Delaware
|
06-1515824
|
(State
or other jurisdiction of
|
(I.R.S.
Employer Identification Number)
|
incorporation
or organization)
|
(Number of Shares Outstanding
|
||
(Title of Class)
|
as of May 4, 2010)
|
|
Common
Stock, par value $0.01 per share
|
31,552,197
|
Part
I - FINANCIAL INFORMATION
|
1
|
|
Item
1.
|
Interim
Condensed Consolidated Financial Statements
|
1
|
Condensed
Consolidated Balance Sheets
|
1
|
|
Condensed
Consolidated Statements of Operations
|
2
|
|
Condensed
Consolidated Statements of Cash Flows
|
3
|
|
Notes
to Condensed Consolidated Financial Statements
|
4
|
|
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
16
|
Item
3.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
23
|
Item
4.
|
Controls
and Procedures
|
23
|
PART
II - OTHER INFORMATION
|
25
|
|
Item
1.
|
Legal
Proceedings
|
25
|
Item
1A.
|
Risk
Factors
|
26
|
Item
2.
|
Unregistered
Sales of Equity Securities and Use of Proceeds
|
27
|
Item
3.
|
Defaults
Upon Senior Securities
|
27
|
Item
4.
|
Submission
of Matters to a Vote of Security Holders
|
27
|
Item
5.
|
Other
Information
|
27
|
Item
6.
|
Exhibits
|
28
|
SIGNATURES
|
29
|
March
31, 2010
|
December
31, 2009
|
|||||||
|
(Unaudited)
|
(audited)
|
||||||
assets
|
||||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents (Note 2)
|
$ | 28,235,568 | $ | 60,542,494 | ||||
Marketable
securities (Note 2)
|
14,411,320 | 2,812,400 | ||||||
Accounts
receivable, net of allowance for doubtful accounts of $230,454 as
of March 31, 2010 and $276,668 as of December 31,
2009
|
4,608,700 | 5,963,209 | ||||||
Other
receivables
|
2,787,079 | 2,774,898 | ||||||
Prepaid
expenses and other current assets
|
1,765,715 | 1,691,038 | ||||||
Total
current assets
|
51,808,382 | 73,784,039 | ||||||
Property
and equipment, net of accumulated depreciation and amortization of
$13,617,005 as of March 31, 2010 and $13,263,460 as of December 31,
2009
|
7,211,893 | 7,493,020 | ||||||
Marketable
securities (Note 2)
|
37,312,425 | 17,515,687 | ||||||
Long
term investment
|
555,000 | 555,000 | ||||||
Other
assets
|
163,577 | 167,477 | ||||||
Goodwill
|
24,286,616 | 24,286,616 | ||||||
Other
intangibles, net
|
7,851,368 | 8,210,105 | ||||||
Restricted
cash (Note 2)
|
1,702,079 | 1,702,079 | ||||||
Total
assets
|
$ | 130,891,340 | $ | 133,714,023 | ||||
liabilities
and stockholders’ equity
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable
|
$ | 2,110,635 | $ | 2,164,809 | ||||
Accrued
expenses
|
4,704,753 | 7,894,136 | ||||||
Deferred
revenue
|
18,826,107 | 17,306,737 | ||||||
Other
current liabilities
|
130,041 | 132,682 | ||||||
Liabilities
of discontinued operations
|
223,478 | 223,165 | ||||||
Total
current liabilities
|
25,995,014 | 27,721,529 | ||||||
Deferred
tax liability
|
288,000 | 288,000 | ||||||
Other
liabilities
|
1,588,873 | 1,230,591 | ||||||
Total
liabilities
|
27,871,887 | 29,240,120 | ||||||
Stockholders’
Equity
|
||||||||
Preferred
stock; $0.01 par value; 10,000,000 shares authorized; 5,500 issued and
outstanding as of March 31, 2010 and December 31, 2009; the aggregate
liquidation preference totals $55,000,000 as of March 31, 2010 and
December 31, 2009
|
55 | 55 | ||||||
Common
stock; $0.01 par value; 100,000,000 shares authorized; 37,652,035 shares
issued and 31,548,827 shares outstanding as of March 31, 2010, and
37,246,362 shares issued and 31,164,628 shares outstanding as of December
31, 2009
|
376,520 | 372,464 | ||||||
Additional
paid-in capital
|
271,702,340 | 271,715,956 | ||||||
Accumulated
other comprehensive income
|
371,335 | 344,372 | ||||||
Treasury
stock at cost; 6,103,208 shares as of March 31, 2010 and 6,081,734 shares
as of December 31, 2009
|
(10,466,261 | ) | (10,411,952 | ) | ||||
Accumulated
deficit
|
(158,964,536 | ) | (157,546,992 | ) | ||||
Total
stockholders’ equity
|
103,019,453 | 104,473,903 | ||||||
Total
liabilities and stockholders’ equity
|
$ | 130,891,340 | $ | 133,714,023 |
For
the Three Months Ended
March
31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Net
revenue:
|
||||||||
Premium
services
|
$ | 9,694,582 | $ | 9,507,441 | ||||
Marketing
services
|
3,805,775 | 3,993,022 | ||||||
Total
net revenue
|
13,500,357 | 13,500,463 | ||||||
Operating
expense:
|
||||||||
Cost
of services
|
6,369,662 | 8,245,710 | ||||||
Sales
and marketing
|
3,245,557 | 2,976,907 | ||||||
General
and administrative
|
4,436,275 | 4,541,678 | ||||||
Depreciation
and amortization
|
1,044,433 | 1,470,737 | ||||||
Impairment
charges
|
- | 24,137,069 | ||||||
Restructuring
and other charges
|
- | 1,984,529 | ||||||
Total
operating expense
|
15,095,927 | 43,356,630 | ||||||
Operating
loss
|
(1,595,570 | ) | (29,856,167 | ) | ||||
Net
interest income
|
176,595 | 230,137 | ||||||
Other
income
|
20,374 | 153,677 | ||||||
Loss
from continuing operations before income taxes
|
(1,398,601 | ) | (29,472,353 | ) | ||||
Provision
for income taxes
|
- | (16,515,077 | ) | |||||
Loss
from continuing operations
|
(1,398,601 | ) | (45,987,430 | ) | ||||
Discontinued
operations:
|
||||||||
(Loss)
income from discontinued operations
|
(18,943 | ) | 925 | |||||
Net
loss
|
(1,417,544 | ) | (45,986,505 | ) | ||||
Preferred
stock cash dividends
|
96,424 | 96,424 | ||||||
Net
loss attributable to common stockholders
|
$ | (1,513,968 | ) | $ | (46,082,929 | ) | ||
Basic
net (loss) income per share
|
||||||||
Loss
from continuing operations
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
(Loss)
income from discontinued operations
|
(0.00 | ) | 0.00 | |||||
Net
loss
|
(0.05 | ) | (1.51 | ) | ||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||
Net
loss attributable to common stockholders
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
Diluted
net (loss) income per share
|
||||||||
Loss
from continuing operations
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
(Loss)
income from discontinued operations
|
(0.00 | ) | 0.00 | |||||
Net
loss
|
(0.05 | ) | (1.51 | ) | ||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||
Net
loss attributable to common stockholders
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
Weighted
average basic shares outstanding
|
31,496,139 | 30,495,300 | ||||||
Weighted
average diluted shares outstanding
|
31,496,139 | 30,495,300 |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Cash
Flows from Operating Activities:
|
||||||||
Net
loss
|
$ | (1,417,544 | ) | $ | (45,986,505 | ) | ||
Loss
(income) from discontinued operations
|
18,943 | (925 | ) | |||||
Loss
from continuing operations
|
(1,398,601 | ) | (45,987,430 | ) | ||||
Adjustments
to reconcile loss from continuing operations to net cash provided by
operating activities:
|
||||||||
Stock-based
compensation expense
|
591,191 | 1,243,613 | ||||||
Provision
for doubtful accounts
|
(41,295 | ) | 72,858 | |||||
Depreciation
and amortization
|
1,044,433 | 1,470,737 | ||||||
Valuation
allowance on deferred taxes
|
- | 16,404,790 | ||||||
Impairment
charges
|
- | 24,137,069 | ||||||
Restructuring
and other charges
|
- | 428,868 | ||||||
Deferred
rent
|
343,913 | 352,320 | ||||||
Gain
on disposal of equipment
|
(20,600 | ) | - | |||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
1,395,804 | 3,935,057 | ||||||
Other
receivables
|
8,619 | 112,375 | ||||||
Prepaid
expenses and other current assets
|
(74,679 | ) | (26,789 | ) | ||||
Other
assets
|
- | (14,821 | ) | |||||
Accounts
payable
|
(54,174 | ) | 650,508 | |||||
Accrued
expenses
|
(2,856,383 | ) | 1,600,411 | |||||
Deferred
revenue
|
1,519,370 | 809,280 | ||||||
Other
current liabilities
|
(3,439 | ) | 165,628 | |||||
Other
liabilities
|
15,167 | (15,877 | ) | |||||
Net
cash provided by continuing operations
|
469,326 | 5,338,597 | ||||||
Net
cash used in discontinued operations
|
(18,630 | ) | (2,576 | ) | ||||
Net
cash provided by operating activities
|
450,696 | 5,336,021 | ||||||
Cash
Flows from Investing Activities:
|
||||||||
Purchase
of marketable securities
|
(35,800,533 | ) | (11,491,614 | ) | ||||
Sale
of marketable securities
|
4,431,838 | - | ||||||
Capital
expenditures
|
(423,367 | ) | (647,948 | ) | ||||
Proceeds
from the sale of fixed assets
|
22,500 | - | ||||||
Net
cash used in investing activities
|
(31,769,562 | ) | (12,139,562 | ) | ||||
Cash
Flows from Financing Activities:
|
||||||||
Cash
dividends paid on common stock
|
(837,327 | ) | (787,271 | ) | ||||
Cash
dividends paid on preferred stock
|
(96,424 | ) | (96,424 | ) | ||||
Purchase
of treasury stock
|
(54,309 | ) | (230,287 | ) | ||||
Net
cash used in financing activities
|
(988,060 | ) | (1,113,982 | ) | ||||
Net
decrease in cash and cash equivalents
|
(32,306,926 | ) | (7,917,523 | ) | ||||
Cash
and cash equivalents, beginning of period
|
60,542,494 | 72,441,294 | ||||||
Cash
and cash equivalents, end of period
|
$ | 28,235,568 | $ | 64,523,771 | ||||
Supplemental
disclosures of cash flow information:
|
||||||||
Cash
payments made for interest
|
$ | 1,478 | $ | 2,446 | ||||
Cash
payments made for income taxes
|
$ | - | $ | 146,658 |
1.
|
DESCRIPTION
OF THE BUSINESS AND BASIS OF
PRESENTATION
|
2.
|
CASH
AND CASH EQUIVALENTS, MARKETABLE SECURITIES AND RESTRICTED
CASH
|
March 31,
2010
|
December 31,
2009
|
|||||||
Cash
and cash equivalents
|
$ | 28,235,568 | $ | 60,542,494 | ||||
Current
and noncurrent marketable securities
|
51,723,745 | 20,328,087 | ||||||
Restricted
cash
|
1,702,079 | 1,702,079 | ||||||
Total
cash and cash equivalents, current and noncurrent marketable securities
and restricted cash
|
$ | 81,661,392 | $ | 82,572,660 |
3.
|
FAIR
VALUE MEASUREMENTS
|
•
|
Level
1: Inputs are quoted market prices in active markets for identical
assets or liabilities (these are observable market
inputs).
|
•
|
Level
2: Inputs are inputs other than quoted prices included within Level 1
that are observable for the asset or liability (includes quoted market
prices for similar assets or identical or similar assets in markets in
which there are few transactions, prices that are not current or vary
substantially).
|
•
|
Level
3: Inputs are unobservable inputs that reflect the entity’s own
assumptions in pricing the asset or liability (used when little or no
market data is available).
|
|
Total
|
Level 1
|
Level 2
|
Level 3
|
||||||||||||
Description:
|
||||||||||||||||
Cash
and cash equivalents (1)
|
$ | 28,235,568 | $ | 28,235,568 | $ | — | $ | — | ||||||||
Marketable
securities (2)
|
51,723,745 | 49,933,745 | — | 1,790,000 | ||||||||||||
Long
term investment (3)
|
555,000 | — | — | 555,000 | ||||||||||||
Total
at fair value
|
$ | 80,514,313 | $ | 78,169,313 | $ | — | $ | 2,345,000 |
(1)
|
Cash and cash
equivalents, totaling $28,235,568, consists primarily of money market
funds and checking accounts for which we determine fair value through
quoted market prices.
|
(2)
|
Marketable
securities consist of liquid short-term U.S. Treasuries, government
agencies, certificates of deposit (insured up to FDIC limits), investment
grade corporate and municipal bonds, and corporate floating rate notes for
which we determine fair value through quoted market
prices. Marketable securities also consist of two municipal ARS
issued by the District of Columbia having a fair value totaling $1,790,000
as of March 31, 2010. Historically, the fair value of ARS
investments approximated par value due to the frequent resets through the
auction process. Due to events in credit markets, the auction
events, which historically have provided liquidity for these securities,
have been unsuccessful. The result of a failed auction is that
these ARS holdings will continue to pay interest in accordance with their
terms at each respective auction date; however, liquidity of the
securities will be limited until there is a successful auction, the issuer
redeems the securities, the securities mature or until such time as other
markets for these ARS holdings develop. For each of our ARS, we
evaluate the risks related to the structure, collateral and liquidity of
the investment, and forecast the probability of issuer default, auction
failure and a successful auction at par, or a redemption at par, for each
future auction period. Temporary impairment charges are
recorded in accumulated other comprehensive (loss) income, whereas
other-than-temporary impairment charges are recorded in our consolidated
statement of operations. As of March 31, 2010, the Company
determined there was a decline in the fair value of its ARS investments of
$0.1 million, which was deemed temporary and was included within
accumulated other comprehensive (loss) income. The Company used
a discounted cash flow model to determine the estimated fair value of its
investment in ARS. The assumptions used in preparing the
discounted cash flow model include estimates for interest rate, timing and
amount of cash flows and expected holding period of
ARS.
|
(3)
|
Long
term investment consists of an investment in Debtfolio, Inc., doing
business as Geezeo, a web-based personal finance site. The
investment totaled $1.9 million for an 18.5% ownership
stake. Additionally, the Company incurred approximately $0.2
million of legal fees in connection with this investment. The
Company retained the option to purchase the company based on an equity
value of $12 million at any point prior to April 23, 2009, but did not
exercise the option. During the first quarter of 2009, the
carrying value of the Company’s investment was written down to fair value
based upon an estimate of the market value of the Company’s equity in
light of Debtfolio’s efforts to raise capital at the time from third
parties. The impairment charge approximated $1.5
million. The Company performed an additional impairment test as
of December 31, 2009 and no additional impairment in value was noted.
As
Debtfolio is a non public entity the valuation technique was based on the
recent equity offerings by the company. Due to the offerings the Company’s
ownership percentage was diluted to 13.825%. The total equity of Debtfolio
is valued at $4 million. There have been no subsequent triggering
events that would indicate any additional impairment, as Debtfolio has
recently raised additional capital based upon the same fair market
value.
|
Marketable
Securities
|
Long Term
Investment
|
|||||||
Balance
at January 1, 2010
|
$ | 1,770,000 | $ | 555,000 | ||||
Increase
in fair value of investment
|
20,000 | — | ||||||
Balance
at March 31, 2010
|
$ | 1,790,000 | $ | 555,000 |
4.
|
STOCK-BASED
COMPENSATION
|
Expected
option lives
|
3.5
years
|
|||
Expected
volatility
|
57.07 | % | ||
Risk-free
interest rate
|
1.83 | % | ||
Expected
dividend yield
|
3.83 | % |
Shares
Underlying
Awards
|
Weighted
Average
Exercise
Price
|
Aggregate
Intrinsic
Value
($000)
|
Weighted
Average
Remaining
Contractual
Life (In
Years)
|
|||||||||||||
Awards
outstanding at December 31, 2009
|
2,670,220 | $ | 2.21 | |||||||||||||
Restricted
stock units granted
|
350,401 | $ | 0.00 | |||||||||||||
Options
granted
|
269,500 | $ | 3.52 | |||||||||||||
Shares
issued under restricted stock units
|
(426,363 | ) | $ | 0.00 | ||||||||||||
Options
cancelled
|
(121,335 | ) | $ | 4.67 | ||||||||||||
Restricted
stock units forfeited
|
(4,668 | ) | $ | 0.00 | ||||||||||||
Awards
outstanding at March 31, 2010
|
2,737,755 | $ | 2.30 | $ | 6,989 | 3.23 | ||||||||||
Awards
vested and expected to vest at March 31, 2010
|
2,423,154 | $ | 2.50 | $ | 6,024 | 3.31 | ||||||||||
Options
exercisable at March 31, 2010
|
397,306 | $ | 9.11 | $ | 0 | 1.74 | ||||||||||
Restricted
stock eligible to be issued at March 31, 2010 pursuant to restricted stock
units
|
0 | $ | 0.00 | $ | 0 | N/A |
Unvested Awards
|
Number of
Shares
|
Weighted
Average Grant
Date Fair Value
|
||||||
Shares
underlying awards unvested at December 31, 2009
|
2,170,746 | $ | 3.37 | |||||
Shares
underlying options granted
|
269,500 | $ | 1.19 | |||||
Shares
underlying restricted stock units granted
|
350,401 | $ | 2.41 | |||||
Shares
underlying options vested
|
(12,500 | ) | $ | 3.79 | ||||
Shares
underlying restricted stock units vested
|
(426,363 | ) | $ | 4.99 | ||||
Shares
underlying options cancelled
|
(6,667 | ) | $ | 3.94 | ||||
Shares
underlying restricted stock units forfeited
|
(4,668 | ) | $ | 3.33 | ||||
Shares
underlying awards unvested at March 31, 2010
|
2,340,449 | $ | 2.75 |
5.
|
STOCKHOLDERS’
EQUITY
|
6.
|
LEGAL
PROCEEDINGS
|
7.
|
NET
(LOSS) INCOME PER SHARE OF COMMON
STOCK
|
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Basic
net (loss) income per share
|
||||||||
Numerator:
|
||||||||
Loss
from continuing operations
|
$ | (1,398,601 | ) | $ | (45,987,430 | ) | ||
(Loss)
income from discontinued operations
|
(18,943 | ) | 925 | |||||
Preferred
stock cash dividends
|
(96,424 | ) | (96,424 | ) | ||||
Numerator
for basic earnings per share -
|
||||||||
Net
loss available to common stockholders
|
$ | (1,513,968 | ) | $ | (46,082,929 | ) | ||
Denominator:
|
||||||||
Weighted
average basic shares outstanding
|
31,496,139 | 30,495,300 | ||||||
Basic
net (loss) income per share:
|
||||||||
Loss
from continuing operations
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
(Loss)
income from discontinued operations
|
(0.00 | ) | 0.00 | |||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||
Net
loss available to common stockholders
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
Diluted
net (loss) income per share
|
||||||||
Numerator:
|
||||||||
Loss
from continuing operations
|
$ | (1,398,601 | ) | $ | (45,987,430 | ) | ||
(Loss)
income from discontinued operations
|
(18,943 | ) | 925 | |||||
Preferred
stock cash dividends
|
(96,424 | ) | (96,424 | ) | ||||
Numerator
for diluted earnings per share -
|
||||||||
Net
loss available to common stockholders
|
$ | (1,513,968 | ) | $ | (46,082,929 | ) | ||
Denominator:
|
||||||||
Weighted
average diluted shares outstanding
|
31,496,139 | 30,495,300 | ||||||
Diluted
net (loss) income per share:
|
||||||||
Loss
from continuing operations
|
$ | (0.05 | ) | $ | (1.51 | ) | ||
(Loss)
income from discontinued operations
|
(0.00 | ) | 0.00 | |||||
Preferred
stock cash dividends
|
(0.00 | ) | (0.00 | ) | ||||
Net
loss available to common stockholders
|
$ | (0.05 | ) | $ | (1.51 | ) |
8.
|
INCOME
TAXES
|
9.
|
BUSINESS
CONCENTRATIONS AND CREDIT RISK
|
10.
|
LONG
TERM INVESTMENT
|
11.
|
ASSET
IMPAIRMENTS
|
|
·
|
The
total Company fair value was estimated using a combination of a discounted
cash flow model (present value of future cash flows) and the Company’s
business enterprise value based upon the fair value of its outstanding
common and preferred shares. The fair value of the Company’s
goodwill is the residual fair value after allocating the Company’s total
fair value to its other assets, net of liabilities. This
analysis resulted in an impairment of the Company’s goodwill approximating
$19.8 million. The review also revealed an additional
impairment to the Company’s intangible assets related to certain customer
relationships and noncompete agreements approximating $2.8
million.
|
|
·
|
The
carrying value of the Company’s long term investment was written down to
fair value based upon the most current estimate of the market value of the
Company’s equity stake in Debtfolio, Inc. The impairment
approximated $1.5 million. (See Note 10 (Long-Term
Investment)).
|
12.
|
RESTRUCTURING
AND OTHER CHARGES
|
Noncash
|
Balance
|
|||||||||||||||
Initial Charge
|
Payments
|
Deductions
|
March 31, 2009
|
|||||||||||||
Workforce
reduction
|
$ | 1,741,752 | $ | 220,771 | $ | 208,918 | $ | 1,312,063 | ||||||||
Asset
write-off
|
242,777 | - | 242,777 | - | ||||||||||||
$ | 1,984,529 | $ | 220,771 | $ | 451,695 | $ | 1,312,063 |
Balance
December 31, 2009
|
Payments
|
Balance
March 31, 2010
|
||||||||||
Workforce
reduction
|
$ | 480,056 | $ | 152,635 | $ | 327,421 | ||||||
Lease
Termination
|
750,000 | 73,882 | 676,118 | |||||||||
$ | 1,230,056 | $ | 226,517 | $ | 1,003,539 |
13.
|
COMPREHENSIVE
(LOSS) INCOME
|
For the Three Month Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Net
loss
|
$ | (1,417,544 | ) | $ | (45,986,505 | ) | ||
Recovery
of temporary impairment of ARS
|
20,000 | - | ||||||
Reclass
from accumulated other comprehensive income to earnings due to
sale
|
(226 | ) | - | |||||
Unrealized
gain on marketable securities
|
7,189 | 99,860 | ||||||
Total
comprehensive loss
|
$ | (1,390,581 | ) | $ | (45,886,645 | ) |
14.
|
DISCONTINUED
OPERATIONS
|
15.
|
OTHER
RECEIVABLES
|
March 31,
2010
|
December 31,
2009
|
|||||||
Note
receivable
|
$ | 2,010,765 | $ | 2,052,652 | ||||
Other
receivables
|
$ | 776,314 | $ | 722,246 | ||||
$ | 2,787,079 | $ | 2,774,898 |
16.
|
SUBSEQUENT
EVENTS
|
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations.
|
|
incentive
cash compensation,
|
|
·
|
useful
lives of intangible assets,
|
|
·
|
useful
lives of fixed assets,
|
|
·
|
the
carrying value of goodwill, intangible assets, marketable securities and
our long term investment,
|
|
·
|
allowances
for doubtful accounts,
|
|
·
|
accrued
expense estimates,
|
|
·
|
reserves
for estimated tax liabilities,
|
|
·
|
certain
estimates and assumptions used in the calculation of the fair value of
equity compensation issued to employees,
and
|
|
·
|
revenue
estimates based upon a completed contract basis related to our former
Promotions.com subsidiary, which was sold in December
2009.
|
For the Three Months Ended March 31,
|
||||||||||||||||||||
Revenue:
|
2010
|
Percent
of Total
Revenue
|
2009
|
Percent
of Total
Revenue
|
Percent
Change
|
|||||||||||||||
Premium
services
|
$ | 9,694,582 | 72 | % | $ | 9,507,441 | 70 | % | 2 | % | ||||||||||
Marketing
services
|
3,805,775 | 28 | % | 3,993,022 | 30 | % | -5 | % | ||||||||||||
Total
revenue
|
$ | 13,500,357 | 100 | % | $ | 13,500,463 | 100 | % | -0 | % |
For the Three Months Ended
March 31,
|
||||||||||||
2010
|
2009
|
Percent
Change
|
||||||||||
Marketing
services:
|
||||||||||||
Advertising
and sponsorships
|
$ | 3,805,775 | $ | 3,163,825 | 20 | % | ||||||
Interactive
marketing services (Promotions.com)
|
- | 829,197 | -100 | % | ||||||||
Total
|
$ | 3,805,775 | $ | 3,993,022 | -5 | % |
For the Three Months Ended March 31,
|
||||||||||||||||||||
|
2010
|
Percent
of Total
Revenue
|
2009
|
Percent
of Total
Revenue
|
Percent
Change
|
|||||||||||||||
Cost
of services
|
$ | 6,369,662 | 47 | % | $ | 8,245,710 | 61 | % | -23 | % | ||||||||||
Sales
and marketing
|
3,245,557 | 24 | % | 2,976,907 | 22 | % | 9 | % | ||||||||||||
General
and administrative
|
4,436,275 | 33 | % | 4,541,678 | 34 | % | -2 | % | ||||||||||||
Depreciation
and amortization
|
1,044,433 | 8 | % | 1,470,737 | 11 | % | -29 | % | ||||||||||||
Asset
impairments
|
- | N/A | 24,137,069 | 179 | % | -100 | % | |||||||||||||
Restructuring
and other charges
|
- | N/A | 1,984,529 | 15 | % | -100 | % | |||||||||||||
Total
operating expense
|
$ | 15,095,927 | $ | 43,356,630 | -65 | % |
For the Three Months Ended
March 31,
|
Percent
|
|||||||||||
2010
|
2009
|
Change
|
||||||||||
Net
interest income
|
$ | 176,595 | $ | 230,137 | -23 | % |
For the Three Months Ended
March 31,
|
||||||||||||
2010
|
2009
|
Change
|
||||||||||
Provision
for income taxes
|
$ | - | 16,515,077 | N/A |
March 31,
2010
|
December 31,
2009
|
|||||||
Cash
and cash equivalents
|
$ | 28,235,568 | $ | 60,542,494 | ||||
Current
and noncurrent marketable securities
|
51,723,745 | 20,328,087 | ||||||
Restricted
cash
|
1,702,079 | 1,702,079 | ||||||
Total
cash and cash equivalents, current and noncurrent marketable securities
and restricted cash
|
$ | 81,661,392 | $ | 82,572,660 |
|
·
|
A
decrease in accrued expenses in the three months ended March 31, 2010,
primarily related to our incentive compensation and legal accruals, as
compared to an increase in accrued expenses in the three months ended
March 31, 2009 primarily related to restructuring and incentive
compensation accruals;
|
|
·
|
a slowdown in the decrease in
receivables in the three months ended March 31, 2010, as compared to the
three months ended March 31, 2009, the result of a large collection effort
during the period (collection efforts have remained strong over the past
year); and
|
|
·
|
a decrease in accounts payable in
the three months ended March 31, 2010, as compared an increase during the
three months ended March 31, 2009, primarily related to the accelerated
timing of payments in December
2008.
|
|
·
|
A
decrease in the loss from continuing operations, which in turn was
partially offset by decreased noncash expenses;
and
|
|
·
|
increased
growth of deferred revenue in the three months ended March 31, 2010, as
compared to the three months ended March 31, 2009, primarily related to
higher levels of subscription cash
received.
|
Item
3.
|
Quantitative
and Qualitative Disclosures About Market
Risk.
|
Item
4.
|
Controls
and Procedures.
|
|
·
|
Inadequate
and ineffective controls over recognition of revenue at our former
Promotions.com subsidiary (“Promotions.com”), which was sold in December
2009; and
|
|
·
|
Inadequate
and ineffective controls over complex and non-recurring
transactions.
|
|
·
|
In
December 2009, disposed of our Promotions.com subsidiary and subsequently
ceased entering into any revenue transactions substantially similar in
nature to the revenue transactions accounted for under our former
Promotions.com subsidiary;
|
|
·
|
Hired
a new controller in January of 2010;
and
|
|
·
|
Continued
to work with an internal control and compliance consultant to assist us
with improving the design, functioning and testing of our internal control
over financial reporting.
|
|
·
|
Continue
to assess training requirements and adequacy and expertise of the finance
and accounting staff; and
|
|
·
|
Further
enhance procedures to help ensure that the proper accounting for all
complex and non-routine transactions is researched, detailed in memoranda
and reviewed by senior management prior to
recording.
|
Item
1.
|
Legal
Proceedings.
|
Item
1A.
|
Risk
Factors.
|
|
·
|
Inadequate
and ineffective controls over recognition of revenue at our former
Promotions.com subsidiary (“Promotions.com”), which was sold in December
2009; and
|
|
|
|
·
|
Inadequate
and ineffective controls over complex and non-recurring
transactions.
|
Item
2.
|
Unregistered
Sales of Equity Securities and Use of
Proceeds.
|
Period
|
(a) Total
Number
of Shares
(or Units)
Purchased
|
(b)
Average
Price
Paid per
Share (or
Unit)
|
(c) Total Number
of Shares (or
Units) Purchased
as Part of Publicly
Announced Plans
or Programs
|
(d) Maximum Number
(or Approximate Dollar
Value) of Shares (or
Units) that May Yet Be
Purchased Under the
Plans or Programs *
|
||||||||||||
January
1 – 31, 2010
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
February
1 – 28, 2010
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
March
1 – 31, 2010
|
- | $ | - | - | $ | 2,678,878 | ||||||||||
Total
|
- | $ | - | - | $ | 2,678,878 |
*
|
In
December 2000, the Company’s Board of Directors authorized the repurchase
of up to $10 million worth of the Company’s Common Stock, from time to
time, in private purchases or in the open market. In February 2004, the
Company’s Board approved the resumption of this program under new price
and volume parameters, leaving unchanged the maximum amount available for
repurchase under the program. The program does not have a specified
expiration date and is subject to certain
limitations.
|
Item
3.
|
Defaults
Upon Senior Securities.
|
Item
4.
|
Submission
of Matters to a Vote of Security
Holders.
|
Item
5.
|
Other
Information.
|
Item
6.
|
Exhibits.
|
Exhibit
Number
|
Description
|
|
*3.1
|
Amended
and Restated Certificate of Incorporation of the Company, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*3.2
|
Amended
and Restated Bylaws of the Company, incorporated by reference to the
Exhibits to the Company’s Annual Report on Form 10-K filed March 30,
2000.
|
|
*4.1
|
Amended
and Restated Registration Rights Agreement dated December 21, 1998, by and
among the Company and the stockholders named therein, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*4.2
|
Certificate
of Designation of the Company’s Series A Junior Participating Preferred
Stock, incorporated by reference to the Exhibits to the Company’s
Registration Statement on Form S-1 filed February 23,
1999.
|
|
*4.3
|
Certificate
of Designation of the Company’s Series B Preferred Stock, as filed with
the Secretary of State of the State of Delaware on November 15, 2007,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.4
|
Option
to Purchase Common Stock dated November 1, 2007, incorporated by reference
to the Company’s Current Report on Form 8-K filed November 6,
2007.
|
|
*4.5
|
Investor
Rights Agreement dated November 15, 2007 by and among the Company, TCV VI,
L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.6
|
Warrant
dated November 15, 2007 issued by the Company to TCV VI, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.7
|
Warrant
dated November 15, 2007 issued by the Company to TCV Member Fund, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.8
|
Specimen
certificate for the Company’s shares of Common Stock, incorporated by
reference to the Exhibits to Amendment 3 to the Company’s Registration
Statement on Form S-1 filed April 19, 1999.
|
|
+10.1
|
Amendment
to Employment Agreement dated January 5, 2010 by and between James J.
Cramer and the Company.
|
|
31.1
|
Rule
13a-14(a) Certification of CEO.
|
|
31.2
|
Rule
13a-14(a) Certification of CAO.
|
|
32.1
|
Section
1350 Certification of CEO.
|
|
32.2
|
Section
1350 Certification of
CAO.
|
*
|
Incorporated
by reference
|
+
|
Indicates
management contract or compensatory plan or
arrangement
|
THESTREET.COM,
INC.
|
||||
Date:
May
7, 2010
|
By:
|
/s/ Daryl Otte
|
||
Name:
Daryl Otte
|
||||
Title:
Chief Executive Officer (principal executive officer)
|
||||
Date:
May
7, 2010
|
By:
|
/s/ Richard Broitman
|
||
Name:
Richard Broitman
|
||||
Title:
Chief Accounting Officer (principal financial
officer)
|
Exhibit
Number
|
Description
|
|
*3.1
|
Amended
and Restated Certificate of Incorporation of the Company, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*3.2
|
Amended
and Restated Bylaws of the Company, incorporated by reference to the
Exhibits to the Company’s Annual Report on Form 10-K filed March 30,
2000.
|
|
*4.1
|
Amended
and Restated Registration Rights Agreement dated December 21, 1998, by and
among the Company and the stockholders named therein, incorporated by
reference to the Exhibits to the Company’s Registration Statement on Form
S-1 filed February 23, 1999.
|
|
*4.2
|
Certificate
of Designation of the Company’s Series A Junior Participating Preferred
Stock, incorporated by reference to the Exhibits to the Company’s
Registration Statement on Form S-1 filed February 23,
1999.
|
|
*4.3
|
Certificate
of Designation of the Company’s Series B Preferred Stock, as filed with
the Secretary of State of the State of Delaware on November 15, 2007,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.4
|
Option
to Purchase Common Stock dated November 1, 2007, incorporated by reference
to the Company’s Current Report on Form 8-K filed November 6,
2007.
|
|
*4.5
|
Investor
Rights Agreement dated November 15, 2007 by and among the Company, TCV VI,
L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed November 20,
2007.
|
|
*4.6
|
Warrant
dated November 15, 2007 issued by the Company to TCV VI, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.7
|
Warrant
dated November 15, 2007 issued by the Company to TCV Member Fund, L.P.,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed November 20, 2007.
|
|
*4.8
|
Specimen
certificate for the Company’s shares of Common Stock, incorporated by
reference to the Exhibits to Amendment 3 to the Company’s Registration
Statement on Form S-1 filed April 19, 1999.
|
|
+10.1
|
Amendment
to Employment Agreement dated January 5, 2010 by and between James J.
Cramer and the Company.
|
|
31.1
|
Rule
13a-14(a) Certification of CEO.
|
|
31.2
|
Rule
13a-14(a) Certification of CAO.
|
|
32.1
|
Section
1350 Certification of CEO.
|
|
32.2
|
Section
1350 Certification of
CAO.
|
*
|
Incorporated
by reference
|
+
|
Indicates
management contract or compensatory plan or
arrangement
|