Delaware
|
06-1515824
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
|
14
Wall Street, 15th Floor
New York, New York
|
10005
(Zip
code)
|
|
(Address
of principal executive offices)
|
Name
of Each Exchange on Which
|
||
Title
of Each Class
|
the
Securities are Registered
|
|
Common
Stock, par value $0.01 per share
|
Nasdaq
Global Market
|
Large
accelerated filer o
|
Accelerated
filer x
|
Non-accelerated
filer o
|
Smaller
reporting company o
|
Number
of Shares Outstanding
|
||
Title
of Each Class
|
at
March 10, 2010
|
|
Common
Stock, $0.01 par value
|
31,548,827
|
Page
|
||
PART
I
|
||
Item
1.
|
Business
|
1
|
Item
1A.
|
Risk
Factors
|
7
|
Item
1B.
|
Unresolved
Staff Comments
|
16
|
Item
2.
|
Properties
|
16
|
Item
3.
|
Legal
Proceedings
|
16
|
Item
4.
|
[Reserved]
|
|
PART
II
|
||
Item
5.
|
Market
For Registrant’s Common Equity, Related Stockholder Matters and Issuer
Purchases of Equity Securities
|
18
|
Item
6.
|
Selected
Financial Data
|
20
|
Item
7.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
22
|
Item
7A.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
41
|
Item
8.
|
Financial
Statements and Supplementary Data
|
41
|
Item
9.
|
Changes
in and Disagreements With Accountants on Accounting and Financial
Disclosure
|
41
|
Item
9A.
|
Controls
and Procedures
|
42
|
Item
9B.
|
Other
Information
|
44
|
PART
III
|
||
Item
10.
|
Directors,
Executive Officers and Corporate Governance
|
44
|
Item
11.
|
Executive
Compensation
|
45
|
Item
12.
|
Security
Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
|
45
|
Item
13.
|
Certain
Relationships and Related Transactions, and Director
Independence
|
46
|
Item
14.
|
Principal
Accounting Fees and Services
|
46
|
PART
IV
|
||
Item
15.
|
Exhibits,
Financial Statement Schedules
|
47
|
SIGNATURES
|
51
|
|
·
|
banner,
tile, contextual, performance-based and interactive advertisement and
sponsorship placements in our advertising-supported web sites, as well as
on select paid subscription sites;
|
|
·
|
advertisement
placements in our free email newsletters and stand-alone emails sent on
behalf of our advertisers to our registered users;
and
|
|
·
|
advertisements
in TheStreet TV,
TheStreet Mobile, RSS feeds, blogs and in our
podcasts.
|
|
·
|
online
services or web sites focused on business, personal finance, or investing,
such as The Wall Street
Journal Online, CNN Money,
MarketWatch.com, Bloomberg.com and CNBC.com, as well as
financial portals such as Yahoo! Finance, AOL Money & Finance and MSN
Money;
|
|
·
|
publishers
and distributors of traditional media focused on business, personal
finance or investing, including print and radio, such as The Wall Street Journal
and financial talk radio programs, and business television networks such
as CNBC and the Fox Business
Channel;
|
|
·
|
investment
newsletter publishers; and
|
|
·
|
established
ratings services, such as Standard & Poor’s, Morningstar, Lipper and
A.M. Best, with respect to our Ratings products, and rate database
providers such as Informa, with respect to our RateWatch
products.
|
|
·
|
the
level of interest and investment in the stock market by both individual
and institutional investors;
|
|
·
|
the
willingness of investors to pay for content distributed over the Internet,
where a large quantity of content is available for
free;
|
|
·
|
demand
for advertising on our web sites, which is affected by advertising budget
cycles of our customers, general economic conditions, demand for
advertising on the Internet generally and actions by our
competitors;
|
|
·
|
subscription
price reductions attributable to decreased demand or increased
competition;
|
|
·
|
new
products or services introduced by our
competitors;
|
|
·
|
content
distribution fees or other costs;
|
|
·
|
costs
or lost revenue associated with system downtime affecting the Internet
generally or our web sites in particular;
and
|
|
·
|
general
economic and market conditions.
|
|
·
|
online
services or web sites focused on business, personal finance, or investing,
such as The Wall Street
Journal Online, CNN Money,
MarketWatch.com, Bloomberg.com and CNBC.com, as well as
financial portals such as Yahoo! Finance, AOL Money & Finance and MSN
Money;
|
|
·
|
publishers
and distributors of traditional media focused on business, personal
finance or investing, including print and radio, such as The Wall Street Journal
and financial talk radio programs, and business television networks such
as CNBC and the Fox Business
Channel;
|
|
·
|
investment
newsletter publishers; and
|
|
·
|
established
ratings services, such as Standard & Poor’s, Morningstar, Lipper and
A.M. Best, with respect to our Ratings products, and rate database
providers such as Informa, with respect to our RateWatch
products.
|
Reserved.
|
Market
for Registrant’s Common Equity, Related Stockholder Matters and Issuer
Purchases of Equity Securities.
|
Low
|
High
|
|||||||
2008
|
||||||||
First
quarter
|
$ | 7.80 | $ | 15.58 | ||||
Second
quarter
|
$ | 6.51 | $ | 9.48 | ||||
Third
quarter
|
$ | 5.64 | $ | 7.32 | ||||
Fourth
quarter
|
$ | 2.70 | $ | 5.69 | ||||
2009
|
||||||||
First
quarter
|
$ | 1.70 | $ | 3.49 | ||||
Second
quarter
|
$ | 1.85 | $ | 2.47 | ||||
Third
quarter
|
$ | 1.94 | $ | 2.90 | ||||
Fourth
quarter
|
$ | 2.12 | $ | 3.08 |
December 31,
|
||||||||||||||||||||||||
2004
|
2005
|
2006
|
2007
|
2008
|
2009
|
|||||||||||||||||||
TheStreet.com
|
100.00 | 176.72 | 220.40 | 396.92 | 73.75 | 63.83 | ||||||||||||||||||
NASDAQ
Composite
|
100.00 | 101.33 | 114.01 | 123.71 | 73.11 | 105.61 | ||||||||||||||||||
RDG
Internet Composite
|
100.00 | 105.16 | 96.24 | 129.33 | 60.58 | 119.79 |
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*
|
||||||||||||
October
1 - 31, 2009
|
— | $ | — | — | $ | 2,678,878 | ||||||||||
November
1 - 30, 2009
|
— | $ | — | — | $ | 2,678,878 | ||||||||||
December
1 - 31, 2009
|
— | $ | — | — | $ | 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. See “Risk Factors — Control by principal
stockholders, officers and directors could adversely affect our
stockholders, and the terms of our Series B preferred stock include
significant control rights.”
|
Item
6.
|
Selected
Financial Data.
|
For the Year Ended December 31,
|
||||||||||||||||||||
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||
(In thousands, except per share data)
|
||||||||||||||||||||
Statement
of Operations Data:
|
||||||||||||||||||||
Revenue:
|
||||||||||||||||||||
Premium
services
|
$ | 37,989 | $ | 41,186 | $ | 38,421 | $ | 35,442 | $ | 24,221 | ||||||||||
Marketing
services
|
22,251 | 29,662 | 26,160 | 15,447 | 9,523 | |||||||||||||||
Total
revenue
|
60,240 | 70,848 | 64,581 | 50,889 | 33,744 | |||||||||||||||
Operating
expense:
|
||||||||||||||||||||
Cost
of services
|
29,100 | 31,985 | 25,491 | 18,450 | 12,727 | |||||||||||||||
Sales
and marketing
|
12,078 | 14,263 | 12,209 | 9,616 | 7,264 | |||||||||||||||
General
and administrative
|
18,916 | 17,521 | 12,215 | 10,674 | 8,177 | |||||||||||||||
Goodwill
and intangible asset impairment
|
24,137 | 2,326 | — | — | — | |||||||||||||||
Depreciation
and amortization
|
4,985 | 5,894 | 2,528 | 1,089 | 674 | |||||||||||||||
Restructuring
and other charges
|
3,461 | — | — | — | — | |||||||||||||||
Loss
on disposition of assets
|
530 | — | — | — | — | |||||||||||||||
Total
operating expense
|
93,207 | 71,989 | 52,443 | 39,829 | 28,842 | |||||||||||||||
Operating
(loss) income
|
(32,967 | ) | (1,141 | ) | 12,138 | 11,060 | 4,902 | |||||||||||||
Net
interest income
|
950 | 1,574 | 2,476 | 2,037 | 853 | |||||||||||||||
Gain
on sales of marketable securities
|
295 | 121 | — | — | — | |||||||||||||||
Other
income
|
154 | — | — | — | — | |||||||||||||||
(Loss)
income from continuing operations before income taxes
|
(31,568 | ) | 554 | 14,614 | 13,097 | 5,755 | ||||||||||||||
(Provision)
benefit for income taxes
|
(15,846 | ) | (2 | ) | 15,694 | (261 | ) | (5 | ) | |||||||||||
(Loss)
income from continuing operations
|
(47,414 | ) | 552 | 30,308 | 12,836 | 5,750 | ||||||||||||||
Discontinued
operations: (*)
|
||||||||||||||||||||
Loss
from discontinued operations
|
— | — | — | — | (3,075 | ) | ||||||||||||||
(Loss)
income on disposal of discontinued operations
|
(15 | ) | (8 | ) | (13 | ) | 32 | (2,429 | ) | |||||||||||
(Loss)
income from discontinued operations
|
(15 | ) | (8 | ) | (13 | ) | 32 | (5,504 | ) | |||||||||||
Net
(loss) income
|
(47,429 | ) | 544 | 30,295 | 12,868 | 246 | ||||||||||||||
Preferred
stock deemed dividends
|
— | — | 1,803 | — | — | |||||||||||||||
Preferred
stock cash dividends
|
386 | 386 | 96 | — | — | |||||||||||||||
Preferred
stock dividends
|
386 | 386 | 1,899 | — | — | |||||||||||||||
Net
(loss) income attributable to common stockholders
|
$ | (47,815 | ) | $ | 158 | $ | 28,396 | $ | 12,868 | $ | 246 | |||||||||
Cash
dividends paid on common shares
|
$ | 3,201 | $ | 3,093 | $ | 2,932 | $ | 2,737 | $ | — | ||||||||||
Basic
net (loss) income per share:
|
||||||||||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.05 | $ | 0.48 | $ | 0.23 | |||||||||
Loss
from discontinued operations
|
— | — | — | — | (0.12 | ) | ||||||||||||||
(Loss)
income on disposal of discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | 0.00 | (0.10 | ) | |||||||||||
(Loss)
income from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | 0.00 | (0.22 | ) | |||||||||||
Net
(loss) income
|
(1.55 | ) | 0.02 | 1.05 | 0.48 | 0.01 | ||||||||||||||
Preferred
stock dividends
|
(0.01 | ) | (0.01 | ) | (0.07 | ) | — | — | ||||||||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.98 | $ | 0.48 | $ | 0.01 | |||||||||
Diluted
net (loss) income per share:
|
||||||||||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.03 | $ | 0.47 | $ | 0.22 | |||||||||
Loss
from discontinued operations
|
— | — | — | — | (0.12 | ) | ||||||||||||||
(Loss)
income from disposal of discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | 0.00 | (0.09 | ) | |||||||||||
(Loss)
income from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | 0.00 | (0.21 | ) | |||||||||||
Net
(loss) income
|
(1.55 | ) | 0.02 | 1.03 | 0.47 | 0.01 | ||||||||||||||
Preferred
stock dividends
|
(0.01 | ) | (0.01 | ) | (0.06 | ) | — | — | ||||||||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.97 | $ | 0.47 | $ | 0.01 | |||||||||
Weighted
average basic shares outstanding
|
30,586 | 30,427 | 28,830 | 27,014 | 24,953 | |||||||||||||||
Weighted
average diluted shares outstanding
|
30,586 | 30,835 | 29,388 | 27,546 | 26,165 |
December 31,
|
||||||||||||||||||||
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||
(In thousands)
|
||||||||||||||||||||
Balance
Sheet Data:
|
||||||||||||||||||||
Cash,
cash equivalents, restricted cash, short and long term marketable
securities
|
$ | 82,573 | $ | 76,379 | $ | 79,748 | $ | 46,555 | $ | 34,014 | ||||||||||
Working
capital
|
46,063 | 69,211 | 72,437 | 33,797 | 22,059 | |||||||||||||||
Total
assets
|
133,714 | 171,687 | 176,515 | 64,570 | 43,105 | |||||||||||||||
Long-term
obligations, less current maturities
|
1,231 | 80 | 90 | — | 22 | |||||||||||||||
Total
stockholders’ equity
|
104,762 | 151,615 | 151,706 | 44,191 | 27,441 |
(*)
|
In
June 2005, the Company committed to a plan to discontinue the operations
of its wholly owned subsidiary, Independent Research Group LLC, which
operated the Company’s securities research and brokerage
segment. Accordingly, the operating results relating to this
segment have been segregated from continuing operations and reported as
discontinued operations on a separate line item on the consolidated
statements of operations.
|
Item
7.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations.
|
|
·
|
banner,
tile, contextual, performance-based and interactive advertisement and
sponsorship placements in our advertising-supported web sites, as well as
on select paid subscription sites;
|
|
·
|
advertisement
placements in our free email newsletters and stand-alone emails sent on
behalf of our advertisers to our registered users;
and
|
|
·
|
advertisements
in TheStreet TV,
TheStreet Mobile, RSS feeds, blogs and in our
podcasts.
|
|
·
|
The
total Company fair value was estimated using a combination of a discounted
cash flow model (present value of future cash flows) and our business
enterprise value based upon the fair value of our outstanding common and
preferred shares. The fair value of our 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 our goodwill approximating $19.8 million. The
review also revealed an additional impairment to our intangible assets
related to certain customer relationships and noncompete agreements
approximating $2.8 million. See Note 3 to Consolidated
Financial Statements (Acquisitions and Divestitures) for further
information related to the individual impairments
recorded.
|
Expected
option lives
|
3.5
years
|
|||
Expected
volatility
|
48.20%
|
|||
Risk-free
interest rate
|
2.32%
|
|||
Expected
dividends
|
0.96%
|
For the Year Ended December 31,
|
Percent
|
|||||||||||||||||||
2009
|
(*)
|
2008
|
(*)
|
Change
|
||||||||||||||||
Revenue:
|
||||||||||||||||||||
Premium
services
|
$ | 37,988,579 | 63 | % | $ | 41,185,988 | 58 | % | -8 | % | ||||||||||
Marketing
services
|
22,251,432 | 37 | % | 29,662,045 | 42 | % | -25 | % | ||||||||||||
Total
revenue
|
$ | 60,240,011 | 100 | % | $ | 70,848,033 | 100 | % | -15 | % |
For the Year Ended
|
||||||||||||
December 31,
|
Percent
|
|||||||||||
2009
|
2008
|
Change
|
||||||||||
Marketing
services:
|
||||||||||||
Advertising
|
$ | 17,637,343 | $ | 23,126,532 | -24 | % | ||||||
Interactive
marketing services (Promotions.com)
|
4,614,089 | 6,535,513 | -29 | % | ||||||||
Total
|
$ | 22,251,432 | $ | 29,662,045 | -25 | % |
For the Year Ended December 31,
|
Percent
|
|||||||||||||||||||
2009
|
(*)
|
2008
|
(*)
|
Change
|
||||||||||||||||
Operating
expense:
|
||||||||||||||||||||
Cost
of services
|
$ | 29,100,204 | 48.3 | % | $ | 31,984,778 | 45.1 | % | -9 | % | ||||||||||
Sales
and marketing
|
12,077,546 | 20.0 | % | 14,263,199 | 20.1 | % | -15 | % | ||||||||||||
General
and administrative
|
18,916,456 | 31.4 | % | 17,521,238 | 24.7 | % | 8 | % | ||||||||||||
Goodwill
and intangible asset impairment
|
24,137,069 | 40.1 | % | 2,325,481 | 3.3 | % | 938 | % | ||||||||||||
Depreciation
and amortization
|
4,985,297 | 8.3 | % | 5,894,186 | 8.3 | % | -15 | % | ||||||||||||
Restructuring
and other charges
|
3,460,914 | 5.7 | % | - | N/A | N/A | ||||||||||||||
Loss on disposition of assets | 529,708 | 0.9 | % | - | N/A | N/A | ||||||||||||||
Total
operating expense
|
$ | 93,207,194 | $ | 71,988,882 | 29 | % |
|
·
|
The
total Company fair value was estimated using a combination of a discounted
cash flow model (present value of future cash flows) and our business
enterprise value based upon the fair value of our outstanding common and
preferred shares. The fair value of our 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 our goodwill approximating $19.8 million. The
review also revealed an additional impairment to our intangible assets
related to certain customer relationships and noncompete agreements
approximating $2.8 million.
|
|
·
|
The
carrying value of our long-term investment was written down to fair value
based upon the most current estimate of the market value of our equity
stake in Debtfolio, Inc., which was determined based on current equity
raising efforts by Debtfolio, Inc. with third-parties. The
impairment approximated $1.5
million.
|
For the Year Ended
December 31,
|
Percent
|
|||||||||||
2009
|
2008
|
Change
|
||||||||||
Net
interest income
|
$ | 949,727 | $ | 1,573,752 | -40 | % |
For the Year Ended
December 31,
|
Percent
|
|||||||||||
2009
|
2008
|
Change
|
||||||||||
Gain
on sales of marketable securities
|
$ | 295,430 | $ | 120,937 | 144 | % |
For the Year Ended
December 31,
|
||||||||
2009
|
2008
|
|||||||
Provision
for income taxes
|
$ | 15,845,964 | $ | 2,040 |
For the Year Ended December 31,
|
Percent
|
|||||||||||||||||||
2008
|
(*)
|
2007
|
(*)
|
Change
|
||||||||||||||||
Revenue: | ||||||||||||||||||||
Premium
services
|
$ | 41,185,988 | 58 | % | $ | 38,421,393 | 59 | % | 7 | % | ||||||||||
Marketing
services
|
29,662,045 | 42 | % | 26,160,144 | 41 | % | 13 | % | ||||||||||||
Total
revenue
|
$ | 70,848,033 | 100 | % | $ | 64,581,537 | 100 | % | 10 | % |
For the Year Ended
|
||||||||||||
December 31,
|
Percent
|
|||||||||||
2008
|
2007
|
Change
|
||||||||||
Advertising
|
$ | 23,126,532 | $ | 21,985,441 | 5 | % | ||||||
Interactive
marketing services (Promotions.com)
|
6,535,513 | 4,174,703 | 57 | % | ||||||||
Total
|
$ | 29,662,045 | $ | 26,160,144 | 13 | % |
For the Year Ended December 31,
|
Percent
|
|||||||||||||||||||
2008
|
(*)
|
2007
|
(*)
|
Change
|
||||||||||||||||
Operating
expense:
|
||||||||||||||||||||
Cost
of services
|
$ | 31,984,778 | 45.1 | % | $ | 25,490,864 | 39.5 | % | 25 | % | ||||||||||
Sales
and marketing
|
14,263,199 | 20.1 | % | 12,208,648 | 18.9 | % | 17 | % | ||||||||||||
General
and administrative
|
17,521,238 | 24.7 | % | 12,215,797 | 18.9 | % | 43 | % | ||||||||||||
Goodwill
and intangible asset impairment
|
2,325,481 | 3.3 | % | — | N/A | N/A | ||||||||||||||
Depreciation
and amortization
|
5,894,186 | 8.3 | % | 2,528,042 | 3.9 | % | 133 | % | ||||||||||||
Total
operating expense
|
$ | 71,988,882 | $ | 52,443,351 | 37 | % |
For
the Year Ended
|
||||||||||||
December
31,
|
Percent
|
|||||||||||
2008
|
2007
|
Change
|
||||||||||
Net
interest income
|
$ | 1,573,752 | $ | 2,476,266 | -36 | % |
For
the Year Ended
|
||||||||||||
December
31,
|
Percent
|
|||||||||||
2008
|
2007
|
Change
|
||||||||||
Gain
on sales of marketable securities
|
$ | 120,937 | $ | - | N/A |
December 31,
2009
|
December 31,
2008
|
|||||||
Cash
and cash equivalents
|
$ | 60,542,494 | $ | 72,441,294 | ||||
Current
and noncurrent marketable securities
|
20,328,087 | 1,658,178 | ||||||
Current
and noncurrent restricted cash
|
1,702,079 | 2,279,030 | ||||||
Total
cash and cash equivalents, current and noncurrent marketable securities
and current and noncurrent restricted cash
|
$ | 82,572,660 | $ | 76,378,502 |
|
·
|
an increase in accrued expenses
in the year ended December 31, 2009, primarily related to our incentive
compensation and restructuring accruals, as compared to a decrease in
accrued expenses in the year ended December 31, 2008 primarily related to
incentive compensation;
|
|
·
|
an increase in accounts payable
in the year ended December 31, 2009, as compared to the year ended
December 31, 2008, primarily related to the timing of invoice
payments;
|
|
·
|
a decrease in receivables in the
year ended December 31, 2009, as compared to the year ended December 31,
2008, primarily related to improved collection efforts and decreased
revenue; and
|
|
·
|
an increase in deferred
revenue in the year
ended December 31, 2009, as compared to a decrease during the year ended
December 31, 2008.
|
Payments
Due by Year
|
||||||||||||||||||||||||||||
After
|
||||||||||||||||||||||||||||
Contractual
obligations:
|
Total
|
2010
|
2011
|
2012
|
2013
|
2014
|
2014
|
|||||||||||||||||||||
Operating
leases
|
$ | 20,729,230 | $ | 1,612,187 | $ | 2,197,482 | $ | 2,092,126 | $ | 2,084,866 | $ | 1,878,937 | $ | 10,863,632 | ||||||||||||||
Employment
agreements
|
1,763,833 | 1,763,833 | — | — | — | — | — | |||||||||||||||||||||
Outside
contributors
|
507,000 | 457,000 | 50,000 | — | — | — | — | |||||||||||||||||||||
Total
contractual cash obligations
|
$ | 23,000,063 | $ | 3,833,020 | $ | 2,247,482 | $ | 2,092,126 | $ | 2,084,866 | $ | 1,878,937 | $ | 10,863,632 |
(A)
|
Evaluation
of Disclosure Controls and
Procedures
|
(B)
|
Management’s
Annual Report on Internal Control Over Financial
Reporting
|
(C)
|
Remediation
Plan for Material Weaknesses in Internal Control Over Financial
Reporting
|
(D)
|
Changes
in Internal Controls Over Financial Reporting in Our Last Fiscal
Quarter
|
Number of securities
to be
issued upon exercise
of outstanding
options
|
Weighted-average
exercise price of
outstanding options
|
Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities
reflected in column (a))
|
||||||||
(a)
|
(b)
|
(c)
|
||||||||
Equity
compensation plans approved by security holders
|
2,670,220
|
$
|
2.21
|
964,614
|
* |
*
|
Aggregate
number of shares available for grant under the 2007 Plan, which grants may
be in the form of incentive stock options, nonqualified stock options,
stock appreciation rights (SARs), restricted stock, restricted stock units
(RSUs) or other stock-based awards in the discretion of the Board of
Directors, with respect to non-employee director grants, or the
Compensation Committee, with respect to all other grants. The
2007 Plan also authorizes cash performance
awards.
|
(a)
|
1.
|
Consolidated
Financial Statements:
|
See
TheStreet.com, Inc. Index to Consolidated Financial Statements on page
F-1.
|
||
2.
|
Consolidated
Financial Statement Schedules:
|
|
See
TheStreet.com, Inc. Index to Consolidated Financial Statements on page
F-1.
|
||
3.
|
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
|
Amended
and Restated 1998 Stock Incentive Plan, dated May 29, 2002, incorporated
by reference to the Exhibits to the Company’s Quarterly Report on Form
10-Q filed August 14,
2002.
|
+*10.2
|
Form
of Stock Option Grant Agreement under the 1998 Stock Incentive Plan,
incorporated by reference to the Exhibits to the Company’s Annual Report
on Form 10-K filed March 16, 2005.
|
|
+*10.3
|
Form
of Restricted Stock Unit Grant Agreement under the 1998 Stock Incentive
Plan, incorporated by reference to the Exhibits to the Company’s Annual
Report on Form 10-K filed March 16, 2006.
|
|
+*10.4
|
2007
Performance Incentive Plan, incorporated by reference to Appendix A to the
Company’s 2007 Definitive Proxy Statement on Schedule 14A filed April 23,
2007.
|
|
+*10.5
|
Form
of Stock Option Grant Agreement under the Company’s 2007 Performance
Incentive Plan, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed August 9, 2007.
|
|
+*10.6
|
Form
of Restricted Stock Unit Grant Agreement under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q filed August 9,
2007.
|
|
+*10.7
|
Form
of Cash Performance Award Agreement under the Company’s 2007 Performance
Incentive Plan, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed August 9, 2007.
|
|
+*10.8
|
Employment
Agreement dated April 9, 2008 between James Cramer and the Company,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed April 9, 2008.
|
|
+*10.9
|
Amendment
to Employment Agreement dated July 30, 2008 between James Cramer and the
Company, incorporated by reference to the Exhibits to the Company’s
Current Report on Form 8-K filed July 30, 2008.
|
|
+*10.10
|
Employment
Agreement, dated September 13, 2007, by and between Thomas J. Clarke, Jr.
and the Company, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q filed November 9,
2007.
|
|
+*10.11
|
Letter
Agreement dated October 24, 2008, by and between Thomas J. Clarke, Jr. and
the Company amending the Employment Agreement dated September 13, 2007,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q filed November 7, 2008.
|
|
+*10.12
|
Employment
Agreement dated June 30, 2008, by and between Eric Ashman and the Company,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed June 30, 2008.
|
|
+*10.13
|
Employment
Agreement dated March 26, 2007, by and between Steven Elkes and the
Company, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed May 10, 2007.
|
|
+*10.14
|
Employment
Agreement dated August 23, 2007, by and between David Morrow and the
Company, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed November 9, 2007.
|
|
+*10.15
|
Employment
Agreement dated May 15, 2008, by and between Teresa Santos and the
Company, incorporated by reference to the Exhibits to the Company’s
Current Report on Form 8-K filed May 15, 2008.
|
|
*10.16
|
Membership
Interest Purchase Agreement dated August 2, 2007 by and among TP Newco
LLC, David Barnett, Gregg Alwine and Gregg Alwine as Agent, incorporated
by reference to the Exhibits to the Company’s Current Report on Form 8-K
filed August 8, 2007.
|
|
*10.17
|
Stock
Purchase Agreement dated November 1, 2007 by and among BFPC Newco LLC,
Larry Starkweather, Kyle Selberg, Rachelle Zorn, Robert Quinn and Larry
Starkweather as Agent, incorporated by reference to the Exhibits to the
Company’s Current Report on Form 8-K filed November 6,
2007.
|
*10.18
|
Securities
Purchase 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.
|
|
*10.19
|
Agreement
of Lease, dated July 22, 1999, between 14 Wall Street Holdings 1, LLC (as
successor to W12/14 Wall Acquisition Associates LLC), as Landlord, and the
Company, as Tenant, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q filed August 16,
1999.
|
|
*10.20
|
Amendment
of Lease dated October 31, 2001, between 14 Wall Street Holdings 1, LLC
(as successor to W12/14 Wall Acquisition Associates LLC), as Landlord, and
the Company, as Tenant, incorporated by reference to the Exhibits to the
Company’s Annual Report on Form 10-K filed March 16,
2005.
|
|
*10.21
|
Second
Amendment of Lease dated March 21, 2007, between 14 Wall Street Holdings
1, LLC as Landlord, and the Company, as Tenant, incorporated by reference
to the Exhibits to the Company’s Annual Report on Form 10-K filed March
12, 2008.
|
|
*10.22
|
Third
Amendment of Lease dated December 31, 2008, between CRP/Capstone 14W
Property Owner, L.L.C. as Landlord, and the Company, as Tenant,
incorporated by reference to the Exhibits to the Company’s Annual Report
on Form 10-K filed March 13, 2009.
|
|
+*10.23
|
|
Amendment
to Employment Agreement dated December 23, 2008 by and between James J.
Cramer and the Company, incorporated by reference to the Exhibits to the
Company’s Annual Report on Form 10-K/A filed February 8,
2010.
|
+*10.24
|
Separation
Agreement and Mutual Release between the Company and Thomas J. Clarke, Jr.
dated March 13, 2009, incorporated by reference to the Exhibits to the
Company’s Current Report on Form 8-K filed March 13,
2009.
|
|
+*10.25
|
Term
Sheet between the Company and Daryl Otte dated as of May 15, 2009,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.26
|
Agreement
for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan
dated as of June 9, 2009 between the Company and Daryl Otte, incorporated
by reference to the Exhibits to the Company’s Quarterly Report on Form
10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.27
|
Change
of Control and Severance Agreement dated as of June 9, 2009 between the
Company and Daryl Otte, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q for the Quarter Ended June 30,
2009, filed February 8, 2010.
|
|
+*10.28
|
Term
Sheet between the Company and Gregory Barton dated as of June 2, 2009,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.29
|
Notice
of Waiver dated April 2, 2009 by James J. Cramer under Employment
Agreement between the Company and James J. Cramer, incorporated by
reference to the Exhibits to the Company’s Quarterly Report on Form 10-Q
for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.30
|
Letter
agreement dated April 30, 2009 between the Company and Richard Broitman,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.31
|
Letter
agreement dated May 8, 2009 between the Company and Eric Ashman,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+10.32
|
Letter
agreement dated as of March 13, 2009 between the Company and
Daryl Otte.
|
|
+*10.33
|
Letter
agreement dated June 10, 2009 between the Company and Teresa Santos,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
+*10.34
|
Form
of Agreement of Restricted Stock Units Under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q for the Quarter Ended
September 30, 2009, filed February 8, 2010.
|
|
+*10.35
|
Form
of Agreement of Grant of Cash Performance Award Under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q for the Quarter Ended
September 30, 2009, filed February 8, 2010.
|
|
+*10.36
|
Agreement
of Grant of Restricted Stock Units dated July 14, 2009 between Gregory
Barton and the Company, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q for the Quarter Ended September
30, 2009, filed February 8, 2010.
|
|
+*10.37
|
Severance
Agreement dated July 14, 2009 between Gregory Barton and the Company,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended September 30, 2009, filed
February 8, 2010.
|
|
+10.38
|
Form of Indemnification Agreement for directors and executive officers of the Company. | |
+10.39
|
Amendment
to 2007 Performance Incentive Plan, adopted by the Company November 20,
2009.
|
|
+10.40
|
Amendment
to Employment Agreement dated October 27, 2009 by and between James J.
Cramer and the Company.
|
|
*14.1
|
Code
of Business Conduct and Ethics, incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed January 31,
2005.
|
|
21.1
|
Subsidiaries
of the Company
|
|
23.1
|
Consent
of KPMG LLP.
|
|
23.2
|
Consent
of Marcum LLP.
|
|
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.
|
||
Dated:
March 30, 2010
|
By:
|
/s/
Daryl Otte
|
Daryl
Otte
|
||
Chief
Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/
Daryl Otte
|
Chief
Executive Officer
|
March
30, 2010
|
||
(Daryl
Otte)
|
||||
/s/
Richard Broitman
|
Chief
Accounting Officer
|
March
30, 2010
|
||
(Richard
Broitman)
|
||||
/s/
James J. Cramer
|
Chairman
of the Board
|
March
30, 2010
|
||
(James
J. Cramer)
|
||||
/s/
Ronni Ballowe
|
Director
|
March
30, 2010
|
||
(Ronni
Ballowe)
|
||||
/s/
William R. Gruver
|
Director
|
March
30, 2010
|
||
(William
R. Gruver)
|
||||
/s/
Derek Irwin
|
Director
|
March
30, 2010
|
||
(Derek
Irwin)
|
||||
/s/
Christopher Marshall
|
Director
|
March
30, 2010
|
||
(Christopher
Marshall)
|
||||
/s/
Martin Peretz
|
Director
|
March
30, 2010
|
||
(Martin
Peretz)
|
Page
|
||
Reports
of Independent Registered Public Accounting Firms
|
F-2
|
|
Consolidated
Balance Sheets as of December 31, 2009 and 2008
|
F-5
|
|
Consolidated
Statements of Operations for the Years Ended December 31, 2009, 2008 and
2007
|
F-6
|
|
Consolidated
Statements of Stockholders’ Equity and Comprehensive Income (Loss) for the
Years Ended December 31, 2009, 2008 and 2007
|
F-7
|
|
Consolidated
Statements of Cash Flows for the Years Ended December 31, 2009, 2008 and
2007
|
F-8
|
|
Notes
to Consolidated Financial Statements
|
F-9
|
|
Schedule
II—Valuation and Qualifying Accounts for the Years Ended December 31,
2009, 2008 and 2007
|
F-40
|
March
10, 2009, except for the effects of the restatement as discussed in Note
16 to
the consolidated financial statements (not presented herein) appearing
under Item 8 of the Company’s 2008 Annual Report on Form 10-K/A (Amendment
No. 1), as to which the date is February 3,
2010.
|
December
31,
|
||||||||
2009
|
2008
|
|||||||
assets
|
||||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents
|
$ | 60,542,494 | $ | 72,441,294 | ||||
Restricted
cash
|
— | 516,951 | ||||||
Accounts
receivable, net of allowance for doubtful accounts of $276,668 as of
December 31, 2009 and $531,092 as of December 31, 2008
|
5,963,209 | 11,167,297 | ||||||
Marketable
securities
|
2,812,400 | — | ||||||
Other
receivables
|
2,774,898 | 647,596 | ||||||
Deferred
taxes
|
— | 2,546,743 | ||||||
Prepaid
expenses and other current assets
|
1,691,038 | 1,884,247 | ||||||
Total
current assets
|
73,784,039 | 89,204,128 | ||||||
Property
and equipment, net of accumulated depreciation and amortization of
$13,263,460 as of December 31, 2009 and $11,250,569 as of December 31,
2008
|
7,493,020 | 9,672,779 | ||||||
Marketable
securities
|
17,515,687 | 1,658,178 | ||||||
Long
term investment
|
555,000 | 2,042,970 | ||||||
Other
assets
|
167,477 | 122,197 | ||||||
Goodwill
|
24,286,616 | 40,024,076 | ||||||
Other
intangibles, net
|
8,210,105 | 13,630,900 | ||||||
Deferred
taxes
|
— | 13,570,047 | ||||||
Restricted
cash
|
1,702,079 | 1,762,079 | ||||||
Total
assets
|
$ | 133,714,023 | $ | 171,687,354 | ||||
liabilities
and stockholders’ equity
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable
|
$ | 2,164,809 | $ | 280,469 | ||||
Accrued
expenses
|
7,894,136 | 2,784,902 | ||||||
Deferred
revenue
|
17,306,737 | 16,495,712 | ||||||
Other
current liabilities
|
132,682 | 205,838 | ||||||
Liabilities
of discontinued operations
|
223,165 | 225,925 | ||||||
Total
current liabilities
|
27,721,529 | 19,992,846 | ||||||
Other
liabilities
|
1,230,591 | 79,896 | ||||||
Total
liabilities
|
28,952,120 | 20,072,742 | ||||||
Stockholders’
Equity
|
||||||||
Preferred
stock; $0.01 par value; 10,000,000 shares authorized; 5,500 issued and
outstanding as of December 31, 2009 and December 31, 2008; the aggregate
liquidation preference as of December 31, 2009 and December 31, 2008
totals $55,000,000
|
55 | 55 | ||||||
Common
stock; $0.01 par value; 100,000,000 shares authorized; 37,246,362 shares
issued and 31,164,628 shares outstanding as of December 31, 2009, and
36,262,546 shares issued and 30,378,894 shares outstanding as of December
31, 2008
|
372,464 | 362,625 | ||||||
Additional
paid-in capital
|
271,715,956 | 271,271,574 | ||||||
Accumulated
other comprehensive income (loss)
|
344,372 | (290,000 | ) | |||||
Treasury
stock at cost; 6,081,734 shares as of December 31, 2009 and 5,883,652
shares as of December 31, 2008
|
(10,411,952 | ) | (9,900,284 | ) | ||||
Accumulated
deficit
|
(157,258,992 | ) | (109,829,358 | ) | ||||
Total
stockholders’ equity
|
104,761,903 | 151,614,612 | ||||||
Total
liabilities and stockholders’ equity
|
$ | 133,714,023 | $ | 171,687,354 |
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
revenue:
|
||||||||||||
Premium
services
|
$ | 37,988,579 | $ | 41,185,988 | $ | 38,421,393 | ||||||
Marketing
services
|
22,251,432 | 29,662,045 | 26,160,144 | |||||||||
Total
net revenue
|
60,240,011 | 70,848,033 | 64,581,537 | |||||||||
Operating
expense:
|
||||||||||||
Cost
of services
|
29,100,204 | 31,984,778 | 25,490,864 | |||||||||
Sales
and marketing
|
12,077,546 | 14,263,199 | 12,208,648 | |||||||||
General
and administrative
|
18,916,456 | 17,521,238 | 12,215,797 | |||||||||
Depreciation
and amortization
|
4,985,297 | 5,894,186 | 2,528,042 | |||||||||
Asset
impairments
|
24,137,069 | 2,325,481 | — | |||||||||
Restructuring
and other charges
|
3,460,914 | — | — | |||||||||
Loss
of disposition of assets
|
529,708 | — | — | |||||||||
Total
operating expense
|
93,207,194 | 71,988,882 | 52,443,351 | |||||||||
Operating
(loss) income
|
(32,967,183 | ) | (1,140,849 | ) | 12,138,186 | |||||||
Net
interest income
|
949,727 | 1,573,752 | 2,476,266 | |||||||||
Gain
on sales of marketable securities
|
295,430 | 120,937 | — | |||||||||
Other
income
|
153,677 | — | — | |||||||||
(Loss)
income from continuing operations before income taxes
|
(31,568,349 | ) | 553,840 | 14,614,452 | ||||||||
(Provision)
benefit for income taxes
|
(15,845,964 | ) | (2,040 | ) | 15,693,339 | |||||||
(Loss)
income from continuing operations
|
(47,414,313 | ) | 551,800 | 30,307,791 | ||||||||
Discontinued
operations:
|
||||||||||||
Loss
from discontinued operations
|
(15,321 | ) | (8,012 | ) | (12,829 | ) | ||||||
Net
(loss) income
|
(47,429,634 | ) | 543,788 | 30,294,962 | ||||||||
Preferred
stock deemed dividend
|
— | — | 1,802,733 | |||||||||
Preferred
stock cash dividend
|
385,696 | 385,696 | 96,424 | |||||||||
Preferred
stock dividends
|
385,696 | 385,696 | 1,899,157 | |||||||||
Net
(loss) income attributable to common stockholders
|
$ | (47,815,330 | ) | $ | 158,092 | $ | 28,395,805 | |||||
Basic
net (loss) income per share:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.05 | |||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||
Net
(loss) income
|
(1.55 | ) | 0.02 | 1.05 | ||||||||
Preferred
stock dividends
|
(0.01 | ) | (0.01 | ) | (0.07 | ) | ||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.98 | |||||
Diluted
net (loss) income per share:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.03 | |||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||
Net
(loss) income
|
(1.55 | ) | 0.02 | 1.03 | ||||||||
Preferred
stock dividends
|
(0.01 | ) | (0.01 | ) | (0.06 | ) | ||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.97 | |||||
Weighted
average basic shares outstanding
|
30,586,460 | 30,427,421 | 28,830,366 | |||||||||
Weighted
average diluted shares outstanding
|
30,586,460 | 30,835,131 | 29,387,727 |
Common
Stock
|
Series
B Preferred Stock
|
Accumulated
Other
|
Treasury
Stock
|
Total
|
||||||||||||||||||||||||||||||||||||
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Additional
Paid in
Capital
|
Comprehensive
Income
|
Shares
|
Cost
|
Accumulated
Deficit
|
Stockholders'
Equity
|
|||||||||||||||||||||||||||||||
Balance
at December 31, 2006
|
33,606,835 | $ | 336,068 | - | $ | - | $ | 193,556,899 | $ | - | (5,752,000 | ) | $ | (9,033,471 | ) | $ | (140,668,108 | ) | $ | 44,191,388 | ||||||||||||||||||||
Exercise
and issuance of equity grants
|
739,424 | 7,394 | - | - | 3,010,029 | - | - | - | - | 3,017,423 | ||||||||||||||||||||||||||||||
Issuance
of common stock for acquisitions
|
1,659,878 | 16,599 | - | - | 20,258,848 | - | - | - | - | 20,275,447 | ||||||||||||||||||||||||||||||
Issuance
of preferred stock
|
- | - | 5,500 | 55 | 54,839,028 | - | - | - | - | 54,839,083 | ||||||||||||||||||||||||||||||
Stock-based
consideration for services
|
- | - | - | - | 2,115,599 | - | - | - | 2,115,599 | |||||||||||||||||||||||||||||||
Common
stock cash dividends
|
- | - | - | - | (2,931,671 | ) | - | - | - | - | (2,931,671 | ) | ||||||||||||||||||||||||||||
Preferred
stock cash dividends
|
(96,424 | ) | - | (96,424 | ) | |||||||||||||||||||||||||||||||||||
Net
income
|
- | - | - | - | - | - | - | - | 30,294,962 | 30,294,962 | ||||||||||||||||||||||||||||||
Balance
at December 31, 2007
|
36,006,137 | 360,061 | 5,500 | 55 | 270,752,308 | - | (5,752,000 | ) | (9,033,471 | ) | (110,373,146 | ) | 151,705,807 | |||||||||||||||||||||||||||
Unrealized
loss on marketable securities
|
- | - | - | - | - | (290,000 | ) | - | - | - | (290,000 | ) | ||||||||||||||||||||||||||||
Exercise
and issuance of equity grants
|
256,409 | 2,564 | - | - | 586,310 | - | - | - | - | 588,874 | ||||||||||||||||||||||||||||||
Costs
associated with issuance of preferred stock
|
- | - | - | - | (125,000 | ) | - | - | - | - | (125,000 | ) | ||||||||||||||||||||||||||||
Stock
repurchase
|
- | - | - | - | - | - | (131,652 | ) | (866,813 | ) | - | (866,813 | ) | |||||||||||||||||||||||||||
Stock-based
consideration for services
|
- | - | - | - | 3,537,085 | - | - | - | - | 3,537,085 | ||||||||||||||||||||||||||||||
Common
stock cash dividends
|
- | - | - | - | (3,093,433 | ) | - | - | - | (3,093,433 | ) | |||||||||||||||||||||||||||||
Preferred
stock cash dividends
|
- | - | - | - | (385,696 | ) | - | - | - | - | (385,696 | ) | ||||||||||||||||||||||||||||
Net
income
|
- | - | - | - | - | - | - | - | 543,788 | 543,788 | ||||||||||||||||||||||||||||||
Balance
at December 31, 2008
|
36,262,546 | 362,625 | 5,500 | 55 | 271,271,574 | (290,000 | ) | (5,883,652 | ) | (9,900,284 | ) | (109,829,358 | ) | 151,614,612 | ||||||||||||||||||||||||||
Unrealized
gain on marketable securities
|
- | - | - | - | - | 634,372 | - | - | - | 634,372 | ||||||||||||||||||||||||||||||
Exercise
and issuance of equity grants
|
335,915 | 3,360 | - | - | (3,360 | ) | - | (93,867 | ) | (230,287 | ) | - | (230,287 | ) | ||||||||||||||||||||||||||
Issuance
of common stock for acquisition
|
647,901 | 6,479 | - | - | 1,418,903 | - | - | - | - | 1,425,382 | ||||||||||||||||||||||||||||||
Stock
repurchase
|
- | - | - | - | - | - | (104,215 | ) | (281,381 | ) | - | (281,381 | ) | |||||||||||||||||||||||||||
Stock-based
consideration for services
|
- | - | - | - | 2,615,484 | - | - | - | - | 2,615,484 | ||||||||||||||||||||||||||||||
Common
stock cash dividends
|
- | - | - | - | (3,200,949 | ) | - | - | - | (3,200,949 | ) | |||||||||||||||||||||||||||||
Preferred
stock cash dividends
|
- | - | - | - | (385,696 | ) | - | - | - | - | (385,696 | ) | ||||||||||||||||||||||||||||
Net
loss
|
- | - | - | - | - | - | - | - | (47,429,634 | ) | (47,429,634 | ) | ||||||||||||||||||||||||||||
Balance
at December 31, 2009
|
37,246,362 | $ | 372,464 | 5,500 | $ | 55 | $ | 271,715,956 | $ | 344,372 | (6,081,734 | ) | $ | (10,411,952 | ) | $ | (157,258,992 | ) | $ | 104,761,903 |
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Cash
Flows from Operating Activities:
|
||||||||||||
Net
(loss) income
|
$ | (47,429,634 | ) | $ | 543,788 | $ | 30,294,962 | |||||
Loss
from discontinued operations
|
15,321 | 8,012 | 12,829 | |||||||||
(Loss)
income from continuing operations
|
(47,414,313 | ) | 551,800 | 30,307,791 | ||||||||
Adjustments
to reconcile income from continuing operations to net cash provided by
operating activities:
|
||||||||||||
Stock-based
compensation expense
|
2,739,566 | 3,537,085 | 2,115,599 | |||||||||
Provision
for doubtful accounts
|
408,425 | 692,406 | 175,000 | |||||||||
Depreciation
and amortization
|
4,985,297 | 5,894,186 | 2,528,042 | |||||||||
Deferred
taxes
|
16,116,790 | (116,790 | ) | (16,000,000 | ) | |||||||
Impairment
charges
|
24,137,069 | 2,325,481 | — | |||||||||
Restructuring
and other charges
|
451,695 | — | — | |||||||||
Deferred
rent
|
1,233,700 | 195,665 | 119,317 | |||||||||
Loss
on disposition of assets
|
529,708 | — | — | |||||||||
Loss
on disposal of equipment
|
— | 17,117 | — | |||||||||
Changes
in operating assets and liabilities:
|
||||||||||||
Accounts
receivable
|
2,386,497 | (644,981 | ) | (3,205,493 | ) | |||||||
Other
receivables
|
(275,665 | ) | 579,548 | (350,638 | ) | |||||||
Prepaid
expenses and other current assets
|
(5,316 | ) | (193,389 | ) | (143,765 | ) | ||||||
Other
assets
|
18,616 | 143,896 | (52,965 | ) | ||||||||
Accounts
payable
|
1,865,890 | (1,908,790 | ) | 134,663 | ||||||||
Accrued
expenses
|
4,722,270 | (2,125,309 | ) | (1,601,575 | ) | |||||||
Deferred
revenue
|
2,143,804 | (581,009 | ) | (570,073 | ) | |||||||
Other
current liabilities
|
194,847 | (8,816 | ) | 31,373 | ||||||||
Other
liabilities
|
(11,206 | ) | (66,196 | ) | (46,280 | ) | ||||||
Net
cash provided by continuing operations
|
14,227,674 | 8,291,904 | 13,440,996 | |||||||||
Net
cash used in discontinued operations
|
(18,081 | ) | (14,329 | ) | (3,012 | ) | ||||||
Net
cash provided by operating activities
|
14,209,593 | 8,277,575 | 13,437,984 | |||||||||
Cash
Flows from Investing Activities:
|
||||||||||||
Long-term
investment
|
— | (2,042,970 | ) | — | ||||||||
Purchase
of marketable securities
|
(29,204,799 | ) | (39,945 | ) | (1,908,233 | ) | ||||||
Sale
of marketable securities
|
11,169,263 | — | — | |||||||||
Purchase
of Bankers Financial Products Corporation.
|
— | (94,184 | ) | (16,811,966 | ) | |||||||
Purchase
of Corsis Technology Group II LLC
|
— | (28,270 | ) | (11,890,071 | ) | |||||||
Purchase
of Stockpickr LLC
|
— | (6,209 | ) | (1,572,106 | ) | |||||||
Purchase
of Weiss Ratings, Inc.
|
— | — | 124,663 | |||||||||
Purchase
of Kikucall, Inc.
|
(3,816,521 | ) | — | — | ||||||||
Sale
of Promotions.com
|
1,000,000 | — | — | |||||||||
Capital
expenditures
|
(1,956,355 | ) | (5,234,806 | ) | (4,979,247 | ) | ||||||
Proceeds
from the sale of fixed assets
|
— | 28,153 | — | |||||||||
Net
cash used in investing activities
|
(22,808,412 | ) | (7,418,231 | ) | (37,036,960 | ) | ||||||
Cash
Flows from Financing Activities:
|
||||||||||||
Proceeds
from the exercise of stock options
|
— | 588,874 | 3,017,423 | |||||||||
Net
proceeds from the sale of preferred stock
|
— | — | 54,839,083 | |||||||||
Costs
associated with the sale of preferred stock
|
— | (125,000 | ) | — | ||||||||
Cash
dividends paid on common stock
|
(3,200,949 | ) | (3,093,433 | ) | (2,931,671 | ) | ||||||
Cash
dividends paid on preferred stock
|
(385,696 | ) | (482,120 | ) | (96,424 | ) | ||||||
Repayment
of note payable
|
— | — | (22,146 | ) | ||||||||
Restricted
cash
|
516,951 | (1,702,079 | ) | — | ||||||||
Purchase
of treasury stock
|
(230,287 | ) | (866,813 | ) | — | |||||||
Net
cash (used in) provided by financing activities
|
(3,299,981 | ) | (5,680,571 | ) | 54,806,265 | |||||||
Net
(decrease) increase in cash and cash equivalents
|
(11,898,800 | ) | (4,821,227 | ) | 31,207,289 | |||||||
Cash
and cash equivalents, beginning of period
|
72,441,294 | 77,262,521 | 46,055,232 | |||||||||
Cash
and cash equivalents, end of period
|
$ | 60,542,494 | $ | 72,441,294 | $ | 77,262,521 | ||||||
Supplemental
disclosures of cash flow information:
|
||||||||||||
Cash
payments made for interest
|
$ | 9,803 | $ | 36,813 | $ | 41,146 | ||||||
Cash
payments made for income taxes
|
$ | 85,000 | $ | 348,240 | $ | 242,771 | ||||||
Noncash investing and financing activities: | ||||||||||||
Stock issued for business combinations | $ | 1,425,382 | $ | — | $ | 20,275,447 | ||||||
Notes received for sale of Promotions.com | $ | 2,127,184 | $ | — | $ | — | ||||||
Treasury
shares received in settlement of Promotions.com working capital and
debt adjustment
|
$ | 281,381 | $ | 541,084 | $ | — |
|
·
|
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. See Note 3 (Acquisitions and Divestitures) for further
information related to the individual impairments
recorded.
|
For the Years Ended December 31,
|
||||||||
2008
|
2007
|
|||||||
Expected
option lives
|
3.5
years
|
3.5
years
|
||||||
Expected
volatility
|
48.20 | % | 46.56 | % | ||||
Risk-free
interest rate
|
2.32 | % | 4.62 | % | ||||
Expected
dividends
|
0.96 | % | 0.94 | % |
Initial
|
Year
2005
|
Year
2006
|
Year
2007
|
Year
2008
|
Year
2009
|
Balance
|
||||||||||||||||||||||
Charge
|
Activity
|
Activity
|
Activity
|
Activity
|
Activity
|
12/31/2009
|
||||||||||||||||||||||
Net
asset write-off
|
$ | 666,546 | $ | (666,546 | ) | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||||||
Severance
payments
|
1,134,323 | (905,566 | ) | (6,332 | ) | - | - | - | 222,425 | |||||||||||||||||||
Extinguishment
of lease and other obligations
|
582,483 | (531,310 | ) | (51,173 | ) | 9,817 | (6,317 | ) | (2,760 | ) | 740 | |||||||||||||||||
$ | 2,383,352 | $ | (2,103,422 | ) | $ | (57,505 | ) | $ | 9,817 | $ | (6,317 | ) | $ | (2,760 | ) | $ | 223,165 |
Assets
acquired:
|
||||
Accounts
receivable
|
$ | 18,539 | ||
Other
current assets
|
100,003 | |||
Other
assets
|
93,667 | |||
Goodwill
|
4,745,617 | |||
Other
intangibles
|
538,000 | |||
Total
assets acquired
|
5,495,826 | |||
Liabilities
assumed:
|
||||
Accounts
payable and accrued expenses
|
253,923 | |||
Total
consideration
|
$ | 5,241,903 |
For the Year Ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Total
net revenue
|
$ | 60,963,012 | $ | 71,992,091 | ||||
Net
loss
|
$ | (47,661,651 | ) | $ | (782,885 | ) | ||
Basic
net loss per share
|
$ | (1.53 | ) | $ | (0.03 | ) | ||
Diluted
net loss per share
|
$ | (1.53 | ) | $ | (0.02 | ) | ||
Weighted
average basic shares outstanding
|
31,234,361 | 31,075,322 | ||||||
Weighted
average diluted shares outstanding
|
31,234,361 | 31,483,032 |
For the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Basic
net (loss) income per share Numerator:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (47,414,313 | ) | $ | 551,800 | $ | 30,307,791 | |||||
Loss
from discontinued operations
|
(15,321 | ) | (8,012 | ) | (12,829 | ) | ||||||
Preferred
stock deemed dividends
|
— | — | (1,802,733 | ) | ||||||||
Preferred
stock cash dividends
|
(385,696 | ) | (385,696 | ) | (96,424 | ) | ||||||
Numerator
for basic earnings per share – Net (loss) income attributable to common
stockholders
|
$ | (47,815,330 | ) | $ | 158,092 | $ | 28,395,805 | |||||
Denominator:
|
||||||||||||
Weighted
average basic shares outstanding
|
30,586,460 | 30,427,421 | 28,830,366 | |||||||||
Net
(loss) income per basic share:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.05 | |||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||
Preferred
stock deemed dividends
|
— | — | (0.07 | ) | ||||||||
Preferred
stock cash dividends
|
(0.01 | ) | (0.01 | ) | (0.00 | ) | ||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.98 | |||||
Diluted
net (loss) income per share:
Numerator:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (47,414,313 | ) | $ | 551,800 | $ | 30,307,791 | |||||
Loss
from discontinued operations
|
(15,321 | ) | (8,012 | ) | (12,829 | ) | ||||||
Preferred
stock deemed dividends
|
— | — | (1,802,733 | ) | ||||||||
Preferred
stock cash dividends
|
(385,696 | ) | (385,696 | ) | (96,424 | ) | ||||||
Numerator
for diluted earnings per share - Net (loss) income attributable to common
stockholders
|
$ | (47,815,330 | ) | $ | 158,092 | $ | 28,395,805 | |||||
Denominator:
|
||||||||||||
Weighted
average basic shares outstanding
|
30,586,460 | 30,427,421 | 28,830,366 | |||||||||
Weighted
average effect of dilutive securities:
|
||||||||||||
Employee
stock options and restricted stock units
|
— | 407,710 | 557,361 | |||||||||
Weighted
average diluted shares outstanding
|
30,586,460 | 30,835,131 | 29,387,727 | |||||||||
Net
(loss) income per diluted share:
|
||||||||||||
(Loss)
income from continuing operations
|
$ | (1.55 | ) | $ | 0.02 | $ | 1.03 | |||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||
Preferred
stock deemed dividend
|
— | — | (0.06 | ) | ||||||||
Preferred
stock cash dividend
|
(0.01 | ) | (0.01 | ) | (0.00 | ) | ||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.56 | ) | $ | 0.01 | $ | 0.97 |
•
|
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).
|
Description:
|
Total
|
Level 1
|
Level 2
|
Level 3
|
||||||||||||
Cash
and cash equivalents (1)
|
$ | 60,542,494 | $ | 60,542,494 | $ | — | $ | — | ||||||||
Marketable
securities (2)
|
20,328,087 | 18,558,087 | — | 1,770,000 | ||||||||||||
Long
term investment (3)
|
555,000 | — | — | 555,000 | ||||||||||||
Total
at fair value
|
$ | 81,425,581 | $ | 79,100,581 | $ | — | $ | 2,325,000 |
|
(1)
|
Cash
and cash equivalents, totaling $60,542,494, consists primarily of money
market funds and checking accounts for which we determine fair value
through quoted market prices.
|
|
(2)
|
Marketable
securities consist of 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.
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 income (loss), whereas
other-than-temporary impairment charges are recorded in our consolidated
statement of operations. As of December 31, 2009, the Company
determined there was a decline in the fair value of its ARS investments of
$105,000, which was deemed temporary and was included within accumulated
other comprehensive income (loss). 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. The
impairment charge approximated $1.5 million. There have been no
additional events during the nine months ended December 31, 2009 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, 2009
|
$ | 1,658,178 | $ | 2,042,970 | ||||
Transfers
to Level 1
|
(48,178 | ) | — | |||||
Increase
in fair value of investment
|
185,000 | — | ||||||
Redemption
of Auction Rate Security
|
(25,000 | ) | — | |||||
Impairment
charge
|
— | (1,487,970 | ) | |||||
Balance
at December 31, 2009
|
$ | 1,770,000 | $ | 555,000 |
December 31,
|
||||||||
2009
|
2008
|
|||||||
Computer
equipment
|
$ | 16,499,509 | $ | 16,268,874 | ||||
Furniture
and fixtures
|
1,354,932 | 1,522,888 | ||||||
Leasehold
improvements
|
2,902,039 | 3,131,586 | ||||||
20,756,480 | 20,923,348 | |||||||
Less
accumulated depreciation and amortization
|
13,263,460 | 11,250,569 | ||||||
Property
and equipment, net
|
$ | 7,493,020 | $ | 9,672,779 |
Balance
December 31, 2008
|
$ | 5,947,990 | ||
Additions
|
774,747 | |||
Deletions
|
(600,735 | ) | ||
Balance
December 31, 2009
|
$ | 6,122,002 |
December 31,
|
||||||||
2009
|
2008
|
|||||||
Total
goodwill not subject to amortization
|
$ | 24,286,616 | $ | 40,024,076 | ||||
Other
intangible assets not subject to amortization:
|
||||||||
Trade
name
|
$ | 720,000 | $ | 1,020,000 | ||||
Total
other intangible assets not subject to amortization
|
720,000 | 1,020,000 | ||||||
Other
intangible assets subject to amortization:
|
||||||||
Customer
relationships
|
6,862,136 | 10,234,176 | ||||||
Syndication
agreement
|
870,000 | 870,000 | ||||||
Software
models
|
2,070,000 | 2,192,000 | ||||||
Noncompete
agreements
|
1,536,678 | 2,813,256 | ||||||
Products
database
|
137,000 | 137,000 | ||||||
Total
other intangible assets subject to amortization
|
11,475,814 | 16,246,432 | ||||||
Less
accumulated amortization
|
(3,985,709 | ) | (3,635,532 | ) | ||||
Net
other intangible assets subject to amortization
|
7,490,105 | 12,610,900 | ||||||
Total
other intangible assets
|
$ | 8,210,105 | $ | 13,630,900 |
For
the Years
Ended
|
||||
December
31,
|
Amount
|
|||
2010
|
$ | 1,434,949 | ||
2011
|
1,371,687 | |||
2012
|
1,151,569 | |||
2013
|
793,814 | |||
2014
|
793,814 | |||
Thereafter
|
1,944,272 | |||
Total
|
$ | 7,490,105 |
December
31,
|
||||||||
2009
|
2008
|
|||||||
Payroll
and related costs
|
$ | 3,731,342 | $ | 547,395 | ||||
Restructuring
and other charges (see Note 15)
|
1,230,056 | — | ||||||
Professional
fees
|
1,092,214 | 478,857 | ||||||
Third
party content and data costs
|
289,226 | 232,272 | ||||||
Other
liabilities
|
1,551,298 | 1,526,378 | ||||||
Total
accrued expenses
|
$ | 7,894,136 | $ | 2,784,902 |
For
the years ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
(in
thousands)
|
||||||||||||
Current
taxes:
|
||||||||||||
U.S.
federal
|
$ | (217 | ) | $ | (82 | ) | $ | 307 | ||||
State
and local
|
(16 | ) | 201 | 0 | ||||||||
Total
current tax expense (benefit)
|
$ | (233 | ) | $ | 119 | $ | 307 | |||||
Deferred
taxes:
|
||||||||||||
U.S.
federal
|
$ | 13,699 | $ | (99 | ) | $ | (13,600 | ) | ||||
State
and local
|
2,418 | (18 | ) | (2,400 | ) | |||||||
Total
deferred tax expense (benefit)
|
$ | 16,117 | $ | (117 | ) | $ | (16,000 | ) | ||||
Total
tax expense (benefit)
|
$ | 15,884 | $ | 2 | $ | (15,693 | ) |
For
the years ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
U.S.
statutory federal income tax rate
|
34.0 | % | 34.0 | % | 34.0 | % | ||||||
State
income taxes, net of federal tax benefit
|
3.5 | 22.4 | 6.0 | |||||||||
Effect
of permanent differences
|
(9.7 | ) | 8.0 | 1.5 | ||||||||
Change
to valuation allowance
|
(76.7 | ) | (62.0 | ) | (144.3 | ) | ||||||
Other
|
(1.4 | ) | (2.0 | ) | 0.7 | |||||||
Effective
income tax rate
|
(50.3 | )% | 0.4 | % | (102.1 | )% |
As
of December 31,
|
||||||||
2009
|
2008
|
|||||||
(in
thousands)
|
||||||||
Deferred
tax assets:
|
||||||||
Operating
loss carryforward
|
$ | 52,996 | $ | 50,123 | ||||
Windfall
tax benefit carryforward
|
(6,923 | ) | (8,186 | ) | ||||
Capital
loss carryforward
|
- | 1,422 | ||||||
Goodwill
|
2,477 | - | ||||||
Intangible
assets
|
251 | - | ||||||
Alternative
minimum tax
|
- | 217 | ||||||
Accrued
expenses
|
1,518 | 2,314 | ||||||
Depreciation
|
- | 40 | ||||||
Other
|
594 | - | ||||||
Total
deferred tax assets
|
50,913 | 45,930 | ||||||
Deferred
tax liabilities:
|
||||||||
Depreciation
|
(1,062 | ) | - | |||||
Intangible
assets
|
- | (2,274 | ) | |||||
Goodwill
|
- | (1,617 | ) | |||||
Total
deferred tax liabilities
|
(1,062 | ) | (3,891 | ) | ||||
Less:
valuation allowance
|
(49,851 | ) | (25,922 | ) | ||||
Net
deferred tax assets
|
$ | - | $ | 16,117 |
Shares
Underlying
Awards
|
Weighted
Average
Exercise
Price
|
Aggregate
Intrinsic
Value
($000)
|
Weighted
Average
Remaining
Contractual Life
(In Years)
|
|||||||||||||
Awards
outstanding, December 31, 2008
|
2,617,782 | $ | 6.37 | |||||||||||||
Restricted
stock units granted
|
1,952,109 | $ | 0.00 | |||||||||||||
Restricted
stock units issued
|
(335,915 | ) | $ | 0.00 | ||||||||||||
Options
cancelled
|
(1,321,480 | ) | $ | 8.15 | ||||||||||||
Restricted
stock units cancelled
|
(242,276 | ) | $ | 0.00 | ||||||||||||
Awards
outstanding, December 31, 2009
|
2,670,220 | $ | 2.21 | $ | 4,695 | 3.12 | ||||||||||
Awards
vested and expected to vest at December 31, 2009
|
2,398,930 | $ | 2.43 | $ | 4,069 | 2.99 | ||||||||||
Options
exercisable at December 31, 2009
|
499,474 | $ | 7.97 | $ | 0 | 1.53 | ||||||||||
Restricted
stock units exercisable at December 31, 2009
|
0 | $ | 0.00 | $ | 0 | 3.52 |
Options
|
||||||||||||||||||||
Outstanding
|
Options
|
Weighted
|
||||||||||||||||||
Weighted
|
Outstanding
|
Average
|
||||||||||||||||||
Average
|
Weighted
|
Exercise
|
||||||||||||||||||
Remaining
|
Average
|
Price
of
|
||||||||||||||||||
Range
of
|
Options
|
Contractual
|
Exercise
|
Options
|
Options
|
|||||||||||||||
Exercise
Price
|
Outstanding
|
Life
|
Price
|
Exercisable
|
Exercisable
|
|||||||||||||||
$ 3.62
- $ 4.08
|
146,335 | 0.9 | $ | 3.99 | 123,001 | $ | 4.05 | |||||||||||||
$ 7.15
- $10.53
|
395,962 | 2.2 | $ | 8.51 | 270,875 | $ | 8.42 | |||||||||||||
$10.90
- $13.00
|
171,733 | 2.6 | $ | 11.39 | 105,598 | $ | 11.39 | |||||||||||||
Total
|
714,030 | 2.0 | $ | 8.28 | 499,474 | $ | 7.97 |
Unvested Awards
|
Awards
|
Weighted
Average
Grant Date
Fair Value
|
||||||
Shares
underlying awards unvested at January 1, 2009
|
1,609,990 | $ | 5.70 | |||||
Shares
underlying restricted stock units granted
|
1,952,109 | $ | 2.50 | |||||
Shares
underlying options vested
|
(393,499 | ) | $ | 3.53 | ||||
Shares
underlying restricted stock units issued
|
(335,915 | ) | $ | 6.73 | ||||
Shares
underlying unvested options cancelled
|
(419,663 | ) | $ | 3.77 | ||||
Shares
underlying unvested restricted stock units cancelled
|
(242,276 | ) | $ | 4.60 | ||||
Shares
underlying awards unvested at December 31, 2009
|
2,170,746 | $ | 3.37 |
Payments
Due by Year
|
||||||||||||||||||||||||||||
After
|
||||||||||||||||||||||||||||
Contractual
obligations:
|
Total
|
2010
|
2011
|
2012
|
2013
|
2014
|
2014
|
|||||||||||||||||||||
Operating
leases
|
$ | 20,729,230 | $ | 1,612,187 | $ | 2,197,482 | $ | 2,092,126 | $ | 2,084,866 | $ | 1,878,937 | $ | 10,863,632 | ||||||||||||||
Employment
agreements
|
1,763,833 | 1,763,833 | — | — | — | — | — | |||||||||||||||||||||
Outside
contributors
|
507,000 | 457,000 | 50,000 | — | — | — | — | |||||||||||||||||||||
Total
contractual cash obligations
|
$ | 23,000,063 | $ | 3,833,020 | $ | 2,247,482 | $ | 2,092,126 | $ | 2,084,866 | $ | 1,878,937 | $ | 10,863,632 |
|
·
|
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 13 (Long-Term
Investment)).
|
Initial
Charge
|
Additions
|
Payments
|
Noncash
Deductions
|
Balance
12/31/09
|
||||||||||||||||
Workforce
reduction
|
$ | 1,741,752 | $ | 726,385 | $ | (1,779,163 | ) | $ | (208,918 | ) | $ | 480,056 | ||||||||
Lease
termination
|
- | 750,000 | - | - | 750,000 | |||||||||||||||
Asset
write-off
|
242,777 | - | - | (242,777 | ) | - | ||||||||||||||
$ | 1,984,529 | $ | 1,476,385 | $ | (1,779,163 | ) | $ | (451,695 | ) | $ | 1,230,056 |
For the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
(loss) income
|
$ | (47,429,634 | ) | $ | 543,788 | $ |
30,294,962
|
|||||
Recovery
of temporary impairment of ARS
|
185,000 | (290,000 | ) |
-
|
||||||||
Unrealized
gain on marketable securities
|
744,802 | - |
-
|
|||||||||
Reclass
from AOCI to earnings due to sale
|
(295,430 | ) | - |
-
|
||||||||
Comprehensive
(loss) income
|
$ | (46,795,262 | ) | $ | 253,788 | $ |
30,294,962
|
For
the Year Ended December 31, 2009
|
||||||||||||||||
First Quarter
|
Second Quarter
|
Third Quarter
|
Fourth Quarter
|
|||||||||||||
(In
thousands, except per share data)
|
||||||||||||||||
Total
revenue
|
$ | 13,500 | $ | 14,992 | $ | 15,236 | $ | 16,512 | ||||||||
Total
operating expense
|
43,357 | 15,263 | 16,752 | 17,836 | ||||||||||||
(Loss)
income from continuing operations before income taxes
|
(29,472 | ) | 350 | (1,295 | ) | (1,151 | ) | |||||||||
Provision
for income tax
|
(16,227 | ) | — | — | 381 | |||||||||||
(Loss)
income from continuing operations
|
(45,699 | ) | 350 | (1,295 | ) | (770 | ) | |||||||||
Income
(loss) from discontinued operations
|
1 | (10 | ) | (2 | ) | (4 | ) | |||||||||
Net
(loss) income
|
(45,698 | ) | 340 | (1,297 | ) | (775 | ) | |||||||||
Preferred
stock dividends
|
96 | 96 | 96 | 96 | ||||||||||||
Net
(loss) income attributable to common stockholders
|
$ | (45,794 | ) | $ | 244 | $ | (1,393 | ) | $ | (871 | ) | |||||
Basic
net (loss) income per share:
|
||||||||||||||||
(Loss)
income from continuing operations
|
$ | (1.50 | ) | $ | 0.01 | $ | (0.05 | ) | $ | (0.03 | ) | |||||
Income
(loss) from discontinued operations
|
0.00 | (0.00 | ) | (0.00 | ) | (0.00 | ) | |||||||||
Net
(loss) income
|
(1.50 | ) | 0.01 | (0.05 | ) | (0.03 | ) | |||||||||
Preferred
stock dividends
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
(loss) income attributable to common stockholders
|
$ | (1.50 | ) | $ | 0.01 | $ | (0.05 | ) | $ | (0.03 | ) | |||||
Diluted
net income (loss) per share:
|
||||||||||||||||
(Loss)
income from continuing operations
|
$ | (1.50 | ) | $ | 0.01 | $ | (0.05 | ) | $ | (0.03 | ) | |||||
Income
(loss) from discontinued operations
|
0.00 | (0.00 | ) | (0.00 | ) | (0.00 | ) | |||||||||
Net
(loss) income
|
(1.50 | ) | 0.01 | (0.05 | ) | (0.03 | ) | |||||||||
Preferred
stock dividends
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss) attributable to common stockholders
|
$ | (1.50 | ) | $ | 0.01 | $ | (0.05 | ) | $ | (0.03 | ) |
For the Year Ended December 31, 2008
|
||||||||||||||||
First Quarter
|
Second Quarter
|
Third Quarter
|
Fourth Quarter
|
|||||||||||||
(In thousands, except per share data)
|
||||||||||||||||
Total
revenue
|
$ | 17,992 | $ | 18,404 | $ | 17,049 | $ | 17,403 | ||||||||
Total
operating expense
|
16,994 | 17,615 | 17,981 | 19,399 | ||||||||||||
Income
(loss) from continuing operations before income taxes
|
1,684 | 1,190 | (587 | ) | (1,733 | ) | ||||||||||
(Provision)
benefit for income tax
|
(146 | ) | (126 | ) | (106 | ) | 376 | |||||||||
Income
(loss) from continuing operations
|
1,538 | 1,064 | (693 | ) | (1,357 | ) | ||||||||||
Loss
from discontinued operations
|
(3 | ) | (2 | ) | (3 | ) | (— | ) | ||||||||
Net
income (loss)
|
1,535 | 1,062 | (696 | ) | (1,357 | ) | ||||||||||
Preferred
stock dividends
|
96 | 96 | 96 | 96 | ||||||||||||
Net
income (loss) attributable to common stockholders
|
$ | 1,439 | $ | 966 | $ | (792 | ) | $ | (1,453 | ) | ||||||
Basic
net income (loss) per share:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.05 | $ | 0.03 | $ | (0.03 | ) | $ | (0.05 | ) | ||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss)
|
0.05 | 0.03 | (0.03 | ) | (0.05 | ) | ||||||||||
Preferred
stock dividends
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss) attributable to common stockholders
|
$ | 0.05 | $ | 0.03 | $ | (0.03 | ) | $ | (0.05 | ) | ||||||
Diluted
net income (loss) per share:
|
||||||||||||||||
Income
(loss) from continuing operations
|
$ | 0.04 | $ | 0.03 | $ | (0.03 | ) | $ | (0.05 | ) | ||||||
Loss
from discontinued operations
|
(0.00 | ) | (0.00 | ) | (0.00 | ) | (0.00 | ) | ||||||||
Net
income (loss)
|
0.04 | 0.03 | (0.03 | ) | (0.05 | ) | ||||||||||
Preferred
stock dividends
|
— | — | (0.00 | ) | (0.00 | ) | ||||||||||
Net
income (loss) attributable to common stockholders
|
$ | 0.04 | $ | 0.03 | $ | (0.03 | ) | $ | (0.05 | ) |
Allowance for Doubtful
Accounts
|
Balance
at
Beginning
of Period
|
Provisions
Charged to
Expense
|
Write-offs
|
Balance at
End
of Period
|
||||||||||||
For
the year ended December 31, 2009
|
$ | 531,092 | $ | 408,425 | $ | 662,849 | $ | 276,668 | ||||||||
For
the year ended December 31, 2008
|
$ | 242,807 | $ | 692,405 | $ | 404,120 | $ | 531,092 | ||||||||
For
the year ended December 31, 2007
|
$ | 216,077 | $ | 175,000 | $ | 148,270 | $ | 242,807 |
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
|
Amended
and Restated 1998 Stock Incentive Plan, dated May 29, 2002, incorporated
by reference to the Exhibits to the Company’s Quarterly Report on Form
10-Q filed August 14, 2002.
|
|
+*10.2
|
Form
of Stock Option Grant Agreement under the 1998 Stock Incentive Plan,
incorporated by reference to the Exhibits to the Company’s Annual Report
on Form 10-K filed March 16, 2005.
|
|
+*10.3
|
Form
of Restricted Stock Unit Grant Agreement under the 1998 Stock Incentive
Plan, incorporated by reference to the Exhibits to the Company’s Annual
Report on Form 10-K filed March 16, 2006.
|
|
+*10.4
|
2007
Performance Incentive Plan, incorporated by reference to Appendix A to the
Company’s 2007 Definitive Proxy Statement on Schedule 14A filed April 23,
2007.
|
|
+*10.5
|
Form
of Stock Option Grant Agreement under the Company’s 2007 Performance
Incentive Plan, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed August 9, 2007.
|
|
+*10.6
|
Form
of Restricted Stock Unit Grant Agreement under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q filed August 9,
2007.
|
+*10.7
|
Form
of Cash Performance Award Agreement under the Company’s 2007 Performance
Incentive Plan, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed August 9, 2007.
|
|
+*10.8
|
Employment
Agreement dated April 9, 2008 between James Cramer and the Company,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed April 9, 2008.
|
|
+*10.9
|
Amendment
to Employment Agreement dated July 30, 2008 between James Cramer and the
Company, incorporated by reference to the Exhibits to the Company’s
Current Report on Form 8-K filed July 30, 2008.
|
|
+*10.10
|
Employment
Agreement, dated September 13, 2007, by and between Thomas J. Clarke, Jr.
and the Company, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q filed November 9,
2007.
|
|
+*10.11
|
Letter
Agreement dated October 24, 2008, by and between Thomas J. Clarke, Jr. and
the Company amending the Employment Agreement dated September 13, 2007,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q filed November 7, 2008.
|
|
+*10.12
|
Employment
Agreement dated June 30, 2008, by and between Eric Ashman and the Company,
incorporated by reference to the Exhibits to the Company’s Current Report
on Form 8-K filed June 30, 2008.
|
|
+*10.13
|
Employment
Agreement dated March 26, 2007, by and between Steven Elkes and the
Company, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed May 10, 2007.
|
|
+*10.14
|
Employment
Agreement dated August 23, 2007, by and between David Morrow and the
Company, incorporated by reference to the Exhibits to the Company’s
Quarterly Report on Form 10-Q filed November 9, 2007.
|
|
+*10.15
|
Employment
Agreement dated May 15, 2008, by and between Teresa Santos and the
Company, incorporated by reference to the Exhibits to the Company’s
Current Report on Form 8-K filed May 15, 2008.
|
|
*10.16
|
Membership
Interest Purchase Agreement dated August 2, 2007 by and among TP Newco
LLC, David Barnett, Gregg Alwine and Gregg Alwine as Agent, incorporated
by reference to the Exhibits to the Company’s Current Report on Form 8-K
filed August 8, 2007.
|
|
*10.17
|
Stock
Purchase Agreement dated November 1, 2007 by and among BFPC Newco LLC,
Larry Starkweather, Kyle Selberg, Rachelle Zorn, Robert Quinn and Larry
Starkweather as Agent, incorporated by reference to the Exhibits to the
Company’s Current Report on Form 8-K filed November 6,
2007.
|
|
*10.18
|
Securities
Purchase 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.
|
|
*10.19
|
Agreement
of Lease, dated July 22, 1999, between 14 Wall Street Holdings 1, LLC (as
successor to W12/14 Wall Acquisition Associates LLC), as Landlord, and the
Company, as Tenant, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q filed August 16,
1999.
|
|
*10.20
|
Amendment
of Lease dated October 31, 2001, between 14 Wall Street Holdings 1, LLC
(as successor to W12/14 Wall Acquisition Associates LLC), as Landlord, and
the Company, as Tenant, incorporated by reference to the Exhibits to the
Company’s Annual Report on Form 10-K filed March 16,
2005.
|
|
*10.21
|
Second
Amendment of Lease dated March 21, 2007, between 14 Wall Street Holdings
1, LLC as Landlord, and the Company, as Tenant, incorporated by reference
to the Exhibits to the Company’s Annual Report on Form 10-K filed March
12, 2008.
|
*10.22
|
Third
Amendment of Lease dated December 31, 2008, between CRP/Capstone 14W
Property Owner, L.L.C. as Landlord, and the Company, as Tenant,
incorporated by reference to the Exhibits to the Company’s Annual Report
on Form 10-K filed March 13, 2009.
|
|
+*10.23
|
|
Amendment
to Employment Agreement dated December 23, 2008 by and between James J.
Cramer and the Company, incorporated by reference to the Exhibits to the
Company’s Annual Report on Form 10-K/A filed February 8,
2010.
|
+*10.24
|
Separation
Agreement and Mutual Release between the Company and Thomas J. Clarke, Jr.
dated March 13, 2009, incorporated by reference to the Exhibits to the
Company’s Current Report on Form 8-K filed March 13,
2009.
|
|
+*10.25
|
Term
Sheet between the Company and Daryl Otte dated as of May 15, 2009,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.26
|
Agreement
for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan
dated as of June 9, 2009 between the Company and Daryl Otte, incorporated
by reference to the Exhibits to the Company’s Quarterly Report on Form
10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.27
|
Change
of Control and Severance Agreement dated as of June 9, 2009 between the
Company and Daryl Otte, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q for the Quarter Ended June 30,
2009, filed February 8, 2010.
|
|
+*10.28
|
Term
Sheet between the Company and Gregory Barton dated as of June 2, 2009,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.29
|
Notice
of Waiver dated April 2, 2009 by James J. Cramer under Employment
Agreement between the Company and James J. Cramer, incorporated by
reference to the Exhibits to the Company’s Quarterly Report on Form 10-Q
for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.30
|
Letter
agreement dated April 30, 2009 between the Company and Richard Broitman,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.31
|
Letter
agreement dated May 8, 2009 between the Company and Eric Ashman,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+10.32
|
Letter
agreement dated as of March 13, 2009 between the Company and
Daryl Otte.
|
|
+*10.33
|
Letter
agreement dated June 10, 2009 between the Company and Teresa Santos,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended June 30, 2009, filed February 8,
2010.
|
|
+*10.34
|
Form
of Agreement of Restricted Stock Units Under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q for the Quarter Ended
September 30, 2009, filed February 8, 2010.
|
|
+*10.35
|
Form
of Agreement of Grant of Cash Performance Award Under the Company’s 2007
Performance Incentive Plan, incorporated by reference to the Exhibits to
the Company’s Quarterly Report on Form 10-Q for the Quarter Ended
September 30, 2009, filed February 8, 2010.
|
|
+*10.36
|
Agreement
of Grant of Restricted Stock Units dated July 14, 2009 between Gregory
Barton and the Company, incorporated by reference to the Exhibits to the
Company’s Quarterly Report on Form 10-Q for the Quarter Ended September
30, 2009, filed February 8,
2010.
|
+*10.37
|
Severance
Agreement dated July 14, 2009 between Gregory Barton and the Company,
incorporated by reference to the Exhibits to the Company’s Quarterly
Report on Form 10-Q for the Quarter Ended September 30, 2009, filed
February 8, 2010.
|
|
+10.38
|
Form of Indemnification Agreement for directors and executive officers of the Company. | |
+10.39
|
Amendment
to 2007 Performance Incentive Plan, adopted by the Company November 20,
2009.
|
|
+10.40
|
Amendment
to Employment Agreement dated October 27, 2009 by and between James J.
Cramer and the Company.
|
|
*14.1
|
Code
of Business Conduct and Ethics, incorporated by reference to the Exhibits
to the Company’s Current Report on Form 8-K filed January 31,
2005.
|
|
21.1
|
Subsidiaries
of the Company
|
|
23.1
|
Consent
of KPMG LLP.
|
|
23.2
|
Consent
of Marcum LLP.
|
|
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
|