSTOR SOFTWARE INCex311-q22015.htm
EX-32.1 - EXHIBIT 32.1 - FALCONSTOR SOFTWARE INCex321-q22015.htm


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-Q
(Mark One)

ý QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2015
or 
o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                                 to                                
Commission File Number:  000-23970
FALCONSTOR SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
 
 
DELAWARE
77-0216135
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
 
 
2 Huntington Quadrangle
Melville, New York
11747
(Address of principal executive offices)
(Zip Code)
 
 
631-777-5188
(Registrant’s telephone number, including area code)
 
 
 
 
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.     Yes ý  No ¨
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý  No o
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):
Large accelerated filer o
Accelerated filer x
Non-accelerated filer o (Do not check if a smaller reporting company)
Smaller reporting company o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes o No ý
 
The number of shares of Common Stock outstanding as of July 29, 2015 was 41,170,192.




FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
FORM 10-Q
INDEX
 
 
 
Page
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


2



PART I.  FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements
 
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
 
 
June 30, 2015
 
December 31, 2014
 
 
(unaudited)
 
 
Assets
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
8,307,549

 
$
10,873,891

Marketable securities
 
10,523,821

 
10,900,722

Accounts receivable, net of allowances of $223,059 and $119,530, respectively
 
6,224,034

 
8,898,680

Prepaid expenses and other current assets
 
1,750,218

 
1,596,916

Inventory
 
150,236

 
352,493

Deferred tax assets, net
 
296,360

 
316,586

Total current assets
 
27,252,218

 
32,939,288

Property and equipment, net of accumulated depreciation of $17,459,942 and $16,867,911, respectively
 
1,911,145

 
2,147,188

Deferred tax assets, net
 
7,503

 
7,503

Software development costs, net
 
1,260,289

 
1,508,517

Other assets
 
1,162,524

 
1,373,964

Goodwill
 
4,150,339

 
4,150,339

Other intangible assets, net
 
262,333

 
196,037

Total assets
 
$
36,006,351

 
$
42,322,836

Liabilities and Stockholders' Deficit
 
 

 
 

Current liabilities:
 
 

 
 

Accounts payable
 
$
1,145,944

 
$
1,266,504

Accrued expenses
 
7,779,298

 
6,939,198

Deferred tax liabilities, net
 
23,307

 
23,307

Deferred revenue, net
 
17,190,326

 
23,380,012

Total current liabilities
 
26,138,875

 
31,609,021

Other long-term liabilities
 
746,897

 
630,444

Deferred tax liabilities, net
 
245,903

 
226,443

Deferred revenue, net
 
9,213,624

 
13,097,215

Total liabilities
 
36,345,299

 
45,563,123

Commitments and contingencies
 


 


Series A redeemable convertible preferred stock, $.001 par value, 2,000,000 shares authorized, 900,000 shares issued and outstanding, redemption value of $9,000,000
 
7,511,915

 
7,230,941

Stockholders' deficit:
 
 

 
 

Common stock - $.001 par value, 100,000,000 shares authorized, 56,448,262 and 56,360,222 shares issued, respectively and 40,920,192 and 40,924,313 shares outstanding, respectively
 
56,448

 
56,360

Additional paid-in capital
 
167,117,725

 
166,933,291

Accumulated deficit
 
(116,460,335
)
 
(119,054,530
)
Common stock held in treasury, at cost (15,528,070 and 15,435,909 shares, respectively)
 
(57,032,917
)
 
(56,895,059
)
Accumulated other comprehensive loss, net
 
(1,531,784
)
 
(1,511,290
)
Total stockholders' deficit
 
(7,850,863
)
 
(10,471,228
)
Total liabilities and stockholders' deficit
 
$
36,006,351

 
$
42,322,836


See accompanying notes to unaudited condensed consolidated financial statements.

3



FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)

 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2015
 
2014
 
2015
 
2014
Revenue:
 
 
 
 
 
 
 
 
Product revenue
 
$
3,650,504

 
$
4,252,486

 
$
17,620,871

 
$
9,215,545

Support and services revenue
 
5,902,085

 
7,050,181

 
11,871,594

 
14,088,621

Total revenue
 
9,552,589

 
11,302,667

 
29,492,465

 
23,304,166

Cost of revenue:
 
 

 
 

 
 

 
 

Product
 
718,057

 
698,222

 
1,108,281

 
1,273,346

Support and service
 
1,940,729

 
2,009,441

 
3,960,747

 
4,108,692

Total cost of revenue
 
2,658,786

 
2,707,663

 
5,069,028

 
5,382,038

Gross profit
 
$
6,893,803

 
$
8,595,004

 
$
24,423,437

 
$
17,922,128

Operating expenses:
 
 

 
 

 
 

 
 

Research and development costs
 
3,067,732

 
3,143,224

 
6,273,599

 
6,492,019

Selling and marketing
 
4,371,513

 
6,351,947

 
9,676,875

 
12,240,413

General and administrative
 
2,583,893

 
2,364,380

 
5,076,834

 
4,755,790

Investigation, litigation, and settlement related (benefits) costs
 
(8,186
)
 
(5,275,920
)
 
8,842

 
(5,164,209
)
Restructuring costs
 
23,495

 
562,913

 
157,971

 
786,486

Total operating expenses
 
10,038,447

 
7,146,544

 
21,194,121

 
19,110,499

Operating (loss) income
 
(3,144,644
)
 
1,448,460

 
3,229,316

 
(1,188,371
)
Interest and other income (loss), net
 
98,411

 
(30,982
)
 
(365,665
)
 
19,126

(Loss) income before income taxes
 
(3,046,233
)
 
1,417,478

 
2,863,651

 
(1,169,245
)
(Benefit) provision for income taxes
 
(378,049
)
 
86,531

 
269,456

 
301,606

Net (loss) income
 
$
(2,668,184
)
 
$
1,330,947

 
$
2,594,195

 
$
(1,470,851
)
Less: Accrual of Series A redeemable convertible preferred stock dividends
 
186,904

 
186,904

 
377,690

 
373,808

Less: Accretion to redemption value of Series A redeemable convertible preferred stock
 
143,557

 
120,531

 
280,974

 
235,907

Net (loss) income attributable to common stockholders
 
$
(2,998,645
)
 
$
1,023,512

 
$
1,935,531

 
$
(2,080,566
)
Basic net (loss) income per share attributable to common stockholders
 
$
(0.07
)
 
$
0.02

 
$
0.05

 
$
(0.04
)
Diluted net (loss) income per share attributable to common stockholders
 
$
(0.07
)
 
$
0.02

 
$
0.05

 
$
(0.04
)
Weighted average basic shares outstanding
 
40,964,160

 
47,919,318

 
40,949,849

 
47,975,217

Weighted average diluted shares outstanding
 
40,964,160

 
48,780,606

 
42,492,677

 
47,975,217


See accompanying notes to unaudited condensed consolidated financial statements.


4



FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(UNAUDITED)

 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2015
 
2014
 
2015
 
2014
Net (loss) income
 
$
(2,668,184
)
 
$
1,330,947

 
$
2,594,195

 
$
(1,470,851
)
Other comprehensive (loss) income, net of taxes:
 
 

 
 

 
 

 
 

Foreign currency translation
 
(4,477
)
 
(12,184
)
 
(30,978
)
 
(138,470
)
Net unrealized gain on marketable securities
 
657

 
2,433

 
4,676

 
618

Net minimum pension liability
 
3,341

 
3,612

 
5,808

 
4,104

Total other comprehensive loss, net of taxes:
 
(479
)
 
(6,139
)
 
(20,494
)
 
(133,748
)
Total comprehensive (loss) income
 
$
(2,668,663
)
 
$
1,324,808

 
$
2,573,701

 
$
(1,604,599
)
Less: Accrual of Series A redeemable convertible preferred stock dividends
 
186,904

 
186,904

 
377,690

 
373,808

Less: Accretion to redemption value of Series A redeemable convertible preferred stock
 
143,557

 
120,531

 
280,974

 
235,907

Total comprehensive (loss) income attributable to common stockholders
 
$
(2,999,124
)
 
$
1,017,373

 
$
1,915,037

 
$
(2,214,314
)

See accompanying notes to unaudited condensed consolidated financial statements.


5



FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
 
 
Six Months Ended June 30,
 
 
2015
 
2014
Cash flows from operating activities:
 
 
 
 
Net income (loss)
 
$
2,594,195

 
$
(1,470,851
)
Adjustments to reconcile net income (loss) to net cash from operating activities:
 
 

 
 

Depreciation and amortization
 
1,058,581

 
1,225,667

Share-based payment compensation
 
731,584

 
832,099

Non-cash professional services expenses
 
69,190

 
2,616

Gain on Estate litigation settlement
 

 
(5,293,319
)
Restructuring costs
 
157,971

 
786,486

Payment of restructuring costs
 
(422,868
)
 
(749,724
)
Loss on disposal of fixed assets
 
13,185

 

Provision (benefit) for returns and doubtful accounts
 
17,808

 
(23,530
)
Deferred income tax provision
 
32,898

 
(12,090
)
Changes in operating assets and liabilities:
 
 

 
 

Accounts receivable
 
2,655,194

 
3,584,824

Prepaid expenses and other current assets
 
(176,307
)
 
6,394

Inventory
 
202,257

 
226,995

Other assets
 
41,492

 
212,453

Accounts payable
 
(100,169
)
 
323,445

Accrued expenses and other long-term liabilities
 
1,472,222

 
(1,550,577
)
Deferred revenue
 
(9,994,575
)
 
3,333,415

Net cash (used in) provided by operating activities
 
(1,647,342
)
 
1,434,303

Cash flows from investing activities:
 
 

 
 

Sales of marketable securities
 
6,328,000

 
21,591,226

Purchases of marketable securities
 
(6,041,913
)
 
(23,211,804
)
Purchases of property and equipment
 
(505,357
)
 
(328,019
)
Capitalized software development costs
 
(14,100
)
 

Security deposits
 
166,003

 
(74,229
)
Purchase of intangible assets
 
(139,989
)
 
(42,853
)
Net cash used in investing activities
 
(207,356
)
 
(2,065,679
)
Cash flows from financing activities:
 
 

 
 

Proceeds from exercise of stock options
 
42,412

 
24,684

Repurchase of common stock
 
(137,859
)
 

Dividends paid on Series A redeemable convertible preferred stock
 
(377,690
)
 
(403,283
)
Net cash used in financing activities
 
(473,137
)
 
(378,599
)
Effect of exchange rate changes on cash and cash equivalents
 
(238,507
)
 
55,320

Net decrease in cash and cash equivalents
 
(2,566,342
)
 
(954,655
)
Cash and cash equivalents, beginning of period
 
10,873,891

 
19,288,340

Cash and cash equivalents, end of period
 
$
8,307,549

 
$
18,333,685

Supplemental disclosures:
 
 

 
 

Cash paid for income taxes, net
 
$
98,653

 
$
30,428

Non-cash financing activities:
 
 

 
 

Undistributed Series A redeemable convertible preferred stock dividends
 
$
186,904

 
$
186,904

The Company did not pay any interest for the six months ended June 30, 2015 and 2014.
See accompanying notes to unaudited condensed consolidated financial statements.

6



FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
Notes to Unaudited Condensed Consolidated Financial Statements 

(1) Basis of Presentation

(a)  The Company and Nature of Operations
 
FalconStor Software, Inc., a Delaware Corporation (the "Company"), is a leading software-defined storage company offering a converged data services software platform that is hardware agnostic. The Company develops, manufactures and sells data migration, business continuity, disaster recovery, optimized backup and de-duplication solutions and provides the related maintenance, implementation and engineering services.
 
(b)  Principles of Consolidation
 
The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries.  All significant intercompany balances and transactions have been eliminated in consolidation.
 
(c)  Use of Estimates
 
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company’s significant estimates include those related to revenue recognition, accounts receivable allowances, share-based payment compensation, valuation of derivatives, capitalizable software development costs, valuation of goodwill and other intangible assets and income taxes. Actual results could differ from those estimates.
 
The financial market volatility in many countries where the Company operates has impacted and may continue to impact the Company’s business. Such conditions could have a material impact to the Company’s significant accounting estimates discussed above.
 
(d)  Unaudited Interim Financial Information
 
The accompanying unaudited interim condensed consolidated financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). Certain information and note disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such rules and regulations relating to interim financial statements.
 
In the opinion of management, the accompanying unaudited interim condensed consolidated financial statements reflect all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the financial position of the Company at June 30, 2015, and the results of its operations for the three and six months ended June 30, 2015 and 2014. The results of operations of any interim period are not necessarily indicative of the results of operations to be expected for the full fiscal year. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes set forth in the Company's Annual Report on Form 10-K for the year ended December 31, 2014 ("2014 Form 10-K").

(e)  Recently Issued Accounting Pronouncements

In November 2014, the Financial Accounting Standards Board (the "FASB") issued new guidance which requires an entity to determine whether the host contract in a hybrid financial instrument issued in the form of a share is more akin to debt or to equity by considering the economic characteristics and risks of the entire hybrid financial instrument, including the embedded derivative feature that is being evaluated for separate accounting from the host contract. The effects of initially adopting the amendments in this update should be applied on a modified retrospective basis to existing hybrid financial instruments issued in the form of a share as of the beginning of the fiscal year for which the amendments are effective. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015, which for the Company will be the annual period ending December 31, 2016. Early adoption, including adoption in an interim period, is permitted. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on our financial results.


7



In August 2014, the FASB issued new guidance which requires an entity to evaluate whether there are conditions or events, in the aggregate, that raise substantial doubt about the entity's ability to continue as a going concern within one year after the date that the financial statements are issued (or within one year after the financial statements are available to be issued when applicable), and to provide related footnote disclosures in certain circumstances. The new standard is effective for the annual period ending after December 15, 2016, and for annual and interim periods thereafter, which for the Company will be the annual period ending December 31, 2016. Early application is permitted. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on our financial reporting or disclosures.

In May 2014, the FASB issued new guidance which requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. This new guidance will replace most existing revenue recognition guidance in Generally Accepted Accounting Principles in the United States when it becomes effective. The new standard is expected to be effective for the Company on January 1, 2018. Early application as of January 1, 2017 is expected to be permitted. The standard permits the use of either the retrospective or cumulative effect transition method. The Company is evaluating the effect that this new guidance will have on its consolidated financial statements and related disclosures. The Company has not yet selected a transition method nor has it determined the effect of the standard on its financial reporting.
 
(2) Summary of Significant Accounting Policies

The Company's significant accounting policies were described in Note (1) "Summary of Significant Accounting Policies" of the 2014 Form 10-K. There have been no significant changes in the Company's significant accounting policies since December 31, 2014. The Company's revenue recognition accounting policy is included below. For a description of the Company's other significant accounting policies refer to the 2014 Form 10-K.

Revenue Recognition
 
The Company derives its revenue from sales of its products, support and services. Product revenue consists of the Company’s software integrated with industry standard hardware and sold as complete turn-key integrated solutions, as stand-alone software applications or sold on a subscription or consumption basis. Depending on the nature of the arrangement revenue related to turn-key solutions and stand-alone software applications are generally recognized upon shipment and delivery of license keys. For certain arrangements revenue is recognized based on usage or ratably over the term of the arrangement. Support and services revenue consists of both maintenance revenues and professional services revenues. Revenue is recorded net of applicable sales taxes.
 
In accordance with the authoritative guidance issued by the FASB on revenue recognition, the Company recognizes revenue when persuasive evidence of an arrangement exists, the fee is fixed or determinable, delivery has occurred, and collection of the resulting receivable is deemed probable. Products delivered to a customer on a trial basis are not recognized as revenue until the trial period has ended and acceptance has occurred by the customer. Reseller and distributor customers typically send the Company a purchase order when they have an end user identified. For bundled arrangements that include either maintenance or both maintenance and professional services, the Company uses the residual method to determine the amount of product revenue to be recognized. Under the residual method, consideration is allocated to the undelivered elements based upon vendor-specific objective evidence (“VSOE”) of the fair value of those elements, with the residual of the arrangement fee allocated to and recognized as product revenue. If VSOE does not exist for all undelivered elements of an arrangement, the Company recognizes total revenue from the arrangement ratably over the term of the maintenance agreement. The Company's long-term portion of deferred revenue consists of (i) payments received for maintenance contracts with terms in excess of one year as of the balance sheet date, and (ii) payments received for product sales bundled with multiple years of maintenance but for which VSOE did not exist for all undelivered elements of the arrangement. The Company provides an allowance for product returns as a reduction of revenue, based upon historical experience and known or expected trends.


8



When more than one element, such as hardware, software and services are contained in a single arrangement, the Company will first allocate revenue based upon the relative selling price into two categories: (1) non-software components, such as hardware and any hardware-related items, as required system software that functions with the hardware to deliver the essential functionality of the hardware and related post-contract customer support, and software as service subscriptions and (2) software components and applications, such as post-contract customer support and other services. The Company will then allocate revenue within the non-software category to each element based upon their relative selling price using a hierarchy of VSOE, third-party evidence of selling price (“TPE”) or estimated selling prices (“ESP”), if VSOE or TPE does not exist. The Company will allocate revenue within the software category to the undelivered elements based upon their fair value using VSOE with the residual revenue allocated to the delivered elements. If the Company cannot objectively determine the VSOE of the fair value of any undelivered software element, the Company will defer revenue for all software components until all elements are delivered and services have been performed, until fair value can objectively be determined for any remaining undelivered elements, or until software maintenance is the only undelivered element which the Company has VSOE for, in which case revenue is recognized over the maintenance term for all software elements.

Revenues associated with maintenance services are deferred and recognized as revenue ratably over the term of the contract. Revenues associated with software implementation and software engineering services are recognized when the services are performed. Costs of providing these services are included in cost of support and services.
 
The Company has entered into various distribution, licensing and joint promotion agreements with OEMs, whereby the Company has provided to the OEM a non-exclusive software license to install the Company’s software on certain hardware or to resell the Company’s software in exchange for payments based on the products distributed by these OEMs. Such payments from the OEM or distributor are recognized as revenue in the period reported by the OEM.

From time to time the Company will enter into funded software development arrangements. Under such arrangements, revenue recognition will not commence until final delivery and/or acceptance of the product. For arrangements where the Company has VSOE for the undelivered elements, the Company will follow the residual method and recognize product revenue upon final delivery and/or acceptance of the product. For arrangements where the Company does not have VSOE for the undelivered elements, the Company will recognize the entire arrangement fee ratably commencing at the time of final delivery and/or acceptance through the end of the service period in the arrangement. Certain arrangements, for which VSOE of fair value for the undelivered maintenance elements cannot be established, are accounted for as a single unit of account. The revenue recognized from single units of accounting are typically allocated and classified on the consolidated statements of operations as product revenue and support and services revenue. Since VSOE cannot be established, VSOE of similar maintenance offerings provides the basis for the support and services revenue classification, and the remaining residual consideration provides the basis for the product revenue classification. In 2013, the Company entered into a joint development agreement whereby final acceptance of the software delivered under the joint development agreement occurred on November 16, 2014. During 2014, the Company began to recognize the total committed fee as revenue ratably over a twenty-five and a half month period which began on November 16, 2014 which included a contractual twenty-four month maintenance period. During the first quarter of 2015, the customer elected to terminate their maintenance agreement and as such all unrecognized deferred revenue was accelerated and recognized as product revenue during the quarter. During the six months ended June 30, 2015, the Company recorded total product revenue of approximately $11.3 million related to this agreement. There was no product revenue recorded during the three months ended June 30, 2015 related to this agreement. As of June 30, 2015, there is no deferred revenue or undelivered services remaining related to this agreement.
 
(3) Earnings Per Share

Basic EPS is computed based on the weighted average number of shares of common stock outstanding. Diluted EPS is computed based on the weighted average number of common shares outstanding increased by dilutive common stock equivalents, attributable to stock option awards, restricted stock awards and the Series A redeemable convertible preferred stock outstanding.

The following represents the common stock equivalents that were excluded from the computation of diluted shares outstanding because their effect would have been anti-dilutive for the three and six months ended June 30, 2015 and 2014:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2015
 
2014
 
2015
 
2014
Stock options and restricted stock
 
8,047,333

 
6,286,802

 
5,007,276

 
8,898,259

Series A redeemable convertible preferred stock
 
8,781,516

 
8,781,516

 
8,781,516

 
8,781,516

Total anti-dilutive common stock equivalents
 
16,828,849

 
15,068,318

 
13,788,792

 
17,679,775



9



The following represents a reconciliation of the numerators and denominators of the basic and diluted EPS computation:  
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,

 
2015
 
2014
 
2015
 
2014
Numerator
 
 
 
 
 
 
 
 
Net (loss) income
 
$
(2,668,184
)
 
$
1,330,947

 
$
2,594,195

 
$
(1,470,851
)
Effects of Series A redeemable convertible preferred stock:
 
 

 
 

 
 

 
 

Less: Series A redeemable convertible preferred stock dividends
 
186,904

 
186,904

 
377,690

 
373,808

Less: Accretion to redemption value of Series A redeemable convertible preferred stock
 
143,557

 
120,531

 
280,974

 
235,907

Net (loss) income attributable to common stockholders
 
$
(2,998,645
)
 
$
1,023,512

 
$
1,935,531

 
$
(2,080,566
)
Denominator
 
 

 
 

 
 

 
 

Weighted average basic shares outstanding
 
40,964,160

 
47,919,318

 
40,949,849

 
47,975,217

Effect of dilutive securities:
 
 

 
 

 
 

 
 

Stock options and restricted stock
 

 
861,288

 
1,542,828

 

Series A redeemable convertible preferred stock
 

 

 

 

Weighted average diluted shares outstanding
 
40,964,160

 
48,780,606

 
42,492,677

 
47,975,217

EPS
 
 

 
 

 
 

 
 

Basic net (loss) income per share attributable to common stockholders
 
$
(0.07
)
 
$
0.02

 
$
0.05

 
$
(0.04
)
Diluted net (loss) income per share attributable to common stockholders
 
$
(0.07
)
 
$
0.02

 
$
0.05

 
$
(0.04
)

(4) Inventories
 
At June 30, 2015 and December 31, 2014, inventories are as follows:
 
 
June 30, 2015
 
December 31, 2014
Finished systems
 
$
150,236

 
$
352,493

Total Inventory
 
$
150,236

 
$
352,493

 
As of June 30, 2015 and December 31, 2014, the Company has not recorded any reserve for excess and/or obsolete inventories in arriving at the estimated net realizable value of its inventory.
 
(5) Property and Equipment

The gross carrying amount and accumulated depreciation of property and equipment as of June 30, 2015 and December 31, 2014 are as follows:
 
 
June 30, 2015
 
December 31, 2014
Property and Equipment:
 
 
 
 
Gross carrying amount
 
$
19,371,087

 
$
19,015,099

Accumulated depreciation
 
(17,459,942
)
 
(16,867,911
)
Property and Equipment, net
 
$
1,911,145

 
$
2,147,188


For the three months ended June 30, 2015 and 2014, depreciation expense was $350,732 and $447,410, respectively. For the six months ended June 30, 2015 and 2014, depreciation expense was $722,561 and $940,727, respectively.


10



During the three and six months ended June 30, 2015, the Company wrote-off gross property and equipment of $138,425 and the associated accumulated depreciation of $125,240, related to assets that were no longer in use. During the three and six months ended June 30, 2014, in connection with the Company's 2013 restructuring plan, the Company wrote-off gross property and equipment of $240,917 and the associated accumulated depreciation of $142,908, related to assets that were no longer in use as a result of the closure of a foreign facility. For further information, refer to Note (18) Restructuring Costs.

(6) Software Development Costs

The gross carrying amount and accumulated amortization of software development costs as of June 30, 2015 and December 31, 2014 are as follows:
 
 
June 30, 2015
 
December 31, 2014
Software development costs:
 
 
 
 
Gross carrying amount
 
$
2,917,215

 
$
2,903,115

Accumulated amortization
 
(1,656,926
)
 
(1,394,598
)
Software development costs, net
 
$
1,260,289

 
$
1,508,517


During the three months ended June 30, 2015 and 2014, the Company recorded $131,737 and $121,821, respectively, of amortization expense related to capitalized software costs. During the six months ended June 30, 2015 and 2014, the Company recorded $262,328 and $224,124, respectively, of amortization expense related to capitalized software costs.

(7) Goodwill and Other Intangible Assets

The gross carrying amount and accumulated amortization of goodwill and other intangible assets as of June 30, 2015 and December 31, 2014 are as follows: 
 
 
June 30, 2015
 
December 31, 2014
Goodwill
 
$
4,150,339

 
$
4,150,339

Other intangible assets:
 
 

 
 

Gross carrying amount
 
$
3,535,013

 
$
3,395,024

Accumulated amortization
 
(3,272,680
)
 
(3,198,987
)
Net carrying amount
 
$
262,333

 
$
196,037


For the three months ended June 30, 2015 and 2014, amortization expense was $38,374 and $31,846, respectively. For the six months ended June 30, 2015 and 2014, amortization expense was $73,692 and $60,816, respectively.

(8) Share-Based Payment Arrangements
 
The following table summarizes the plans under which the Company was able to grant equity compensation as of June 30, 2015
 
 
Shares
 
Shares Available
 
Shares
 
Last Date for Grant
Name of Plan
 
Authorized
 
for Grant
 
Outstanding
 
of Shares
FalconStor Software, Inc., 2006 Incentive Stock Plan
 
13,455,546
 
3,246,122
 
7,241,082
 
May 17, 2016
FalconStor Software, Inc., 2013 Outside Directors Equity Compensation Plan
 
400,000
 
210,000
 
137,200
 
May 9, 2016
 

11



On July 1, 2015, the total shares available for issuance under the FalconStor Software, Inc., 2006 Incentive Stock Plan (the “2006 Plan”) totaled 3,246,122. Pursuant to the 2006 Plan, as amended, if, on July 1st of any calendar year in which the 2006 Plan is in effect, the number of shares of stock as to which options, restricted shares and restricted stock units may be granted under the 2006 Plan is less than five percent (5%) of the number of outstanding shares of stock, then the number of shares of stock available for issuance under the 2006 Plan is automatically increased so that the number equals five percent (5%) of the shares of stock outstanding. In no event shall the number of shares of stock subject to the 2006 Plan in the aggregate exceed twenty million shares, subject to adjustment as provided in the 2006 Plan. On July 1, 2015, the total number of outstanding shares of the Company’s common stock totaled 40,920,192. Pursuant to the 2006 Plan, as amended, the total shares available for issuance under the 2006 Plan were not increased as of July 1, 2015.

The following table summarizes the Company’s equity plans that have expired but that still have equity awards outstanding as of June 30, 2015
Name of Plan
 
Shares Available for Grant
 
Shares Outstanding
 
 
 
 
 
FalconStor Software, Inc., 2000 Stock Option Plan
 
 
469,051
 
 
 
 
 
2004 Outside Directors Stock Option Plan
 
 
40,000
 
 
 
 
 
FalconStor Software, Inc., 2007 Outside Directors Equity Compensation Plan
 
 
160,000
 
The Company recognized share-based compensation expense for all awards issued under the Company’s stock equity plans in the following line items in the condensed consolidated statements of operations for the three and six months ended June 30, 2015 and 2014:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2015
 
2014
 
2015
 
2014
Cost of revenues - Product
 
$

 
$

 
$

 
$

Cost of revenues - Support and Service
 
34,894

 
32,454

 
53,704

 
54,337

Research and development costs
 
98,495

 
86,608

 
171,515

 
175,407

Selling and marketing
 
63,510

 
50,787

 
151,580

 
212,974

General and administrative
 
229,069

 
252,205

 
423,975

 
391,997

 
 
$
425,968

 
$
422,054

 
$
800,774

 
$
834,715

  
(9) Income Taxes
 
The Company’s provision for income taxes consists of state and local, and foreign taxes, as applicable, in amounts necessary to align the Company’s year-to-date tax provision with the effective rate that it expects to achieve for the full year.
 
For the six months ended June 30, 2015 and 2014, the Company recorded an income tax provision of $269,456 and $301,606, respectively, consisting primarily of state and local and foreign taxes. The effective tax rate for the six months ended June 30, 2015 and June 30, 2014 was 9.4% and (25.8%), respectively. The change in the effective tax rate is attributable to the mix of foreign and domestic earnings as no tax expense or benefit is being recognized on domestic earnings or losses. As of June 30, 2015, the Company’s conclusion did not change with respect to the realizability of its domestic deferred tax assets and, therefore, the Company has not recorded any benefit for its expected net domestic deferred tax assets for the full year 2015 estimated annual effective tax rate. As of June 30, 2015, the valuation allowance totaled approximately $35.0 million.
 
The Company’s total unrecognized tax benefits, excluding interest, at both June 30, 2015 and December 31, 2014 were $224,637. At June 30, 2015, $321,704 of unrecognized tax benefits, including interest, if recognized, would reduce the Company’s effective tax rate. As of June 30, 2015 and December 31, 2014, the Company had $97,067 and $87,960, respectively, of accrued interest.
 

12



(10) Fair Value Measurements
 
The Company measures its cash equivalents, marketable securities and derivative instruments at fair value. Fair value is an exit price, representing the amount that would be received on the sale of an asset or that would be paid to transfer a liability in an orderly transaction between market participants. As a basis for considering such assumptions, the Company utilizes a three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies in measuring fair value.
 
The methodology for measuring fair value specifies a hierarchy of valuation techniques based upon whether the inputs to those valuation techniques reflect assumptions other market participants would use based upon market data obtained from independent sources (observable inputs) or reflect the Company’s own assumptions of market participant valuation (unobservable inputs). As a result, observable and unobservable inputs have created the following fair value hierarchy:
 
Level 1 – Quoted prices in active markets that are unadjusted and accessible at the measurement date for identical, unrestricted assets or liabilities. At June 30, 2015 and December 31, 2014, the Level 1 category included money market funds, which are included within cash and cash equivalents in the condensed consolidated balance sheets.

Level 2 – Quoted prices for identical assets and liabilities in markets that are not active, quoted prices for similar assets and liabilities in active markets or financial instruments for which significant inputs are observable, either directly or indirectly. At June 30, 2015 and December 31, 2014, the Level 2 category included government securities and corporate debt securities, which are included within cash and cash equivalents and marketable securities in the condensed consolidated balance sheets.

Level 3 – Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable. At June 30, 2015 and December 31, 2014, the Level 3 category included derivatives, which are included within other long-term liabilities in the condensed consolidated balance sheets. The Company did not hold any cash, cash equivalents or marketable securities categorized as Level 3 as of June 30, 2015 or December 31, 2014.

The following table presents the Company’s assets and liabilities that are measured at fair value on a recurring basis at June 30, 2015:
 
 
 
 
Fair Value Measurements at Reporting Date Using
 
 
Total
 
Quoted Prices in Active Markets for Identical Assets
(Level 1)
 
Significant other Inputs
(Level 2)
 
Significant Unobservable Inputs
(Level 3)
Cash equivalents:
 
 
 
 
 
 
 
 
Money market funds
 
$
1,737,948

 
$
1,737,948

 
$

 
$

Corporate debt and government securities
 
711,439

 

 
711,439

 

Total cash equivalents
 
2,449,387

 
1,737,948

 
711,439

 

Marketable securities:
 
 

 
 

 
 

 
 

Corporate debt and government securities
 
10,523,821

 

 
10,523,821

 

Total marketable securities
 
10,523,821

 

 
10,523,821

 

Derivative liabilities:
 
 

 
 

 
 

 
 

Derivative Instruments
 
100,561

 

 

 
100,561

Total derivative liabilities
 
100,561

 

 

 
100,561

 
 
 
 
 
 
 
 
 
Total assets and liabilities measured at fair value
 
$
13,073,769

 
$
1,737,948

 
$
11,235,260

 
$
100,561



13



The following table presents the Company’s assets and liabilities that are measured at fair value on a recurring basis at December 31, 2014
 
 
 
 
Fair Value Measurements at Reporting Date Using
 
 
Total
 
Quoted Prices in Active Markets for Identical Assets
(Level 1)
 
Significant other Inputs
(Level 2)
 
Significant Unobservable Inputs
(Level 3)
Cash equivalents:
 
 
 
 
 
 
 
 
Money market funds
 
$
2,049,972

 
$
2,049,972

 
$

 
$

Total cash equivalents
 
2,049,972

 
2,049,972

 

 

Marketable securities:
 
 

 
 

 
 

 
 

Corporate debt and government securities
 
10,900,722

 

 
10,900,722

 

Total marketable securities
 
10,900,722

 

 
10,900,722

 

Derivative liabilities:
 
 
 
 
 
 
 
 
Derivative Instruments
 
137,171

 

 

 
137,171

Total derivative liabilities
 
137,171

 

 

 
137,171

 
 
 
 
 
 
 
 
 
Total assets and liabilities measured at fair value
 
$
13,087,865

 
$
2,049,972

 
$
10,900,722

 
$
137,171

 
The fair value of the Company’s investments in corporate debt and government securities have been determined utilizing third party pricing services and reviewed by the Company. The pricing services use inputs to determine fair value which are derived from observable market sources including reportable trades, benchmark curves, credit spreads, broker/dealer quotes, bids, offers, and other industry and economic events. These investments are included in Level 2 of the fair value hierarchy.

The fair value of the Company’s derivatives were valued using the Black-Scholes pricing model adjusted for probability assumptions, with all significant inputs, except for the probability and volatility assumptions, derived from or corroborated by observable market data such as stock price and interest rates. The probability and volatility assumptions are both significant to the fair value measurement and unobservable. These embedded derivatives are included in Level 3 of the fair value hierarchy.

The following table presents a reconciliation of the beginning and ending balances of the Company's liabilities measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the three and six months ended June 30, 2015 and June 30, 2014:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2015
 
2014
 
2015
 
2014
Beginning Balance
 
$
109,038

 
$
127,288

 
$
137,171

 
$
159,134

Total gain recognized in earnings
 
(8,477
)
 
(15,818
)
 
(36,610
)
 
(47,664
)
Ending Balance
 
$
100,561

 
$
111,470

 
$
100,561

 
$
111,470



14



(11) Marketable Securities
 
The Company’s marketable securities consist of available-for-sale securities, which are carried at fair value, with unrealized gains and losses reported as a separate component of stockholders’ equity. Unrealized gains and losses are computed on the specific identification method. Realized gains, realized losses and declines in value judged to be other-than-temporary, are included in interest and other income (loss), net. The cost of available-for-sale securities sold is based on the specific identification method and interest earned is included in interest and other income.
 
The cost and fair values of the Company’s available-for-sale marketable securities as of June 30, 2015, are as follows: 
 
 
Aggregate
Fair Value
 
Cost or Amortized
Cost
 
Net Unrealized
Gains/(losses)
Government securities
 
$
7,024,178

 
$
7,019,981

 
$
4,197

Corporate debt securities
 
3,499,643

 
3,500,572

 
(929
)
Marketable Securities
 
$
10,523,821

 
$
10,520,553

 
$
3,268


The cost and fair values of the Company’s available-for-sale marketable securities as of December 31, 2014, are as follows: 
 
 
Aggregate
Fair Value
 
Cost or Amortized
Cost
 
Net Unrealized
Losses
Government securities
 
$
6,740,825

 
$
6,741,466

 
$
(641
)
Corporate debt securities
 
4,159,897

 
4,160,664

 
(767
)
Marketable Securities
 
$
10,900,722

 
$
10,902,130

 
$
(1,408
)
 
(12) Commitments and Contingencies
 
The Company has an operating lease covering its corporate office facility that expires in April 2021. The Company also has several additional operating leases related to offices in foreign countries. The expiration dates for these leases range from 2015 through 2017. The following is a schedule of future minimum lease payments for all operating leases as of June 30, 2015
2015
$
1,196,467

2016
1,944,112

2017
1,581,581

2018
1,361,341

2019
1,402,181

Thereafter
1,935,267

 
$
9,420,949


The Company typically provides its customers a warranty on its software products for a period of no more than 90 days. Such warranties are accounted for in accordance with the authoritative guidance issued by the FASB on contingencies. For the three and six months ended June 30, 2015, the Company has not incurred any costs related to warranty obligations.
 
Under the terms of substantially all of its software license agreements, the Company has agreed to indemnify its customers for all costs and damages arising from claims against such customers based on, among other things, allegations that the Company’s software infringes the intellectual property rights of a third party. In most cases, in the event of an infringement claim, the Company retains the right to (i) procure for the customer the right to continue using the software; (ii) replace or modify the software to eliminate the infringement while providing substantially equivalent functionality; or (iii) if neither (i) nor (ii) can be reasonably achieved, the Company may terminate the license agreement and refund to the customer a pro-rata portion of the license fee paid to the Company. Such indemnification provisions are accounted for in accordance with the authoritative guidance issued by the FASB on guarantees. From time to time, in the ordinary course of business, the Company receives claims for indemnification, typically from OEMs. The Company is not currently aware of any material claims for indemnification.
 

15



Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect, failure to achieve minimum financial covenants or failure of the Company to issue shares upon conversion of the Series A redeemable convertible preferred stock in accordance with its obligations, the Series A redeemable convertible preferred stockholders may require the Company to redeem all or some of the Series A redeemable convertible preferred stock at a price equal to the greater of 100% of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price as of the occurrence of the triggering event. On or after August 5, 2017, each Series A redeemable convertible preferred stockholder can require the Company to redeem its Series A redeemable convertible preferred stock in cash at a price equal to 100% of the stated value being redeemed plus accrued and unpaid dividends. As of June 30, 2015, there were no triggering events that would allow the Series A redeemable convertible preferred stockholders to require the Company to redeem any of the Series A redeemable convertible preferred stock and the Company does not expect to incur any triggering events in fiscal 2015. As of June 30, 2015, the Company did not fail any financial or non-financial covenants related to the Company's Series A redeemable convertible preferred stock and the Company does not expect to incur any triggering events in fiscal 2015. However, if certain financial covenants are not met over the next six months, the Company would attempt to remedy the failed covenants and obtain waivers from the holders of the Series A redeemable convertible preferred stock. As described under Note (13) Series A Redeemable Convertible Preferred Stock, the Company obtained a waiver on April 20, 2015 to enable it to pay the required quarterly dividends on the Series A redeemable convertible preferred stock in cash for the fourth quarter of 2014 and the first quarter of 2015. The fourth quarter of 2014 and the first quarter of 2015 dividends were paid in cash in April 2015. In addition, as described below, the Company accrued its dividend payment for the required quarterly dividends on the Series A redeemable convertible preferred stock for the second quarter of 2015.

On July 24, 2015, the Company renewed its Employment Agreement (“Quinn Employment Agreement”) with Gary Quinn. Pursuant to the Quinn Employment Agreement, the Company agreed to continue to employ Mr. Quinn as President and Chief Executive Officer of the Company effective July 24, 2015, at an annual salary of $475,000 per annum, which will automatically renew every twelve (12) months unless either party gives notice to the other that it will not renew at least sixty (60) days prior to the end of the term. Among other items, The Quinn Employment Agreement also provided for the grant of 500,000 restricted shares which vest 50% and 50% based upon the achievement of two predetermined milestones of the Company’s Common Stock closing trading price for ninety (90) consecutive trading days. The 500,000 restricted shares were granted to Mr. Quinn by the Company’s Compensation Committee on July 28, 2015. A copy of the Quinn Employment Agreement is attached to this Quarterly Report in Form 10-Q as Exhibit 10.1.

On July 23, 2013, the Company entered into an Employment Agreement (“2013 Quinn Employment Agreement”) with Gary Quinn. Pursuant to the 2013 Quinn Employment Agreement, the Company agreed to employ Mr. Quinn as President and Chief Executive Officer of the Company effective July 23, 2013 through July 22, 2015, at an annual salary of $400,000 per annum. The 2013 Quinn Employment Agreement also provided for the grant of 500,000 restricted shares which vest over a two-year period at 50% and 50% annually. The 500,000 restricted shares were granted to Mr. Quinn by the Company’s Compensation Committee on August 5, 2013. As of June 30, 2015, 250,000 restricted shares remain unvested. These shares vested on July 23, 2015.

From time to time, the Company has undertaken restructuring and expense control measures to support its business performance and to align the Company’s cost structure with its resources. During the third quarter of 2013, the Company adopted a restructuring plan intended to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expects to achieve on a go forward basis (the “2013 Plan”).  In connection with the 2013 Plan, the Company eliminated over 100 positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. As of June 30, 2015 the restructuring accrual totaled $0.8 million. The 2013 Plan was substantially completed by December 31, 2014; however, the Company expects the majority of the severance related costs to be paid once final settlement litigation is completed, which can be at various times over the next three to twenty-four months.

In addition, as of June 30, 2015, our liability for uncertain tax positions totaled $321,704. At this time, the settlement period for the positions, including related accrued interest, cannot be determined.
 
(13) Series A Redeemable Convertible Preferred Stock
 
On September 16, 2013, the Company issued to Hale Capital Partners, LP (“Hale”) 900,000 shares of the Company’s Series A redeemable convertible preferred stock, par value $0.001 per share, at a price of $10 per share, for an aggregate purchase consideration of $9.0 million, which was subsequently transferred to HCP-FVA LLC. Each share of Series A redeemable convertible preferred stock is convertible into common stock equivalents, at the option of the holder and upon certain mandatory conversion events described below, at a conversion rate of $1.02488 (as adjusted for stock splits, stock dividends, reverse stock splits, stock combinations, reclassifications and similar events).  The Company received net proceeds of approximately $8.7 million from the issuance of the redeemable convertible preferred stock in 2013, net of transaction costs.

16



 
If the volume weighted average price of common stock for each trading day of any 60 consecutive trading days exceeds 250% of the conversion price and exceeds 225% of the conversion price through the conversion date, and certain equity conditions are met such that shares of common stock issued upon conversion can be immediately sale able by the redeemable convertible preferred stockholders, the Company can convert the redeemable convertible preferred stock up to an amount equal to the greater of 25% of the daily trading volume for the 20 consecutive trading days immediately preceding the conversion date or the amount of an identified bona fide block trade at a price reasonably acceptable to the applicable redeemable convertible preferred stockholder, but which price is not less than the arithmetic average of the weighted average prices of the common stock for the five trading days immediately preceding such sale.
 
Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect, failure to achieve minimum financial covenants or failure of the Company to issue shares upon conversion of the Series A redeemable convertible preferred stock in accordance with its obligations, the Series A redeemable convertible preferred stockholders may require the Company to redeem all or some of the Series A redeemable convertible preferred stock at a price equal to the greater of 100% of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price as of the occurrence of the triggering event. On or after August 5, 2017, each Series A redeemable convertible preferred stockholder can require the Company to redeem its Series A redeemable convertible preferred stock in cash at a price equal to 100% of the stated value being redeemed plus accrued and unpaid dividends. If the Company does not have the funds necessary to redeem the Series A redeemable convertible preferred stock, the dividends accruing on any outstanding Series A redeemable convertible preferred stock will increase to prime plus 10% (from prime plus 5%). For each six months that the Series A redeemable convertible preferred stock remains unredeemed, the dividend rate increases by 1%, subject to a maximum dividend rate of 19%. In addition, the Company's failure to redeem the Series A redeemable convertible preferred stock would be considered a “Breach Event” under the agreements with the holders of the Series A redeemable convertible preferred stock. If a Breach Event were to occur and the Company is in default under or has breached any provision in respect of its obligations to redeem the Series A redeemable convertible preferred stock, then, under the agreements with the holders of our Series A redeemable convertible preferred stock, the Company's Board of Directors would automatically be increased, with the holders of the Series A redeemable convertible preferred stock having the right to appoint the new directors, so that the holders of the Series A redeemable convertible preferred stock would have appointed a majority of the Board of Directors. This would give the holders of the Series A redeemable convertible preferred stock control of the Company. As of June 30, 2015, there were no triggering events that would allow the Series A redeemable convertible preferred stockholders to require the Company to redeem any of the Series A redeemable convertible preferred stock and the Company does not expect to incur any triggering events in fiscal 2015. As of June 30, 2015, the Company did not fail any financial or non-financial covenants related to the Company's Series A redeemable convertible preferred stock. However, if certain financial covenants are not met over the next six months, the Company would attempt to remedy the failed covenants and obtain waivers from the holders of the Series A redeemable convertible preferred stock. As described below, the Company obtained a waiver on April 20, 2015 to enable it to pay the required quarterly dividends on the Series A redeemable convertible preferred stock in cash for the fourth quarter of 2014 and the first quarter of 2015 and accrued its dividend payment for the required quarterly dividends on the Series A redeemable convertible preferred stock for the second quarter of 2015.

Holders of the Series A redeemable convertible preferred stock are entitled to receive quarterly dividends at the Prime Rate (Wall Street Journal Eastern Edition) plus 5% (up to a maximum amount of 10%), payable in cash, provided, that if the Company will not have at least $1.0 million in positive cash flow for any calendar quarter after giving effect to the payment of such dividends, the Company, at its election, can pay such dividends in whole or in part in cash, provided that cash flow from operations is not negative, and the remainder can be accrued or paid in common stock to the extent certain equity conditions are satisfied. As of December 31, 2014, due to the lack of sufficient surplus to pay dividends as required by the Delaware General Business Corporation Law, the Company was not permitted to pay the fourth quarter dividend in cash and accrued its fourth quarter 2014 dividend. As of March 31, 2015, the Company had sufficient surplus to pay dividends as required by the Delaware General Business Corporation law; however, the Company was not in compliance with the positive cash flow requirement to pay dividends in cash which would have required the Company to pay these dividends in kind through additional shares of this Series A redeemable convertible preferred stock. As a result, on April 20, 2015, the Company obtained a waiver from the holders to allow the Company to pay the fourth quarter 2014 and first quarter 2015 quarterly dividends in cash. These dividends were paid in cash in April 2015. As of June 30, 2015, due to the lack of sufficient surplus to pay dividends as required by the Delaware General Business Corporation Law, the Company was not permitted to pay the second quarter dividend in cash and accrued its second quarter 2015 dividend.


17



Each share of Series A redeemable convertible preferred stock has a vote equal to the number of shares of common stock into which the redeemable convertible preferred stock would be convertible as of the record date of September 13, 2013. The Company’s closing stock price on the record date was $1.23 per share, which results in voting power of 7,317,073 shares. In addition, holders of a majority of the Series A redeemable convertible preferred stock must approve certain actions, including any amendments to the Company's charter or bylaws that adversely affects the voting powers, preferences or other rights of the Series A redeemable convertible preferred stock; payment of dividends or distributions; any liquidation, capitalization, reorganization or any other fundamental transaction of the Company; issuance of certain equity securities senior to or in parity with the Series A redeemable convertible preferred stock as to dividend rights, redemption rights, liquidation preference and other rights; issuances of equity below the conversion price; incur any liens or borrowings other than non-convertible indebtedness from standard commercial lenders which does not exceed 80% of the company’s accounts receivable; and the redemption or purchase of any capital stock of the Company.
 
The Company has classified the Series A redeemable convertible preferred stock as temporary equity in the financial statements as it is subject to redemption at the option of the holder under certain circumstances.  As a result of the Company’s analysis of all the embedded conversion and put features within the Series A redeemable convertible preferred stock, the contingent redemption put options in the Series A redeemable convertible preferred stock were determined to not be clearly and closely related to the debt-type host and also did not meet any other scope exceptions for derivative accounting. Therefore the contingent redemption put options are being accounted for as derivative instruments and the fair value of these derivative instruments were bifurcated from the Series A redeemable convertible preferred stock and recorded as a liability. As of June 30, 2015 and December 31, 2014, the fair value of these derivative instruments was $100,561 and $137,171, respectively. The gain on the change in fair values of these derivative instruments for the three months ended June 30, 2015 and 2014, of $8,477 and $15,818, respectively, and for the six months ended June 30, 2015 and 2014, of $36,610 and $47,664, respectively, was included in “Interest and other income (loss), net” within the consolidated statement of operations.
  
At the time of issuance the Company recorded transaction costs of $268,323, the beneficial conversion feature of $2.0 million and fair value allocated to the embedded derivatives of $170,337. These amounts were recorded as discounts to the Series A redeemable convertible preferred stock and are being accreted to the Series A redeemable convertible preferred stock using the effective interest method through the stated redemption date of August 5, 2017, which represents the earliest redemption date of the instrument. The Company included deductions of $143,557 and $120,531 for the three months ended June 30, 2015 and 2014, respectively, and $280,974 and $235,907 for the six months ended June 30, 2015 and 2014, respectively, as accretion adjustments to net (loss) income attributable to common stockholders on the statement of operations and in determining (loss) income per share for each period. The Company also included deductions of $186,904 and $186,904 for the three months ended June 30, 2015 and 2014, respectively, and $377,690 and $373,808 for the six months ended June 30, 2015 and 2014, respectively, as adjustments to net (loss) income attributable to common shareholders on the statement of operations and in determining (loss) income per share for each period for accrued dividends on the Series A redeemable convertible preferred stock during the period. The fourth quarter of 2014 and the first quarter of 2015 dividends were paid in cash in April 2015 and the second quarter of 2015 dividend was accrued.

(14) Accumulated Other Comprehensive Loss 

The changes in Accumulated Other Comprehensive (Loss) Income, net of tax, for the three months ended June 30, 2015 are as follows:
 
 
Foreign Currency
Translation
 
Net Unrealized
Gains on Marketable
Securities
 
Net Minimum
Pension Liability
 
Total
Accumulated other comprehensive (loss) income at March 31, 2015
 
$
(1,562,996
)
 
$
2,611

 
$
29,080

 
$
(1,531,305
)
Other comprehensive (loss) income
 
 

 
 

 
 

 
 

Other comprehensive (loss) income before reclassifications
 
(4,477
)
 
1,792

 
1,639

 
(1,046
)
Amounts reclassified from accumulated other comprehensive (loss) income
 

 
(1,135
)
 
1,702

 
567

Total other comprehensive (loss) income
 
(4,477
)
 
657

 
3,341

 
(479
)
Accumulated other comprehensive (loss) income at June 30, 2015
 
$
(1,567,473
)
 
$
3,268

 
$
32,421

 
$
(1,531,784
)

18




The changes in Accumulated Other Comprehensive (Loss) Income, net of tax, for the six months ended June 30, 2015 are as follows:
 
 
Foreign Currency
Translation
 
Net Unrealized
Gains on Marketable
Securities
 
Net Minimum
Pension Liability
 
Total
Accumulated other comprehensive (loss) income at December 31, 2014
 
$
(1,536,495
)
 
$
(1,408
)
 
$
26,613

 
$
(1,511,290
)
Other comprehensive (loss) income
 
 

 
 

 
 

 
 

Other comprehensive (loss) income before reclassifications
 
(30,978
)
 
4,619

 
2,450

 
(23,909
)
Amounts reclassified from accumulated other comprehensive (loss) income
 

 
57

 
3,358

 
3,415

Total other comprehensive (loss) income
 
(30,978
)
 
4,676

 
5,808

 
(20,494
)
Accumulated other comprehensive (loss) income at June 30, 2015
 
$
(1,567,473
)
 
$
3,268

 
$
32,421

 
$
(1,531,784
)

The changes in Accumulated Other Comprehensive (Loss) Income, net of tax, for the three months ended June 30, 2014 are as follows:
 
 
Foreign Currency
Translation
 
Net Unrealized
Gains on Marketable
Securities
 
Net Minimum
Pension Liability
 
Total
Accumulated other comprehensive (loss) income at March 31, 2014
 
$
(1,820,191
)
 
$
1,595

 
$
(71,400
)
 
$
(1,889,996
)
Other comprehensive (loss) income
 
 

 
 

 
 

 
 

Other comprehensive (loss) income before reclassifications
 
(12,184
)
 
2,433

 
381

 
(9,370
)
Amounts reclassified from accumulated other comprehensive (loss) income
 

 

 
3,231

 
3,231

Total other comprehensive (loss) income
 
(12,184
)
 
2,433

 
3,612

 
(6,139
)
Accumulated other comprehensive (loss) income at June 30, 2014
 
$
(1,832,375
)
 
$
4,028

 
$
(67,788
)
 
$
(1,896,135
)
 
The changes in Accumulated Other Comprehensive (Loss) Income, net of tax, for the six months ended June 30, 2014 are as follows:
 
 
Foreign Currency
Translation
 
Net Unrealized
Gains on Marketable
Securities
 
Net Minimum
Pension Liability
 
Total
Accumulated other comprehensive (loss) income at December 31, 2013
 
$
(1,693,905
)
 
$
3,410

 
$
(71,892
)
 
$
(1,762,387
)
Other comprehensive (loss) income
 
 

 
 

 
 

 
 

Other comprehensive (loss) income before reclassifications
 
(138,470
)
 
618

 
(2,317
)
 
(140,169
)
Amounts reclassified from accumulated other comprehensive (loss) income
 

 

 
6,421

 
6,421

Total other comprehensive (loss) income
 
(138,470
)
 
618

 
4,104

 
(133,748
)
Accumulated other comprehensive (loss) income at June 30, 2014
 
$
(1,832,375
)
 
$
4,028

 
$
(67,788
)
 
$
(1,896,135
)

For the three and six months ended June 30, 2015 and 2014, the amounts reclassified to net loss related to the Company’s defined benefit plan and sale of marketable securities. These amounts are included within “Operating (loss) income” within the condensed consolidated statements of operations.

19



 
(15) Stockholders' Equity

Stock Repurchase Activity
 
On April 22, 2015, the Company’s Board of Directors (the "Board") approved a new stock buy-back  program (the "Repurchase Program"). The Repurchase Program authorizes management to repurchase in the aggregate up to five million shares of the Company's common stock. Repurchases may be made by the Company from time to time in open-market or privately-negotiated transactions as permitted by securities laws and other legal requirements, and subject to market conditions and other factors. The Repurchase Program supersedes and replaces the Company's prior stock buy-back program. The Repurchase Program does not obligate the Company to make repurchases at any specific time or situation. The Company was required to obtain approvals from the Series A redeemable convertible preferred stockholders for the Repurchase Program. The Repurchase Program does not have an expiration date and may be amended or terminated by the Board at any time without prior notice.
 
During the three and six months ended June 30, 2015, the Company repurchased 92,161 shares of its common stock at an aggregate purchase price of $137,859 or $1.50 per share. During the three and six months ended June 30, 2014, the Company did not repurchase any shares of its common stock. As of June 30, 2015, the Company had the authorization to repurchase 4,907,839 shares of its common stock based upon its judgment and market conditions.

(16)  Litigation
 
In view of the inherent difficulty of predicting the outcome of litigation, particularly where the claimants seek very large or indeterminate damages, the Company generally cannot predict what the eventual outcome of the pending matters will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines or penalties related to each pending matter may be.
 
In accordance with the authoritative guidance issued by the FASB on contingencies, the Company accrues anticipated costs of settlement, damages and losses for claims to the extent specific losses are probable and estimable. The Company records a receivable for insurance recoveries when such amounts are probable and collectable.  In such cases, there may be an exposure to loss in excess of any amounts accrued.  If, at the time of evaluation, the loss contingency related to a litigation  is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable and, the Company will expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, the Company will accrue the minimum amount of the range.

Stockholder Litigation
 
Company stockholders filed actions in the Suffolk County Division of the Supreme Court of the State of New York, putatively derivatively on behalf of the Company, against the Company, each of the Company’s Directors, Mr. Weber, the former Chief Financial Officer and Vice President of Operations of the Company, Wayne Lam, a former Vice president of the Company, the estate of Mr. Huai, the former Chairman, President and Chief Executive Officer of the Company, and Jason Lin, a former employee of the Company (the “Derivative Action”). The consolidated amended Derivative Action complaint alleged that the defendants breached their duties to the Company by: (1) causing or allowing the dissemination of false and misleading information; (2) failing to maintain internal controls; (3) failing to manage the Company properly; (4) unjustly enriching themselves; (5) abusing their control of the Company; and (6) wasting Company assets.

On March 5, 2013, the Suffolk County Division of the Supreme Court of the State of New York granted a motion made by all of the defendants in the Derivative Action, except Mr. Lin, and dismissed the Derivative Action as to all defendants other than Mr. Lin. The stockholders appealed the dismissal of the Derivative Action and on March 18, 2015, the Appellate Division, Second Department unanimously affirmed the New York Supreme Court’s decision dismissing the Derivative Action. The Plaintiffs have not timely sought leave to appeal the Appellate Division’s decision to the New York Court of Appeals, and thus the Company believes this matter has been finally resolved.

 The Company has insurance policies that were purchased to cover, among other things, lawsuits like the Derivative Action and a class action lawsuit that has been settled by the Company (the "Class Action"). The Company’s Directors and Officers (“D&O”) Insurance, is composed of more than one layer, with each layer written by a different insurance company. However, the events that gave rise to the claims in the Derivative Action and the Class Action caused the Company’s insurers to reserve their rights to disclaim, rescind, or otherwise not be obligated to provide coverage to the Company and certain other insureds under the policies. In light of these uncertainties, the Company entered into settlements with two of its insurers. Pursuant to these settlements, the Company will not receive repayment of all amounts it might otherwise have received.

20



 
Since October 1, 2012, the Company has recorded $7.3 million of total costs associated with the Class Action and the Derivative Actions. As a result of the agreement reached with the insurer carriers of the Company’s D&O insurance, the Company recorded insurance recoveries of $5.7 million since October 1, 2012 of which $5.7 million have been reimbursed by the Company's insurance carriers as of June 30, 2015.

 During the three and six months ended June 30, 2015, the Company recorded a benefit of $8,186 and expense of $8,842, respectively, of investigation, litigation and settlement related legal costs, net of expected recoveries, related to expenses related to the Class Action and Derivative Action lawsuits and other settlement related activities that are not recoverable through insurance. During the three and six months ended June 30, 2014, the Company recorded benefits of $5.3 million and $5.2 million, respectively, of investigation, litigation and settlement related legal costs, net of expected recoveries, related to expenses related to the Class Action and Derivative Action lawsuits, the Estate settlement and other settlement related activities that are not recoverable through insurance.

 Other Claims
 
The Company is subject to various legal proceedings and claims, asserted or unasserted, which arise in the ordinary course of business. While the outcome of any such matters cannot be predicted with certainty, such matters are not expected to have a material adverse effect on the Company’s financial condition or operating results.
 
The Company continues to assess certain litigation and claims to determine the amounts, if any, that the Company believes may be paid as a result of such claims and litigation and, therefore, additional losses may be accrued and paid in the future, which could materially adversely impact the Company’s financial results, its cash flows and its cash reserves.
 
(17) Segment Reporting
 
The Company is organized in a single operating segment for purposes of making operating decisions and assessing performance. Revenues from the United States to customers in the following geographical areas for the three and six months ended June 30, 2015 and 2014, and the location of long-lived assets as of June 30, 2015 and December 31, 2014, are summarized as follows:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,

 
2015
 
2014
 
2015
 
2014
Revenue:
 
 
 
 
 
 
 
 
Americas
 
$
3,232,572

 
$
4,514,752

 
$
17,633,091

 
$
8,879,344

Asia Pacific
 
3,425,971

 
3,215,581

 
6,106,287

 
7,139,885

Europe, Middle East, Africa and Other
 
2,894,046

 
3,572,334

 
5,753,087

 
7,284,937

Total Revenue
 
$
9,552,589

 
$
11,302,667

 
$
29,492,465

 
$
23,304,166

 

 
 
June 30, 2015
 
December 31, 2014
Long-lived assets:
 
 
 
 
Americas
 
$
7,882,853

 
$
8,327,602

Asia Pacific
 
655,442

 
822,277

Europe, Middle East, Africa and Other
 
215,838

 
233,669

Total long-lived assets
 
$
8,754,133

 
$
9,383,548

 
For the three months ended June 30, 2015, the Company had one customer that accounted for 13% of total revenue. For the three months ended June 30, 2014, the Company had one customer that accounted for 10% of total revenue.  As of June 30, 2015, the Company had two customers that accounted for 10% or more of the gross accounts receivable balance. As of December 31, 2014, the Company had one customer that accounted for 11% of the gross accounts receivable balance.
 
Due to cash collections of previously reserved accounts receivable balances, the Company recorded a benefit of $23,790 and provisions for returns of $43,735 during the three months ended June 30, 2015 and 2014. These amounts are included within revenues in the accompanying condensed consolidated statement of operations.

21




(18) Restructuring Costs
 
From time to time, the Company has undertaken restructuring and expense control measures to support its business performance and to align the Company’s cost structure with its resources. In the third quarter of 2013, the Company adopted the 2013 Plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expects to achieve on a go forward basis.  In connection with the 2013 Plan, the Company eliminated over 100 positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. The 2013 Plan was substantially completed by December 31, 2014; however, we expect the majority of the severance related costs to be paid once final settlement litigation is completed, which can be at various times over the next three to twenty-four months. The following table summarizes the activity related to restructuring liabilities recorded in connection with the Company's 2013 Plan:
 
 
Severance related costs
 
Facility and other costs
 
Total
Original charge
 
$
3,179,131

 
$
426,889

 
$
3,606,020

Utilized/Paid
 
(2,067,554
)
 
(231,973
)
 
(2,299,527
)
Balance at December 31, 2013
 
$
1,111,577

 
$
194,916

 
$
1,306,493

Provisions/Additions
 
365,174

 
770,136

 
1,135,310

Utilized/Paid
 
(653,325
)
 
(759,563
)
 
(1,412,888
)
Balance at December 31, 2014
 
$
823,426

 
$
205,489

 
$
1,028,915

Provisions/Additions
 
58,755

 
75,721

 
134,476

Utilized/Paid
 
(33,688
)
 
(147,967
)
 
(181,655
)
Balance at March 31, 2015
 
$
848,493

 
$
133,243

 
$
981,736

Provisions/Additions
 
(3,228
)
 
26,723

 
23,495

Utilized/Paid
 
(102,159
)
 
(139,054
)
 
(241,213
)
Balance at June 30, 2015
 
$
743,106

 
$
20,912

 
$
764,018

 
  
The severance related liabilities and facility and other liabilities are included within “accrued expenses” and "accounts payable" in the accompanying condensed consolidated balance sheets. The expenses under the 2013 Plan are included within “restructuring costs” in the accompanying condensed consolidated statements of operations.


22



Item 2.     Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
The following Management’s Discussion and Analysis of Financial Condition and Results of Operations contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.  These forward-looking statements can be identified by the use of predictive, future-tense or forward-looking terminology, such as “believes,” “anticipates,” “expects,” “estimates,” “plans,” “may,” “intends,” “will,” or similar terms.  Investors are cautioned that any forward-looking statements are not guarantees of future performance and involve significant risks and uncertainties, and that actual results may differ materially from those projected in the forward-looking statements. The following discussion should be read together with the consolidated financial statements and notes to those financial statements included elsewhere in this report.
 
OVERVIEW
 
On May 7, 2015, we released for general availability a new and innovative solution which is agnostic to any server hardware or storage hardware manufacturer; a horizontal software-defined storage platform inclusive of converged data services called FreeStor™. FreeStor addresses heterogeneous storage portfolios, all-flash array and hybrid flash array hardware manufacturers which do not have a software stack or do not have an enterprise-ready software stack, and solutions for managed service providers. FreeStor provides management, monitoring, reporting and provisioning through a web browser, tablet or smartphone which gives end-users or storage administrators the ability to be completely mobile when managing their virtual storage portfolio. In addition, during the first quarter of 2015, we announced the general availability of our Continuous Data Protection (“CDP) and Network Storage Server (“NSS”) version 8.0. CDP/NSS v. 8.0 includes re-architecting the IPStor™ core engine, IO paths, HA logic, a new IP Cluster engine, and overall data management and change tracking. This redesign was done in part to support the efforts of our previous joint-development agreement, as well as to create the framework for our next generation platform, FreeStor.

As we stated since the beginning of 2015, one of the key indicators of the initial success of our new product offerings will be our ability to secure new OEM all-flash array manufacturers, managed service providers and finally enterprise-class customers by the end of 2015. Since the release of CDP/NSS v.8.0 in February and the FreeStor platform in May, we added six new OEM all-flash array manufacturers and four new service providers who are implementing our FreeStor technology into their services portfolios. Generally, the new OEM partners have contractual annual minimum revenue commitments associated with their agreements.
 
2015 is the second full year whereby we offer more flexibility in licensing and payment structures, and as a result the product revenue for some transactions are being recognized ratably over the contractual maintenance term. We expect to continue this flexibility going forward, and also expect that the number of transactions with flexible sales terms will increase over time, which could result in variable periods for recognizing the revenue. Furthermore, our new FreeStor platform is sold on a subscription based offering with ratable revenue recognition recorded over the term of the subscription. Our support and maintenance revenue has always been recognized ratably over the term of the support and maintenance agreement and this will not change. Our professional services revenue will continue to be recognized upon delivery of the professional services unless it is sold as part of a bundled arrangement for which we have not established fair value for all undelivered elements which would require the revenue from the entire arrangement be recognized over the longest service term which would be the maintenance term.

One consequence of offering the flexibility in licensing, payment structures and subscription based offerings, which result in ratable revenue recognition, is that our GAAP revenue number will likely show greater fluctuations on a quarterly basis. Some transactions that would have been recognized into revenue in one quarter, will now be recognized over a longer period of time. For this reason, we look to our quarterly and our annual bookings, rather than to our quarterly and our annual revenue numbers, to gauge our progress.

We believe that the flexibility in licensing, payment structures and subscription based offerings has made and will continue to make us more competitive in the marketplace by allowing us more flexibility to work with end users to design licensing and payment terms that meet their needs.


23



 In July, 2013, we entered into a joint development agreement with Violin Memory, Inc., ("Violin") that provided us with $12.0 million of payments based on milestone deliverables that were completed by December 31, 2014. As of December 31, 2014, all of the milestone deliverables were met under our agreement with Violin, and we received the entire $12.0 million, of which $11.3 million was classified as deferred revenue. During the fourth quarter of 2014, we entered into a two-year maintenance and support agreement associated with the final deliverables, and as a result the remaining $11.3 million of deferred revenue associated with the milestone payments, or $1.4 million per quarter, was to be recognized as revenue over the two-year agreement. During the first quarter of 2015, Violin notified the Company that they elected to terminate their maintenance and support agreement and that there are no future services deliverables under any agreement, which resulted in the acceleration of the remaining deferred revenue of approximately $9.9 million which was recognized as product revenue during the quarter ended March 31, 2015.

For the second quarter of 2015, total revenue was $9.6 million, compared with $11.3 million in the second quarter of 2014. Bookings for the second quarter of 2015 totaled $8.3 million, compared with $13.3 million in the second quarter of 2014 and $11.7 million in the first quarter of 2015. Additionally, revenue was negatively impacted by foreign currency fluctuations of approximately 15%-19% as compared with the three months ended June 30, 2014.

Product revenue from our OEM partners was flat quarter over quarter. The decline in product revenue from our non-OEM partners of $0.7 million was primarily due to the mix of deals where revenue is recognized ratably over the term of the associated maintenance agreement, rather than upon transaction completion and product delivery and the pause in customer purchasing habits related to our legacy product offerings in anticipation of our new product refresh and FreeStor platform. During the second quarter of 2015, Hitachi Data Systems accounted for 13% of our total revenue.

Deferred revenue as of June 30, 2015 totaled $26.4 million, a decrease of 20% compared with June 30, 2014, and a decrease of 28% compared with December 31, 2014. Excluding the impact of our joint-development agreement, deferred revenue as of June 30, 2015 increased 3% as compared with June 30, 2014, and increased 5% as compared with December 31, 2014.
  
Support and services revenue decreased 16% from $7.1 million for the three months ended June 30, 2014 to $5.9 million for the three months ended June 30, 2015. The decline was due primarily from the softness in our legacy product portfolio sales over the past twelve months prior to the release of new product offerings during the first half of 2015, and the continued wind-down in maintenance revenue from certain legacy OEM partners.

Overall, our operating expenses increased 40% or $2.9 million to $10.0 million for the three months ended June 30, 2015 from $7.1 million in the same period in 2014. Our operating expenses for the three months ended June 30, 2014, benefited from a litigation settlement of $5.3 million associated with our then outstanding lawsuit with the estate of our former Chief Executive Officer, as compared with a benefit of less than $0.1 million during the same period in 2015. Excluding the $5.3 million gain recorded for the three months ended June 30, 2014, our operating expenses decreased $2.4 million, or 19%, to $10.0 million for the three months ended June 30, 2015, compared with $12.4 million for the same period in 2014.

Net loss for the three months ended June 30, 2015 was $2.7 million, compared with net income of $1.3 million for the three months ended June 30, 2014. Our net income for the three months ended June 30, 2014 includes the impact of the gain recorded for the settlement of the Estate litigation of $5.3 million.

RESULTS OF OPERATIONS – FOR THE THREE MONTHS ENDED JUNE 30, 2015 COMPARED WITH THE THREE MONTHS ENDED JUNE 30, 2014.
 
Our primary sales focus is on selling software solutions and platforms which includes stand-alone software applications, software integrated with industry standard hardware and sold as one complete integrated solution or sold on a subscription or consumption basis. As a result, our revenue is classified as either: (i) product revenue, or (ii) support and services revenue. Product revenue consists of both integrated solutions and stand-alone software revenues. Support and services revenue consists of both maintenance revenue and professional services revenue.

24



 
Total revenue for the three months ended June 30, 2015 decreased 15% to $9.6 million, compared with $11.3 million for the three months ended June 30, 2014. Our cost of revenue decreased 2% to $2.7 million for the three months ended June 30, 2015, compared with $2.7 million for the three months ended June 30, 2014. Our operating expenses increased 40% from $7.1 million for the three months ended June 30, 2014 to $10.0 million for the three months ended June 30, 2015. Our operating expenses for the three months ended June 30, 2014, benefited from a litigation settlement of $5.3 million associated with our then outstanding lawsuit with the estate of our former Chief Executive Officer, as compared with a benefit of less than $0.1 million during the same period in 2015. Also included in the operating results for the three months ended June 30, 2015 and 2014 were; (i) $0.4 million of share-based compensation expense in both periods; and (ii) less than $0.1 million and $0.6 million, respectively, of restructuring costs. Net loss for the three months ended June 30, 2015 was $2.7 million, compared with net income of $1.3 million for the three months ended June 30, 2014. Net loss attributable to common stockholders, which includes the effects of Series A redeemable convertible preferred stock dividends and accretion of the discounts related to the issuance of the Series A redeemable convertible preferred stock, was $3.0 million for the three months ended June 30, 2015, compared with net income of $1.0 million for the three months ended June 30, 2014. Excluding the gain of $5.3 million recorded on the Estate settlement during the three months ended June 30, 2014, net loss attributable to common stockholders was $4.3 million.

Overall, our total operating expenses, excluding the $5.3 million gain recorded on the Estate litigation settlement for the three months ended June 30, 2014, decreased $2.4 million, or 19%, to $10.0 million for the three months ended June 30, 2015, compared with $12.4 million for the same period in 2014. This decrease was primarily attributable to our tighter expense controls and overall operational efficiencies which better align our current business plan on a run-rate basis. These efficiencies included among other items, a stream-lined personnel related costs, global overhead costs and efficiencies realized on our redesigned go-to-market coverage models. Additionally, our restructuring costs decreased $0.5 million compared with the three months ended June 30, 2014. Our worldwide headcount was 247 employees as of June 30, 2015, compared with 277 employees as of June 30, 2014. We will continue to evaluate the appropriate headcount levels to properly align our resources with our current and long-term outlook and to take actions in areas of the Company that are not performing.

Revenue 
 
 
Three Months Ended June 30,
 
 
2015
 
2014
Revenue:
 
 
 
 
Product revenue
 
$
3,650,504

 
$
4,252,486

Support and services revenue
 
5,902,085

 
7,050,181

Total Revenue
 
$
9,552,589

 
$
11,302,667

Year-over-year percentage change
 
 

 
 

Product revenue
 
(14)%
 
(35)%
Support and services revenue
 
(16)%
 
(5)%
Total percentage change
 
(15)%
 
(19)%

Product revenue
 
Product revenue is comprised of sales of both licenses for our software solutions and sales of the platforms on which the software is installed. This includes stand-alone software applications and software integrated with industry standard hardware, sold as one complete integrated solution or sold on a subscription or consumption basis. The products are sold through our OEMs, and through (i) value-added resellers, (ii) distributors, and/or (iii) directly to end-users (collectively “non-OEMs”). These revenues are recognized when all the applicable criteria under Generally Accepted Accounting Principles in the United States are met. Product revenue decreased 14% from $4.3 million for the three months ended June 30, 2014, to $3.7 million for the three months ended June 30, 2015. These amounts are net of a sales return benefit of less than $0.1 million recognized during the three months ended June 30, 2015 resulting from the impact of our collection efforts of previously reserved accounts receivable, and a sales return expense of less than $0.1 million recognized during the three months ended June 30, 2014. Product revenue represented 38% of our total revenue for both the three months ended June 30, 2015 and 2014.


25



Product revenue from our OEM partners was flat, while product revenue from our non-OEM partners decreased $0.7 million for the three months ended June 30, 2015, compared with the same period in 2014. The decline in product revenue from our non-OEM channel was primarily due to, (i) a decrease in the volume of sales from our legacy product line(s) as partners and customers evaluate and plan for the transition to our re-architectured version 8.0 suite of products and the recently released FreeStor platform, (ii) challenges in obtaining new customer acquisitions, and (iii) the mix of deals where revenue is recognized ratably over the term of the associated maintenance agreement, rather than upon transaction completion and product delivery. Product revenue from our non-OEM partners represented 81% and 84% of our total product revenue for the three months ended June 30, 2015 and 2014, respectively. Product revenue from our OEM partners represented 19% and 16% of our total product revenue for the three months ended June 30, 2015 and 2014, respectively.

We continue to invest in our product portfolio by refreshing our existing product lines and developing our next generation of innovative product offerings to drive our sales volume in support of our long-term outlook.

Support and services revenue

Support and services revenue is comprised of revenue from (i) maintenance and technical support services, (ii) professional services primarily related to the implementation of our software, and (iii) engineering services. Revenue derived from maintenance and technical support contracts are deferred and recognized ratably over the contractual maintenance term. Professional services revenue is recognized in the period that the related services are performed or over the contractual term if VSOE does not exist for all undelivered elements. Engineering services are recognized upon customer acceptance or over the remaining contract term if VSOE does not exist for the remaining deliverables upon acceptance. Support and services revenue decreased 16% from $7.1 million for the three months ended June 30, 2014 to $5.9 million for the three months ended June 30, 2015. The decrease in support and services revenue was attributable to a decrease in both maintenance and technical support services revenue and professional services revenue.

Maintenance and technical support services revenue decreased from $6.6 million for the three months ended June 30, 2014 to $5.7 million for the three months ended June 30, 2015. Our maintenance and technical support service revenue results primarily from (i) the purchase of maintenance and support contracts by our customers, and (ii) the renewal of maintenance and support contracts by our existing and new customers after their initial contracts expire. During the three months ended June 30, 2015, the decline in maintenance and technical support services revenue was primarily attributable to a decrease of $0.9 million in maintenance revenue from our non-OEM partners primarily driven by the softness in our legacy product portfolio sales over the past twelve months prior to the release of our new product offerings during the first half of 2015 and the continued wind-down in maintenance revenue from certain legacy OEM partners of $0.1 million.
 
Professional services revenue decreased $0.2 million, to $0.2 million for the three months ended June 30, 2015, compared with $0.4 million for the same period in 2014. Professional services revenue varies from period to period based upon (i) the number of solutions sold during the existing and previous periods, (ii) the number of our customers who elect to purchase professional services, (iii) the number of professional services contracts that are performed during the period, and (iv) the number of customers who elect to purchase engineering services. We expect professional services revenue to continue to vary from period to period based upon the number of customers who elect to utilize our professional services upon purchasing any of our solutions.
 
Cost of Revenue
 
 
Three Months Ended June 30,
 
 
2015
 
2014
Cost of revenue:
 
 
 
 
Product
 
$
718,057

 
$
698,222

Support and service
 
1,940,729

 
2,009,441

Total cost of revenue
 
$
2,658,786

 
$
2,707,663

Total Gross Profit
 
$
6,893,803

 
$
8,595,004

Gross Margin:
 
 

 
 

Product
 
80%
 
84%
Support and service
 
67%
 
71%
Total gross margin
 
73%
 
76%


26



 Cost of revenue, gross profit and gross margin
 
Cost of product revenue consists primarily of industry standard hardware we purchase and integrate with our software for turn-key integrated solutions, personnel costs, amortization of capitalized software and shipping and logistics costs. Cost of support and service consists primarily of personnel and other costs associated with providing software implementations, technical support under maintenance contracts and training.

Cost of product revenue for the three months ended June 30, 2015 increased less than $0.1 million, or 3%, to $0.7 million, compared with $0.7 million for the same period in 2014. Product gross margin decreased to 80% for the three months ended June 30, 2015, compared with 84% for the same period in 2014. The decrease in product gross margin was primarily attributable to a decrease in the percentage of our product revenue from sales of our stand-alone software applications, which have higher gross margins than sales of our fully integrated solutions with hardware appliances, compared with the same period in 2014. Our cost of support and service revenue for the three months ended June 30, 2015 decreased $0.1 million, or 3%, to $1.9 million, compared with $2.0 million for the same period in 2014. Support and service gross margin decreased to 67% for the three months ended June 30, 2015 from 71% for the same period in 2014. The decrease in support and service gross margin was primarily attributable to the decrease in our support and services revenues.
 
Total gross profit decreased $1.7 million, or 20%, to $6.9 million for the three months ended June 30, 2015 from $8.6 million for the same period in 2014. Total gross margin decreased to 73% for the three months ended June 30, 2015, from 76% for the same period in 2014. The decrease in our total gross margin was primarily due to the decrease in revenue and the mix of sales. Generally, our total gross profits and total gross margins fluctuate based on several factors, including (i) revenue growth levels, (ii) changes in personnel headcount and related costs, and (iii) our product offerings and mix of sales.

Operating Expenses
 
Research and Development Costs
 
Research and development costs consist primarily of personnel costs for product development, share-based compensation expense, and other related costs associated with the development of new products, enhancements to existing products, quality assurance and testing. Research and development costs decreased $0.1 million, or 2%, to $3.1 million for the three months ended June 30, 2015, from $3.1 million in the same period in 2014. The decrease in research and development costs was primarily related to the decrease in personnel related costs during the second quarter of 2015 as compared with the same period in 2014, as a result of the on-going new product development that was performed throughout 2014. We believe we continue to provide adequate levels of resources in support of our research and development activities to continue to enhance and to test our core products and in the development of new innovative products, features and options. Share-based compensation expense included in research and development costs was $0.1 million for each of the three months ended June 30, 2015 and June 30, 2014.
 
Selling and Marketing
 
Selling and marketing expenses consist primarily of sales and marketing personnel and related costs, share-based compensation expense, travel, public relations expense, marketing literature and promotions, commissions, trade show expenses, and the costs associated with our foreign sales offices. Selling and marketing expenses decreased $2.0 million, or 31%, to $4.4 million for the three months ended June 30, 2015, from $6.4 million for the same period in 2014. The decrease in selling and marketing expenses was primarily attributable to a decrease in personnel related costs, including commission expense as a result of decreased bookings in the second quarter of 2015 compared with the same period in 2014 as well as a decrease in our sales and marketing headcount. In addition, the decrease is attributable to a decrease in professional fees primarily related to an investment made in 2014 to penetrate certain market verticals under a one-year arrangement, which ended at March 31, 2015. Share-based compensation expense included in selling and marketing was $0.1 million for each of the three months ended June 30, 2015 and June 30, 2014.
 
General and Administrative
 
General and administrative expenses consist primarily of personnel costs of general and administrative functions, share-based compensation expense, public company related costs, directors’ and officers’ insurance, legal and professional fees, bad debt expense, and other general corporate overhead costs. General and administrative expenses increased $0.2 million, or 9%, to $2.6 million for the three months ended June 30, 2015, compared with $2.4 million for the same period in 2014. The increase in general and administrative expenses was primarily related to $0.5 million of termination costs incurred by the Company during the second quarter of 2015 due to the termination of a contract with an internet communication provider, partly offset by a decrease in personnel related costs. Share-based compensation expense included in general and administrative expenses was $0.2 million for the three months ended June 30, 2015 compared with $0.3 million for the three months ended June 30, 2014.

27




Investigation, Litigation and Settlement Related Costs
 
During the three months ended June 30, 2015, our investigation, litigation, and settlement related costs totaled a benefit of less than $0.1 million, which was comprised of legal expenses, net of expenses expected to be recoverable through insurance, related to the derivative lawsuit. During the three months ended June 30, 2014, our investigation, litigation, and settlement related costs totaled a benefit of $5.3 million primarily related to the settlement of the Estate litigation. For further information, refer to Note (16) Litigation, to our unaudited condensed consolidated financial statements.

Restructuring costs
 
From time to time, we have undertaken restructuring and expense control measures to support our business performance and to align our cost structure with our resources. In the third quarter of 2013, we adopted a restructuring plan intended to better align our cost structure with the skills and resources required to more effectively execute our long-term growth strategy and to support revenue levels we expect to achieve on a go forward basis. In connection with the 2013 Plan, we eliminated over 100 positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. Restructuring costs incurred during the three months ended June 30, 2015 and 2014, under the 2013 Plan were less than $0.1 million and $0.6 million, respectively. For further information, refer to Note (18) Restructuring Costs, to our unaudited condensed consolidated financial statements.
 
Interest and Other Income (Loss), net
 
We invest our cash primarily in money market funds, commercial paper, government securities, and corporate bonds. As of June 30, 2015, our cash, cash equivalents, and marketable securities totaled $18.8 million, compared with $28.8 million as of June 30, 2014. Interest and other income (loss), net, increased $0.1 million to income of $0.1 million for the three months ended June 30, 2015 compared with a loss of less than $0.1 million for the same period in 2014. The change in interest and other income (loss), net, was primarily due to a foreign currency gain of $0.1 million during the three months ended June 30, 2015, compared with a foreign currency loss of less than $0.1 million for the same period in 2014.

Income Taxes
 
Our provision for income taxes consists of federal, state and local, and foreign taxes. For the three months ended June 30, 2015 and 2014, the Company recorded an income tax benefit of $0.4 million and an income tax provision of $0.1 million, respectively, consisting primarily of federal, state and local and foreign taxes. Our domestic deferred tax assets are not realizable on a more-likely-than-not basis and, therefore, we have recorded a full valuation allowance against our domestic deferred tax assets. During the three months ended June 30, 2015, our conclusion did not change with respect to our domestic deferred tax assets and therefore, we have not recorded any benefit for our expected net domestic deferred tax assets for the full year 2015 estimated annual effective tax rate.

RESULTS OF OPERATIONS – FOR THE SIX MONTHS ENDED JUNE 30, 2015 COMPARED WITH THE SIX MONTHS ENDED JUNE 30, 2014.
 
Total revenue for the six months ended June 30, 2015 increased 27% to $29.5 million, compared with $23.3 million for the six months ended June 30, 2014. This increase was mainly attributable to the accelerated revenue recorded associated with our joint development agreement. Excluding $9.9 million of accelerated revenue related to our joint development agreement, total revenue decreased 16% to $19.6 million for the six months ended June 30, 2015, compared with $23.3 million for the six months ended June 30, 2014. Our cost of revenue decreased 6% to $5.1 million for the six months ended June 30, 2015, compared with $5.4 million for the six months ended June 30, 2014. Our operating expenses increased 11% from $19.1 million for the six months ended June 30, 2014 to $21.2 million for the six months ended June 30, 2015. Our operating expenses for the six months ended June 30, 2014, benefited from a litigation settlement of $5.3 million associated with our then outstanding lawsuit with the estate of our former Chief Executive Officer, as compared with expense of less than $0.1 million during the same period in 2015. Also included in the operating results for the six months ended June 30, 2015 and 2014 were; (i) $0.8 million of share-based compensation expense for both periods; and (ii) $0.1 million and $0.8 million, respectively, of restructuring costs. Net income for the six months ended June 30, 2015 was $2.6 million, compared with a net loss of $1.5 million for the six months ended June 30, 2014. Net income attributable to common stockholders, which includes the effects of Series A redeemable convertible preferred stock dividends and accretion of the discounts related to the issuance of the Series A redeemable convertible preferred stock, was $1.9 million for the six months ended June 30, 2015, compared with a loss of $2.1 million for the six months ended June 30, 2014.


28



Overall, our total operating expenses, excluding the $5.3 million gain recorded on the Estate litigation settlement for the six months ended June 30, 2014, decreased $3.2 million, or 13%, to $21.2 million for the six months ended June 30, 2015, compared with $24.4 million for the same period in 2014. This decrease was primarily attributable to our tighter expense controls and overall operational efficiencies which better align our current business plan on a run-rate basis. These efficiencies included among other items, a stream-lined personnel related costs, global overhead costs and efficiencies realized on our redesigned go-to-market coverage models. Additionally, our restructuring costs decreased $0.6 million compared with the six months ended June 30, 2014. Our worldwide headcount was 247 employees as of June 30, 2015, compared with 277 employees as of June 30, 2014.

Revenue 
 
 
Six Months Ended June 30, 2015
 
 
2015
 
2014
Revenue:
 
 
 
 
Product revenue
 
$
17,620,871

 
$
9,215,545

Support and services revenue
 
11,871,594

 
14,088,621

Total Revenue
 
$
29,492,465

 
$
23,304,166

Year-over-year percentage change
 
 

 
 

Product revenue
 
91%
 
(36)%
Support and services revenue
 
(16)%
 
(6)%
Total percentage change
 
27%
 
(20)%

Product revenue
 
Product revenue increased 91% from $9.2 million for the six months ended June 30, 2014, to $17.6 million for the six months ended June 30, 2015 primarily due to a total of $11.3 million of product revenue recognized related to our joint development agreement, of which $8.5 million was accelerated during the six months ended June 30, 2015. These amounts are net of a sales return expense of less than $0.1 million recognized during the six months ended June 30, 2015 and a sales return benefit of less than $0.1 million recognized during the six months ended June 30, 2014, resulting from the impact of our collection efforts of previously reserved accounts receivable. Product revenue represented 60% and 40% of our total revenue for the six months ended June 30, 2015 and 2014, respectively. Excluding product revenue recognized related to our joint development agreement, product revenue decreased $2.9 million or 31% to $6.3 million for the six months ended June 30, 2015 compared with the same period in 2014.

Excluding the joint development agreement revenue, product revenue from our OEM partners decreased $0.6 million, while product revenue from our non-OEM partners decreased $2.3 million for the six months ended June 30, 2015, compared with the same period in 2014. The decrease in OEM product revenue was due to a decrease in sales volume from one of our largest OEM partners in China. The decline in product revenue from our non-OEM partners was primarily due to, (i) a decrease in the volume of sales from our legacy product line(s) as partners and customers evaluate and plan for the transition to our re-architectured version 8.0 suite of products and the recently released FreeStor platform, (ii) challenges in obtaining new customer acquisitions, and (iii) the mix of deals where revenue is recognized ratably over the term of the associated maintenance agreement, rather than upon transaction completion and product delivery. Product revenue from our non-OEM partners represented 29% and 81% of our total product revenue for the six months ended June 30, 2015 and 2014, respectively. Product revenue from our OEM partners represented 71% and 19% of our total product revenue for the six months ended June 30, 2015 and 2014, respectively. Excluding the joint development agreement product revenue, our non-OEM partners and OEM partners represented 80% and 20%, respectively, of our total product revenue for the six months ended June 30, 2015.

We continue to invest in our product portfolio by refreshing our existing product lines and developing our next generation of innovative product offerings to drive our sales volume in support of our long-term outlook.

Support and services revenue

Support and services revenue decreased 16% from $14.1 million for the six months ended June 30, 2014 to $11.9 million for the six months ended June 30, 2015. The decrease in support and services revenue was attributable to a decrease in both maintenance and technical support services revenue and professional services revenue.


29



Maintenance and technical support services revenue decreased from $13.3 million for the six months ended June 30, 2014 to $11.4 million for the six months ended June 30, 2015. Our maintenance and technical support service revenue results primarily from (i) the purchase of maintenance and support contracts by our customers, and (ii) the renewal of maintenance and support contracts by our existing and new customers after their initial contracts expire. During the six months ended June 30, 2015, the decline in maintenance and technical support services revenue was primarily attributable to a decrease of $1.3 million in maintenance revenue from our non-OEM partners primarily driven by the softness in our legacy product portfolio sales over the past twelve months prior to the release of our new product offerings during the first half of 2015 and the continued wind-down in maintenance revenue from certain legacy OEM partners of $0.6 million.
 
Professional services revenue decreased $0.4 million, to $0.4 million for the six months ended June 30, 2015, compared with $0.8 million for the same period in 2014. Professional services revenue varies from period to period based upon (i) the number of solutions sold during the existing and previous periods, (ii) the number of our customers who elect to purchase professional services, (iii) the number of professional services contracts that are performed during the period, and (iv) the number of customers who elect to purchase engineering services. We expect professional services revenue to continue to vary from period to period based upon the number of customers who elect to utilize our professional services upon purchasing any of our solutions.
 
Cost of Revenue
 
 
Six Months Ended June 30, 2015
 
 
2015
 
2014
Cost of revenue:
 
 
 
 
Product
 
$
1,108,281

 
$
1,273,346

Support and service
 
3,960,747

 
4,108,692

Total cost of revenue
 
$
5,069,028

 
$
5,382,038

Total Gross Profit
 
$
24,423,437

 
$
17,922,128

Gross Margin:
 
 

 
 

Product
 
94%
 
86%
Support and service
 
67%
 
71%
Total gross margin
 
83%
 
77%

 Cost of revenue, gross profit and gross margin
 
Cost of product revenue for the six months ended June 30, 2015 decreased $0.2 million, or 13%, to $1.1 million, compared with $1.3 million for the same period in 2014. Product gross margin increased to 94% for the six months ended June 30, 2015, compared with 86% for the same period in 2014. The increase in product gross margin was primarily attributable to the product revenue recorded in 2015 related to our joint development agreement. Excluding the joint development agreement revenue, product gross margin decreased to 83% for the six months ended June 30, 2015 as a result of a decrease in the percentage of our product revenue from sales of our stand-alone software applications, which have higher gross margins than sales of our fully integrated solutions with hardware appliances, compared with the same period in 2014. Our cost of support and service revenue for the six months ended June 30, 2015 decreased $0.1 million, or 4%, to $4.0 million, compared with $4.1 million for the same period in 2014. Support and service gross margin decreased to 67% for the six months ended June 30, 2015 from 71% for the same period in 2014. The decrease in support and service gross margin was primarily attributable to the decrease in our support and services revenues.
 
Total gross profit increased $6.5 million, or 36%, to $24.4 million for the six months ended June 30, 2015 from $17.9 million for the same period in 2014. Total gross margin increased to 83% for the six months ended June 30, 2015, from 77% for the same period in 2014. Total gross margin excluding the joint development agreement revenue was 72% for the six months ended June 30, 2015. The decrease in our total gross margin, excluding the joint development agreement revenue, was primarily due to the decrease in revenue, excluding the joint development agreement revenue and the mix of sales. Generally, our total gross profits and total gross margins fluctuate based on several factors, including (i) revenue growth levels, (ii) changes in personnel headcount and related costs, and (iii) our product offerings and mix of sales.


30



Operating Expenses
 
Research and Development Costs
 
Research and development costs decreased $0.2 million, or 3%, to $6.3 million for the six months ended June 30, 2015, from $6.5 million in the same period in 2014. The decrease in research and development costs was primarily related to the decrease in personnel related costs during the six months ended June 30, 2015 as compared with the same period in 2014, as a result of the on-going new product development that was performed throughout 2014. We believe we continue to provide adequate levels of resources in support of our research and development activities to continue to enhance and to test our core products and in the development of new innovative products, features and options. Share-based compensation expense included in research and development costs was $0.2 million for each of the six months ended June 30, 2015 and June 30, 2014.
 
Selling and Marketing
 
Selling and marketing expenses decreased $2.6 million, or 21%, to $9.7 million for the six months ended June 30, 2015, from $12.2 million for the same period in 2014. The decrease in selling and marketing expenses was primarily attributable to a decrease in personnel related costs, including commission expense as a result of decreased bookings for the six months ended June 30, 2015 compared with the same period in 2014 as well as a decrease in our sales and marketing headcount. Share-based compensation expense included in selling and marketing was $0.2 million for each of the six months ended June 30, 2015 and June 30, 2014.
 
General and Administrative
 
General and administrative expenses increased $0.3 million, or 7%, to $5.1 million for the six months ended June 30, 2015, compared with $4.8 million for the same period in 2014. The increase in general and administrative expenses was primarily related to $0.5 million of termination costs incurred by the Company during the six months ended June 30, 2015 due to the termination of a contract with an internet communication provider, partly offset by a decrease in personnel related costs. Share-based compensation expense included in general and administrative expenses was $0.4 million for each of the six months ended June 30, 2015 and June 30, 2014.

Investigation, Litigation and Settlement Related Costs
 
During the six months ended June 30, 2015, our investigation, litigation, and settlement related costs totaled less than $0.1 million, which was comprised of legal expenses, net of expenses expected to be recoverable through insurance, related to the derivative lawsuit. During the six months ended June 30, 2014, our investigation, litigation, and settlement related costs totaled a benefit of $5.3 million primarily related to the settlement of the Estate litigation. For further information, refer to Note (16) Litigation, to our unaudited condensed consolidated financial statements.

Restructuring costs
 
In the third quarter of 2013, we adopted a restructuring plan intended to better align our cost structure with the skills and resources required to more effectively execute our long-term growth strategy and to support revenue levels we expect to achieve on a go forward basis. In connection with the 2013 Plan, we eliminated over 100 positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities.  Restructuring costs incurred during the six months ended June 30, 2015 and 2014, under the 2013 Plan were $0.2 million and $0.8 million, respectively. For further information, refer to Note (18) Restructuring Costs, to our unaudited condensed consolidated financial statements.
 
Interest and Other Income (Loss), net
 
We invest our cash primarily in money market funds, commercial paper, government securities, and corporate bonds. As of June 30, 2015, our cash, cash equivalents, and marketable securities totaled $18.8 million, compared with $28.8 million as of June 30, 2014. Interest and other income (loss), net, decreased $0.4 million to a loss of $0.4 million for the six months ended June 30, 2015 compared with income of less than $0.1 million for the same period in 2014. The change in interest and other income (loss), net, was primarily due to a foreign currency loss of $0.4 million during the six months ended June 30, 2015, compared with a foreign currency gain of less than $0.1 million for the same period in 2014.


31



Income Taxes
 
Our provision for income taxes consists of federal, state and local, and foreign taxes. For both the six months ended June 30, 2015 and 2014, the Company recorded an income tax provision of $0.3 million, consisting primarily of federal, state and local and foreign taxes. Our domestic deferred tax assets are not realizable on a more-likely-than-not basis and, therefore, we have recorded a full valuation allowance against our domestic deferred tax assets. During the six months ended June 30, 2015, our conclusion did not change with respect to our domestic deferred tax assets and therefore, we have not recorded any benefit for our expected net domestic deferred tax assets for the full year 2015 estimated annual effective tax rate.

LIQUIDITY AND CAPITAL RESOURCES 
 
 
Six Months Ended June 30,
 
 
2015
 
2014
Cash (used in) provided by:
 
 
 
 
Operating activities
 
$
(1,647,342
)
 
$
1,434,303

Investing activities
 
(207,356
)
 
(2,065,679
)
Financing activities
 
(473,137
)
 
(378,599
)
Effect of exchange rate changes
 
(238,507
)
 
55,320

Net decrease in cash and cash equivalents
 
$
(2,566,342
)
 
$
(954,655
)
 
Our principal sources of liquidity are our cash, cash equivalents, and marketable securities balances generated from operating, investing and financing activities. Our cash and cash equivalents and marketable securities balance as of June 30, 2015 totaled $18.8 million, compared with $21.8 million as of December 31, 2014. Cash and cash equivalents totaled $8.3 million and marketable securities totaled $10.5 million at June 30, 2015. As of December 31, 2014, we had $10.9 million in cash and cash equivalents and $10.9 million in marketable securities.
 
Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect, failure to achieve minimum financial covenants or failure of the Company to issue shares upon conversion of the Series A redeemable convertible preferred stock in accordance with its obligations, the Series A redeemable convertible preferred stockholders may require us to redeem all or some of the Series A redeemable convertible preferred stock at a price equal to the greater of 100% of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price as of the occurrence of the triggering event. On or after August 5, 2017, each Series A redeemable convertible preferred stockholder can require us to redeem its Series A redeemable convertible preferred stock in cash at a price equal to 100% of the stated value being redeemed plus accrued and unpaid dividends. As of June 30, 2015, there were no triggering events that would allow the Series A redeemable convertible preferred stockholders to require us to redeem any of the Series A redeemable convertible preferred stock and we do not expect to incur any triggering events in fiscal 2015. As of June 30, 2015, we did not fail any financial or non-financial covenants related to our Series A redeemable convertible preferred stock. However, if certain financial covenants are not met over the next six months, we would attempt to remedy the failed covenants and obtain waivers from the holders of the Series A redeemable convertible preferred stock. As described below, we