Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ýNo ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging“emerging growth company"company” in Rule 12b-2 of the Exchange Act. (Check one):
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| | | | |
| Large accelerated filer | ¨ | | Accelerated filer | ¨ |
| Non-accelerated filer | ý | | Smaller Reporting Company | ý |
| Emerging growth company | ¨ | | | |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨No ý
The aggregate market value of Common Stock held by non-affiliates of the Registrant as of June 28, 201930, 2020 was $3,382,281$1,526,052 which value, solely for the purposes of this calculation excludes shares held by Registrant'sRegistrant’s officers and directors. Such exclusion should not be deemed a determination by Registrant that all such individuals
are, in fact, affiliates of the Registrant. The number of shares of Common Stock issued and outstanding as ofMarch 17, 202031, 2021 was 5,919,295.
Documents Incorporated by Reference:
5,949,463.DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part III of Form 10-K will befollowing documents (or parts thereof) are incorporated by reference to certain portionsinto the following parts of a definitive proxy statement which is expected to be filed by the Company pursuant to Regulation 14A within 120 days after the close of its fiscal year.
this Form 10-K: None.FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
2019 ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
PART I
Item 1. Business
OVERVIEW
EXPLANATORY NOTE
On March 10, 2021, FalconStor Software, Inc. is, a technology company whose mission is to deliver technical innovation that creates investment protection, flexibility, and leverage of modern cloud-based technologies for our enterprise customers. We provide software and cloud services that enable our enterprise customers to better manage, protect, secure, and make use of their valuable data. Our customers achieve lower costs, simpler operations, greater data security, higher confidence in their business continuity, and greater ability to effectively use their data assets to drive innovation.
Our products are utilized by enterprises and managed service providers across the globe and address two key areas of enterprise data protection; long-term archive retention and reinstatement, and business continuity driven data replication. Our products are software-defined, which means that our technology allows our solutions to be hardware, cloud, and source-data agnostic, giving our customers maximum leverage of existing hardware and software investments. Our innovative integration into modern cloud-based technologies enables our customers to dramatically improve the portability, security, and accessibility of their enterprise data. This accessibility is key in our modern world, where data is not only protected, but also intelligently leveraged to facilitate learning, improve product design, and drive competitive advantage.
The enterprise data protection segments in which we focus our attention are critical to the data protection plans of any enterprise. First, the absolute foundation of any enterprise data protection plan is based on long-term data archive. Whether in the form of application databases, documents, emails, or digital media files, an enterprise is mandated to preserve these information assets for lengthy periods of time to fulfill operational, legal, and regulatory requirements. In fact, expanding government and industry regulations continue to increase mandated retention periods, which now exceed one hundred years in certain cases. In addition, beyond fundamental data retention, modern enterprises desire to leverage their long-term archives for strategic analysis and to unlock new revenue streams. As a result, enterprises must be confident they can securely and cost effectively archive their data, and efficiently access that archived data at any point in the future.
Second, in addition to their long-term data archive foundation, an enterprise frequently needs to maintain operational data redundancy for specific data assets to ensure near real-time business continuity. Our data replication products and associated technologies allow an enterprise to capture snapshots of selected data or entire systems at user-defined intervals and include the ability to replicate data continuously as it is written or modified in real-time. These solutions allow our enterprise customers to recover data back to a specific millisecond in time to completely recover from operational data loss or corruption, including ransomware. As with our long-term archive products, our business continuity driven data replication products are designed to leverage existing enterprise hardware and software investments, while seamlessly enabling the use of new cloud-based data storage technologies.
Our products are available and supported worldwide by a network of leading service providers, systems integrators, resellers, managed services providers, and OEMs.
INDUSTRY BACKGROUND
Enterprises of all sizes are increasingly challenged to securely archive and replicate their data assets. Their challenge continues to grow as new types of digital technologies generate vast amounts of data, as legal and regulatory compliance demands expand, as the number of operationally focused systems and applications deployed increase, and as an enterprise’s need to analyze more and more internal data in search of strategic and competitive advantage become commonplace. These continually expanding data capture and associated data protection use cases have and will continue to result in an explosion in the sheer volume of data an enterprise must effectively maintain.
Long-term data archive is the fastest-growing segment of an enterprise’s data assets. This growth is accelerating as enterprises are increasingly subject to complex regulatory compliance, such as that driven by the Food and Drug Administration (FDA), the Health Insurance Portability and Accountability Act (HIPAA), European Union’s General Data Protection Regulation (GDPR), and the Sarbanes-Oxley Act. As the volume of long-term archive continues to expand, the need for enterprises to securely and cost-effectively store the associated data will only increase.
Traditionally, enterprises have stored their long-term archives within physical tape libraries or on disc-based storage connected directly to internal servers. However, new distributed storage technologies, and public and private cloud-based environments, have created additional cost-effective and scalable options for archive storage. Early adoption of these new storage options has been
measured, especially within larger enterprises, as they contemplate security concerns, attempt to optimize existing hardware and data center investments and add the required internal technical experience required to confidently utilize the new technologies and cloud-based environments.
We fundamentally believe that data protection software and solutions, like FalconStor’s, that help enterprises to securely, seamlessly, and cost-effectively optimize their long-term archive storage by providing a bridge to newly available options will be critical to the broader adoption of these new storage environments.
The introduction of new long-term archive storage options has also given rise to a growth in managed service providers (MSPs) remotely managing data protection, primarily to smaller enterprises with a less complex array of data assets. The MSPs are able to leverage modern broadband connectivity and offer more scalable long-term storage options, which will serve to reduce data protection costs for their customers. We believe this trend to outsourced long-term archive data protection will continue.
OUR SOFTWARE PRODUCTS AND SUPPORTING TECHNOLOGY
FalconStor’s software products create investment protection, flexibility, and leverage of modern cloud-based technologies, through software-defined functionality that provides long-term archive retention and reinstatement, and business continuity driven data replication. As a result, our enterprise clients are able to utilize the underlying storage hardware, media, or environment (on-premise or cloud) that best aligns with their strategic needs. Our customers utilize our products to protect data residing in physical, virtual, public-cloud, private-cloud, and multi-cloud environments, and give our them the freedom to optimize their data protection infrastructure and eliminate costly hardware-vendor, cloud, and form-factor lock-in.
Long-Term Archive Retention and Reinstatement Products
FalconStor Virtual Tape Library (“VTL”) - FalconStor introducedDelaware corporation, filed its Virtual Tape Library product in the early 2000s and was one of the first software providers to introduce this innovative solution, allowing enterprise customers to emulate and replace cumbersome legacy physical tape libraries for archive related data preservation, without being forced to replace their enterprise backup and archive software and associated processes.
Our VTL product continues to be a leading virtual tape library solution, and we believe it is unmatched in terms of performance and scalability. With VTL, our enterprise customers are able to complete their data archive operations more reliably, with minimal change needed to the legacy archive environment. They are also able to leverage sophisticated physical tape emulation, advanced data security, data-deduplication, and public- or private-cloud based virtual tape archive storage, which are all now seamlessly integrated into our solution. We are dedicated to providing our enterprise customers with the highest performing VTL product in the industry. As such, we subject our VTL solution to independent performance testing, which has demonstrated that our product is 25% faster than the closest competitor and can be executed on hardware that is 1/3 the cost of that required by our closest competitor.
Beyond allowing our customers to benefit from sheer data archive speed, we also enable them to dramatically reduce the amount of data that needs to be archived, by processing their archive data through our integrated data deduplication engine. By eliminating redundant archive data, the archive storage capacity required can be reduced by as much as 95%. Our technology allows our enterprise customers to significantly reduce the cost of storing the ever-growing volume of data subject to long-term archive data protection mandates.
FalconStor StorSafeTM (“StorSafe”) - Traditionally, enterprises have had limited choice and have been forced to store their archive data on physical tape or within storage arrays installed in an internal data center. Our newest and most innovative long-term archive data management software product, StorSafe, breaks these traditional storage limitations and enables enterprises to securely and cost effectively leverage a wide array of storage options, including ultra efficient and scalable cloud-based storage environments.
With general availability scheduled for 2020, StorSafe, like our proven VTL solution, provides sophisticated physical tape emulation and seamless integration with an enterprise’s legacy backup and archive software and processes. In addition, StorSafe includes our advanced data deduplication technology. However, StorSafe takes long-term archive storage optimization to an entirely new and innovative level. By leveraging patent pending industry-standard Container technology to enable persistent long-term archive storage, our StorSafe solution dramatically improves archive data portability, accessibility, security, and integrity validation, especially as it relates to multi-cloud data storage leverage. As a result, a full spectrum of archive data storage options is made
available to our enterprise customers to efficiently utilize essentially any storage environment, while confidently ensuring data security and efficient archive access.
We have designed StorSafe to significantly reduce long-term archive data storage and legal or regulatory mandated compliance costs and redefine long-term archive storage optimization and accessibility for the next decade.
Business Continuity Driven Data Replication Products
FalconStor Continuous Data Protector (“CDP”)
In addition to retaining long-term archive data, enterprises routinely maintain short-term copies, or backups, of data generated by various user applications, to protect against data loss or natural disaster. FalconStor CDP technology reinvents the way data replication and recovery are implemented and performed. Moving beyond once-a-day backup models, CDP combines local and remote protection into a cost-effective, unified, disk-based solution that allows organizations to recover data back to the most recent transaction. Combining application-aware snapshot agents and continuous journaling functions, CDP enables customers to recover data effectively at any point in time. CDP delivers instant data availability and reliable recovery, bringing business applications back online in a matter of minutes after a failure. CDP protects application-specific data for Microsoft, Oracle, SAP, and other business applications, ensuring high performance and stability for even the most complex business environments.
FalconStor Network Storage Server (“NSS”)
The ever expanding capacity of data managed by enterprises creates a continual challenge in ensuring the organization has an adequate amount of available storage. FalconStor NSS is a scalable, highly available solution that enables data storage virtualization and business continuity in heterogeneous environments. Supporting existing third-party disk arrays, NSS eliminates storage boundaries and vendor lock-in, providing fast and secure data storage provisioning and migration. From a small iSCSI virtual server lab to an enterprise-class Fiber Channel SAN running Tier-1 database applications, NSS is designed to meet the data storage needs of any enterprise.
Moving data between different data storage platforms can be complex, complicated, time-consuming, and disruptive to business operations. Our core storage virtualization technology provides a non-disruptive approach to data mobility across different SAN protocols and vendors. With NSS, it becomes a simple operation to move data from older platforms to newer ones or to introduce new storage capacity and tiers. This allows enterprises to respond to evolving performance and capacity requirements, as well as changing data protection mandates.
Our products are sold as stand-alone software, but can also be bundled with standard hardware configurations to simplify implementation for our customers.
Supporting Technology
Our core long-term archive and business continuity driven products are complemented by a set of underlying technologies that streamline usability and overall solution performance.
FalconStor StorSightTM (“StorSight”)
StorSight gives our enterprise customers and MSPs the ability to administer long-term archive and business continuity driven data replication from one centralized management point and to easily test additional FalconStor products they may not be currently licensing. Prior to Q4 2019, our products were managed through two different user consoles; a Java-based console for VTL, and a modern HTML-based console (branded initially as FreeStorTM) for CDP and NSS. To simplify our development efforts and to enable broader use of our products by our enterprise customers, we have unified all user management into our modern HTML-based console and rebranded that unified tool as StorSight. As a result, StorSight is now our unified data protection console used to administer our VTL, StorSafe, CDP, and NSS products.
Our StorSight user console provides deep analytics relative to each FalconStor product as they are utilized in production. StorSight also includes a full array of functionality key to our MSP customers, such as multi-tenancy and charge-back.
StorSight usage licensing is included when customers and MSPs license any FalconStor product.
FalconStor RecoverTracTM (“RecoverTrac”) Disaster Recovery Technology
Our patented RecoverTrac technology streamlines the implementation, testing, and execution of disaster recovery operations. It minimizes service failover time between sites and reduces disaster recovery costs by offering full recovery from physical-to-physical, virtual-to-virtual, and physical-to-virtual server infrastructures. This technology is a disaster recovery automation service, and is included as a standard feature of the FalconStor NSS and the FalconStor CDP products to automate complex, time-consuming, and error-prone failover and failback operations of systems, applications, services, and entire data centers. This technology can also work across those environments, enabling organizations to seamlessly migrate locally, remotely, or to and from cloud environments.
FalconStor MicroScanTM (“MicroScan”) Technology
The patented FalconStor MicroScan technology minimizes the amount of data transferred during replication by eliminating inefficiencies at the application and file system layer. Data changes are replicated at the smallest possible level of granularity, reducing LAN/WAN bandwidth and associated storage costs for disaster recovery (DR), and any time data is replicated from one source to another. Typical storage array-based solutions replicate changes track-by-track. This means that even when the smallest possible data change is made (512 bytes or one disk sector), the file system will write 8K of data, and the array will send the entire track (typically 32KB in size) or four times more than the file system change. In contrast, if MicroScan scans 8K of “new” data and concludes that only 512 bytes (1 disk sector) have truly changed. Only the 512-byte change is sent over the LAN/WAN network, making it 64 times more efficient than sending the full track. As a result, for every one terabyte needing to be sent over the network, FalconStor CDP or FalconStor NSS only needs to send 16 gigabytes. MicroScan is an integral part of the FalconStor replication option for CDP and NSS.
BUSINESS STRATEGY
FalconStor‘s products and supporting technologies serve enterprise IT organizations and managed service providers worldwide and are guided by the following strategies.
Modernize Existing Enterprise Storage Environments While Protecting Investments
As enterprise IT organizations look to modernize their long-term archive and business continuity related data replication, they are challenged by the cost, risk, and disruption upgrades and migrations can cause. Because FalconStor abstracts the data protection services from the physical storage infrastructure, additional capabilities can be added to legacy hardware, eliminating the need and cost to replace that hardware. This delivers discrete value in terms of lowering capital and operational costs, reduced risk and disruption, and significantly faster time to deployment. For IT organizations wishing to deploy new hardware or storage paradigms, including the utilization of private- or public-cloud based storage, our products enable the migration and on-going optimization of data storage to and on those new platforms, versus being forced to start with a new or “greenfield” deployment required by many of the latest hardware vendors. FalconStor offers these organizations a path forward with an approach that minimizes or eliminates risk and disruption to business processes and workflows while lowering both capital and operational costs.
FalconStor intends to continue leveraging the protocol-independent, full featured, unified architecture, analytics, and robust open data services technology of its products to maintain a leadership position in the enterprise storage software market. With the addition of StorSafe, and its associated storage container technology, FalconStor has joined and is dedicated to the Open Source community, which has accelerated development and integration efforts across our entire product suite. FalconStor plans to continue its leadership in this market by delivering technical innovation that creates investment protection, flexibility, and leverage of modern cloud-based technologies for our enterprise customers.
Enable Managed Service Providers
As the managed service provider segment continues to grow, they increasingly have a need to support heterogeneous storage environments across their own data centers and their customer’s environments. Further, MSPs often have different hardware and software capabilities, making it significantly challenging to offer consistent data services across these environments. We believe FalconStor offers several strategic benefits for MSPs:
•Enables the seamless and non-disruptive movement of data from the customer premise to the service provider’s hosted environment;
•Offers common data services across customer’s environments regardless of underlying hardware or technology;
•Allows for the introduction and ability to monetize additional data services they may not have previously been able to offer;
•Provides a low-cost growth opportunity due to the flexibility of StorSight licensing, while eliminating the need to have multiple feature licenses array by array;
•Enables reduced storage management complexity and costs within their infrastructure by eliminating silos, reducing licensing costs and optimizing hardware;
•Optimizes storage hardware based on price/performance needs of customers; and
•Provides analytics for necessary real-time and historical information to achieve SLA's and make economic decisions.
Expand Software and Hardware Strategic Alliances with Industry Leaders
The Flash/SSD, High-Density Shingle Disk, and Cloud Data Archival markets should be key opportunities for us on two fronts: targeting customers wanting to integrate new Flash/SSD, High-Density Shingle Disk, Cloud Data Archival technology into existing IT environments, and OEMs needing to enhance their software stack in order to offer data movement and protection services on their platform. Cloud Service Providers (CSPs) such as AWS, Azure, Wasabi, and Aliyun also represent a growth opportunity. Our mutual customers and partners need help moving data from the customer site to their own facilities as well as a way to deliver common data services across disparate and often incompatible hardware typically found across the provider and end customer environments. We believe FalconStor is positioned to continue to take advantage of these key opportunities in the global marketplace. Our strategic relationships with Hitachi Data Systems, Hitachi Vantara, Fujitsu, DSI, and others should fuel growth across all three major geographies.
Expanded Existing Product Offerings
We will continue to enhance our products to address the ever-changing market dynamics to ensure that FalconStor continues to be a leader in the data protection marketplace.
StorSafe is the newest innovation from FalconStor. It leverages the latest industry-standard software container technology that utilizes virtualization at the application layer versus the systems layer. This powerful differentiator allows StorSafe, the first enterprise-class, persistent storage container, to disaggregate data storage from the system-level components. With FalconStor's successful adaptation of transient container technology, it delivers a persistent, long-term data protection container that is agnostic, heterogeneous, and highly portable, as well as backward compatible and compatible with future technology advancements. It also delivers the capability to seamlessly operate across data centers, and public, private, hybrid, and multi-cloud data storage environment(s). Leveraging the power of container technologies has also allowed the development of robust active and passive features and functionality that are necessary to meet integrity, validation, and journal-based auditing. These advancements are essential to meet the chain of custody mandates that are inherent in long-term data retention plans subject to compliance, regulatory, legal discovery, and privacy laws that continue to evolve and mature.
Market Approach
FalconStor continues to focus on enterprise customers, managed service providers, cloud service providers, as well as OEM partners. These markets offer the most significant opportunity and are best suited to realize the value of FalconStor products, and provide an efficient and effective access to broad, worldwide markets.
Growth Drivers
New regulations and laws governing the processing, storage, retention, protection, and reinstatement of high-value information assets are driving double-digit growth in the data protection markets. Additionally, we believe that data archives will play an increasing role in training and validating AI and Machine Learning algorithms and optimizing strategic analytic model outcomes. Given FalconStor's long history and deep skillset of the unique challenges associated with long-term storage, we feel we are in an excellent position to capitalize on data assets that are subject to new protection requirements with our existing product portfolio. Our innovative StorSafe product is designed and architected to leverage the scale-up and scale-out capabilities found in today's public and private clouds to support the expanding long-term data protection market demand that is estimated to grow into the Zettabyte (10^21) range by 2030 (IDC). In addition, we believe our innovative integration of long-term archive storage into modern cloud-based technologies will enable our customers to dramatically improve the portability, security, and accessibility of their enterprise data. We believe, this accessibility will be key in our modern world, where data is not only protected, but also intelligently leveraged to facilitate learning, improve product design, and drive competitive advantage.
SALES ROUTES TO MARKET
FalconStor continues to sell products through:
•Authorized partners, value-added resellers (VARs), solution providers, and large system integrators
•Direct Market Resellers (DMRs) and Distributors
•Managed Service Providers (MSPs) and Cloud Service Providers (CSPs)
•Original Equipment Manufacturers (OEMs)
Professional Services
FalconStor’s Professional Services personnel are also available to assist customers and partners throughout the lifecycle of FalconStor product deployments. The Professional Services team includes experienced Storage Architects (expert field engineers) who can assist in the assessment, planning/design, implementation, and test phases of the deployment project, and a Technical Support Group for post-deployment assistance and ongoing support.
MARKETING
We focus our efforts to increase awareness and demand for FalconStor products by targeting our efforts at our extensive global installed base and the expanding awareness in the emerging long-term data protection market.
PRODUCT LICENSING
Historically, the majority of our software licenses have been sold on a per terabyte capacity basis and have included a perpetual right to use the licensed capacity. Over the last several years, we have also offered our capacity-based licenses on a subscription or term-based model, which gives a customer the right to utilize the licensed terabyte capacity over a designated period of time. We expect revenue from subscription-based per terabyte licensing to increase over the next several years.
COMPETITION
Long-Term Archive Retention and Reinstatement
We believe our VTL and StorSafe products are positioned well in the marketplace. Given the fact that these products are designed to integrate with an enterprise’s legacy backup and archive software and processes, the level of competition we typically face is limited to DellEMC’s Data Domain virtual tape library product.
One could argue that we also compete with legacy backup and archive vendors such as Veritas, and Commvault; however, in practice, our products are more complimentary to their solutions than competitive, as our solutions do not require their solutions to be retired or replaced. In fact, our enterprise customers view the ability to maintain their legacy software solutions and processes as a key differentiator for selecting FalconStor, as it is common for them to use backup and archive products from multiple vendors. By inserting our VTL or StorSafe product, they are able to aggregate all of their archive data easily and control global data deduplication and archive storage from one central point.
Our enterprise customers also view the fact that our VTL and StorSafe products operate effectively with Windows, Linux, and IBM i operating system (OS) environments as a key differentiator. As a result, we execute specific go-to-market efforts to identify enterprise customers that have multiple OS environments in production.
Beyond the differentiation our VTL and StorSafe products provide related to existing infrastructure integration, we also believe the innovations we are delivering to improve long-term archive retention and reinstatement dramatically, will serve as important competitive differentiators for FalconStor over the next several years. This belief is founded on the fact that our new innovations are designed to significantly improve archive data portability, security, and integrity validation. In addition, our new innovations are designed to allow our enterprise customers to seamlessly leverage multiple private- or public-clouds at one time to significantly reduce archive data storage costs.
Business Continuity Driven Data Replication
Competition within the business continuity driven data replication space is significant and includes products from Veeam, Rubrik, Cohesity, Commvault, Veritas, DellEMC, DataCore, and others. As a result, it is imperative that we carefully select the
areas in which we will compete to ensure they are aligned with our key product differentiations. As a result, our two areas of focus within this space are on-premise storage virtualization and granular application-aware data replication snapshots that enable our enterprise customers to recover data back to a specific millisecond in time for near real-time recovery time objectives (RTO).
INTELLECTUAL PROPERTY
FalconStor’s success is dependent in part upon its proprietary technology. We currently have thirty three patents and numerous pending patent applications. The Company has multiple registered trademarks - including “FalconStor Software”, “StorSight”, “StorSafe”, and “Intelligent Abstraction” - as well as pending trademark applications related to FalconStor and its products.
FalconStor seeks to protect its proprietary rights and other intellectual property through a combination of copyright, patents, trademark, and trade secret protection, as well as through contractual protections such as proprietary information agreements and nondisclosure agreements. The technological and creative skills of its personnel, new product developments, frequent product enhancements, and reliable product maintenance are essential to establishing and maintaining a technology leadership.
FalconStor generally enters into confidentiality or license agreements with employees, consultants, and corporate partners and generally controls access to and distribution of its software, documentation, and other proprietary information. Despite the Company’s efforts to protect its proprietary rights, unauthorized parties may attempt to copy or otherwise obtain and use FalconStor’s products or technology. Monitoring unauthorized use of FalconStor’s products is difficult, and there can be no assurance that the steps FalconStor has taken will prevent misappropriation of its technology, particularly in foreign countries where laws may not protect its proprietary rights as fully as do the laws of the United States.
MAJOR CUSTOMERS
For the year ended December 31, 2019, we had two customers that accounted for 10% or more of total revenue. For the year ended December 31, 2018, we had no customers that accounted for 10% or more of total revenue.
As of December 31, 2019 and 2018, one customer accounted for more than 10% of our gross accounts receivable balance.
EMPLOYEES
As of December 31, 2019, we had 71 full-time and part-time employees, consisting of 23 in research & development, 14 in sales & marketing, 20 in service, and 14 in general and administrative. We are not subject to any collective bargaining agreements and we believe that our employee relations are good.
INTERNET ADDRESS AND AVAILABILTY OF FILINGS
Our internet address is www.falconstor.com. The Company makes available free of charge, on or through its Internet website, the Company’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, current Reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Sections 13(a) or (15)(d) of the Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after the Company electronically files such material with, or furnishes it to, the Securities and Exchange Commission. The Company complied with this policy for every Exchange Act (the "Exchange Act"), report filed during the year ended December 31, 2019.
RECENT DEVELOPMENTS
On December 27, 2019, we entered into Amendment No. 1 to the Amended and Restated Term Loan Credit Agreement (the “Amendment”), by and among the Company, certain of the Company’s affiliates in their capacities as guarantors, HCP-FVA, LLC (“HCP-FVA”) as administrative agent for the lenders party thereto (the “Lenders”), ESW Capital, LLC (“ESW”), as co-agent, and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company (the “2019 Term Loan” and together with the amended term loan under the Amended and Restated Term Loan Credit Agreement, collectively, the "Term Notes"). The Amendment also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced.
In connection with the initial advance of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded $378,439 and Michael Kelly funded $1,561. HCP-FVA is an affiliate of Hale Capital Partners, LP, the Company’s largest stockholder, and an
affiliate of a director of the Company, Martin Hale. ESW is a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
Item 1A. Risk Factors
We are affected by risks specific to us as well as factors that affect all businesses operating in a global market. The significant factors known to us that could materially adversely affect our business, financial condition, or operating results are set forth below.
Risks Related to Our Financial Condition
We have had limited liquidity as evidenced by our working capital deficiency of $3.8 million at December 31, 2019 and our future prospects are dependent on our ability to execute our business plan of which there can be no assurance.
We have incurred operating losses in ten of the previous eleven years and negative cash flow from operations in eight of the previous eleven years. To ensure that we could continue as a going concern in 2018, we consummated a private placement of units to certain eligible stockholders (the “Financing”) whereby we received aggregate gross proceeds of $4,000,000 and additional proceeds through the exercise of warrants issued as part of the Financing. In connection with the Financing, Hale Capital agreed to postpone the date that an optional redemption of the Series A Preferred Stock could be requested from August 5, 2017 to July 30, 2021, and waived prior breaches of the terms of the Series A Preferred Stock which had also triggered a redemption right.
As of December 31, 2019, we had a working capital deficiency of $3.8 million, which is inclusive of current deferred revenue of $5.3 million, and a stockholders' deficit of $14.0 million. During the year ended December 31, 2019, we had a net loss of $1.8 million and negative cash flow from operations of $1.9 million. Our cash and cash equivalents at December 31, 2019 was $1.5 million, a decrease of $1.6 million compared to December 31, 2018 and such amount at December 31, 2019 includes net proceeds that we received from our previously announced Amendment, which provided for the 2019 Term Loan.
During 2019, we continued to focus on aligning our expense structure with revenue expectations which included tighter expense controls and overall operational efficiencies which better align our current business plan on a run-rate basis. These efficiencies include streamlined personnel related costs and global overhead costs and efficiencies realized on our redesigned go-to-market coverage models. However, the decline in revenue combined with the separation costs related to the headcount reductions have reduced the impact of these reductions in operating expenses and the reduction in our cash burn rate resulting from these reductions was lower than our expectations. Accordingly, our operating cash requirements have been higher than what we expected. While the Financing, the postponement of the date of the optional redemption and the 2019 Term Loan have facilitated our ability to meet our operating cash needs and continue as a going concern, our ability to continue as a going concern ultimately depends on whether we execute our business plan.
If the holders of the Series A Preferred Stock elect to exercise their rights to require the Company to redeem the Series A Preferred Stock on or prior to July 30, 2021 or we are unable to satisfy our obligations under our 2019 Term Loan, we will be unable to meet our operating cash needs. All of these factors raise a substantial doubt that we will continue as a going concern.
There is no assurance that we will be successful in executing our business plan either through generating sufficient revenue or continuing to reduce operating costs. The failure to execute our business plan would have a material adverse effect on our results of operations. In addition, to the extent that we continue to incur losses or want to expand our operations, we may need to seek additional financing. There can be no assurance that we will be able to obtain additional financing. Moreover, it is likely that the terms of the Amended and Restated Loan Agreement and Series A Preferred Stock will make it more difficult for us to obtain additional financing and any additional financing could be dilutive to our stockholders.
We have had a history of losses since 2008 and our revenues decreased in 2019 compared to 2018. There is no guarantee that we will be able or to maintain, profitability.
For the fiscal year ended December 31, 2019, we had a net loss of approximately $1.8 million, and our revenues decreased to $16.5 million for the year ended December 31, 2019, as compared with $17.8 million for the year ended December 31, 2018. If we are unable to stabilize or increase revenue, we will be unable to maintain profitability, we will deplete our available cash and we may not be able to continue to fund effective sales and marketing or research and development activities on which we are dependent.
We have undertaken a restructuring and other cost reduction initiatives to reduce our expenses and to better align our expenses with our business. There can be no assurance that we have made enough reductions or the right reductions.
For the past several years, we have taken several actions to reduce expenses significantly in an attempt to help return the Company to profitability. These actions include a reduction in personnel; closing offices in geographic locations where our expenses have continued to outpace our revenue; and reducing other expenditures. To date, the reduction in expenses has not been sufficient to ensure that the Company can meet its ongoing cash needs for the foreseeable future. In addition, there can be no assurance that the reductions we have made are the right reductions for our business going forward. There is a risk that the restructuring, cost cutting initiatives and reduction in personnel will continue to make it more difficult to grow the business and service our customers.
If actual results or events differ materially from our estimates and assumptions, our reported financial condition and results of operations for future periods could be materially affected.
The preparation of consolidated financial statements and related disclosure in accordance with generally accepted accounting principles requires management to establish policies that contain estimates and assumptions that affect the amounts reported in the consolidated financial statements and the accompanying notes. Note 1 to the Consolidated Financial Statements in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 describes2020 (the “Original Filing”). Certain Part III information was omitted from the significant accounting policies and estimates essentialOriginal Filing in reliance on General Instruction G(3) to preparing our financial statements. The preparationForm 10-K. General Instruction G(3) to Form 10-K provides that a registrant may incorporate by reference certain information from a definitive proxy statement which involves the election of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosures. We base our estimates on historical experience and assumptions that we believe to be reasonable under the circumstances. Actual future results may differ materially from these estimates. We evaluate, on an ongoing basis, our estimates and assumptions.
Risks Related to Our Business
Our future business, financial and operating results are substantially dependent on the market acceptance of our products.
We have spent considerable resources, both financially and in our research and development efforts, developing CDP, NSS, VTL, FDS and FDMP. Bookings for VTL during the year ended December 31, 2019 exceeded the bookings for this product for the year ended December 31, 2018. However, the bookings associated with VTL failed to make up for declines in our other product lines. We currently do not have any other products in our pipelinedirectors, if such definitive proxy statement is filed with the same expectations that we hadSecurities and Exchange Commission (the “Commission”) no later than 120 days after the end of the registrant’s fiscal year. Alternatively, the registrant may provide this information in an amendment to the Form 10-K, if such amendment is filed with the Commission no later than 120 days after the end of the registrant’s fiscal year. Accordingly, this Amendment No. 1 on Form 10-K/A (this “Amendment”) supplements the Original Filing by amending and restating Part III, Items 10 through 14 of the Original Filing.Except as stated herein, this Amendment does not reflect events occurring after the filing of the Original Filing, and no attempt has been made in this Amendment to modify or which we believe have the same potential for market acceptanceupdate other disclosures as CDP, NSS, VTL, FDS and FDMP. If (i) either CDP, NSS, VTL, FDS or FDMP do not gain additional market acceptance, (ii) sales of either CDP, NSS, VTL, FDS or FDMP do not increase, or (iii) the ongoing future feature/functionality sets of both products are delayed, our results may suffer and it could have a material adverse effect on our business, financial condition and operating results.
The loss of any of our key personnel could harm our business.
Our success depends upon the continued contributions of our key employees, many of whom would be extremely difficult to replace. We do not have key person life insurance on any of our personnel. Worldwide competition for skilled employeespresented in the
network storage software industry is extremely intense. In particular, our success is dependent on our executive management team, including Todd Brooks, our PresidentOriginal Filing.Throughout this Amendment, unless indicated otherwise, we refer to FalconStor Software, Inc. and Chief Executive Officer. If we are unable to retain existing employees or hireits subsidiaries as “we,” “us,” “our,” “FalconStor,” “FalconStor Software” and integrate new employees, our business, financial condition and operating results could suffer.the “Company”.
Due to the uncertain and shifting developmentPART III
| Item 10. | Directors, Executive Officers and Corporate Governance |
Directors of the data protectionCompany
The Company’s bylaws authorize the Board of Directors (or the “Board”) to fix the number of directors and network storage software markets and our reliance on our partners, we may have difficulty accurately predicting revenue for future periods and appropriately budgeting for expenses.
The rapidly evolving nature ofprovide that the data protection and network storage software markets in which we sell our products, the degrees of effort and success of our partners’ sales and marketing efforts, and other factors that are beyond our control, reduce our ability to accurately forecast our quarterly and annual revenue. However, we must use our forecasted revenue to establish our expense budget. Most of our expenses are fixed in the short term or incurred in advance of anticipated revenue. As a result, we may notdirectors shall be able to decrease our expenses in a timely manner to offset any shortfall in revenue.
If we are unable to develop and manufacture new products that achieve acceptance in the data protection and the network storage software markets, our operating results may suffer.
The data protection and the network storage software markets continue to evolve and as a result there is continuing demand for new products. Accordingly, we may need to develop and manufacture new products that address additional data protection or network storage software market segments and emerging technologies to remain competitive in the data storage software industry.
We are uncertain whether we will successfully qualify new data protection or network storage software products with our customers by meeting customer performance and quality specifications. Any failure to address additional market segments could harm our business, financial condition and operating results.
Our products must conform to industry standards in order to be accepted by customers in our markets.
Our current products are only one part of a storage system. All components of these systems must complydivided into three classes, with the same industry standards in order to operate together efficiently. We depend on companies that provide other componentsclasses of these systems to conform to industry standards. Some industry standards may not be widely adopted or implemented uniformly, and competing standards may emerge that may be preferred by OEM customers or end users. If other providers of components do not support the same industry standards as we do, or if competing standards emerge, our products may not achieve market acceptance, which would adversely affect our business.
Our products handle mission-critical datadirectors serving for our end-customers and are highly technical in nature. If our products have defects, failures occur or end-customer data is lost or corrupted, our reputation and business could be harmed.
Our products are highly technical and complex and are involved in storing and replicating mission-critical data for our end-customers. Our products may contain undetected defects and failures when they are first introduced or as new versions are released. We have in the past and may in the future discover software errors in new versions of our existing products, new products or product enhancements after their release or introduction, which could result in lost revenue. Despite testing by us and by current and potential end-customers, errors might not be found in new releases or products until after commencement of commercial shipments, resulting in loss of or delay in market acceptance. Our products may have security vulnerabilities and be subject to intentional attacks by viruses that seek to take advantage of these bugs, errors or other weaknesses. If defects or failures occur in our products, a number of negative effects in our business could result, including:
lost revenue or lost end-customers;
increased costs, including warranty expense and costs associated with end-customer support;
delays, cancellations, reductions or rescheduling of orders or shipments;
product returns or discounts;
diversion of management resources;
legal claims for breach of contract, product liability, tort or breach of warranty; and
damage to our reputation and brand.
Because our end-customers use our products to manage and protect their data, we could face claims resulting from any loss or corruption of our end-customers’ data due to a product defect. While our sales contracts contain provisions relating to warranty disclaimers and liability limitations, these provisions might not be upheld. Defending a lawsuit, regardless of its merit, is costly and may divert management’s attention from our business and could result in public perception that our products are not effective, even if the occurrence is unrelated to the use of our products. In addition, our business liability insurance coverage might not be adequate to cover such claims. If any data is lost or corrupted in connection with the use or support of our products, our reputation could be harmed and market acceptance of our products could suffer.
We rely on our resellers and our OEM partners for most of our sales.
The vast majority of our sales come from sales to end users of our products by our resellers and by our OEM partners. These resellers and OEM partners have limited resources and sales forces and sell many different products, both in the data protection and the network storage software markets and in other markets. The resellers and OEM partners may choose to focus their sales efforts on other products in the data protection and the network storage software markets or other markets. The OEM partners might also choose not to continue to develop or to market products which include our products. This would likely result in lower revenue to us and would impede our ability to grow our business.
The failure of our resellers to sell our products effectively could have a material adverse effect on our revenue and results of operations.
We rely significantly on our value-added resellers, direct market resellers, systems integrators and corporate resellers, which we collectively refer to as resellers, for the marketing and distribution of our software products and our services. However, our agreements with resellers are generally not exclusive, are generally renewable annually and in many cases may be terminated by either party without cause. Many of our resellers carry products that are competitive with ours. These resellers may give a higher priority to other products, including those of our competitors, or may not continue to carry our products at all. If a number of resellers were to discontinue or reduce the sales of our products, or were to promote our competitors’ products in lieu of ours, it
would have a material adverse effect on our future revenue. Events or occurrences of this nature could seriously harm our sales and results of operations. In addition, we expect that a significant portion of our sales growth will depend upon our ability to identify and attract new reseller partners. The use of resellers is an integral part of our distribution network. We believe that our competitors also use reseller arrangements. Our competitors may be more successful in attracting reseller partners and could enter into exclusive relationships with resellers that make it difficult to expand our reseller network. Any failure on our part to expand our network of resellers could impair our ability to grow revenue in the future.
Our growth depends in part on the success of our strategic relationships with third parties.
Our future growth will depend on our ability to enter into successful strategic relationships with third parties. For example, our strategic relationships with DSI, Fujitsu, Hitachi Data Systems, Huawei and X-IO are intended for the Flash/SSD market targeting customers wanting to integrate new Flash/SSD technology into existing IT environments and OEMs needing to enhance their software stack in order to offer data movement and protection services on their platform. In addition, we work with global distributors to streamline and grow our sales channel. These relationships may not result in additional customers or enable us to generate significant revenue. These relationships are typically non-exclusive and do not prohibit the other party from working with our competitors or from offering competing services. If we are unsuccessful in establishing or maintaining our relationships with these third parties, our ability to compete in the marketplace or to grow our revenue could be impaired and our operating results could suffer.
We rely on channel partners to sell our solutions, and disruptions to, or our failure to develop and manage our channel partners would harm our business.
Our future success is partially dependent upon establishing and maintaining successful relationships with the right channel partners. A majority of our revenue is generated by sales through our channel partners, and we expect channel sales to continue to make up the majority of our total revenue in the future. Accordingly, our revenue is largely dependent on the effective sales and lead generation activities of these channel partners.
Recruiting and retaining qualified channel partners and training them in our technology and product offerings requires significant time and resources. In order to develop and expand our distribution channel, we must continue to scale and improve our processes and procedures that support our channel, including investment in systems and training. Those processes and procedures may become increasingly complex and difficult to manage as we grow our organization. We have no minimum purchase commitments from any of our channel partners, and our contracts with these channel partners do not prohibit them from offering products or services that compete with ours. Our competitors may provide incentives to existing and potential channel partners to favor their products or to prevent or reduce sales of our solutions. Our channel partners may choose not to offer our solutions exclusively or at all. Establishing relationships with channel partners who have a history of selling our competitors’ products may also prove to be difficult. In addition, some of our channel partners are also competitors. Our failure to establish and maintain successful relationships with channel partners would harm our business and operating results.
We face intense competition in our market, especially from larger, well-established companies, and we may lack sufficient financial or other resources to maintain or improve our competitive position.
A number of very large corporations have historically dominated the data management market. We consider our primary competitors to be companies that provide enterprise storage products, including Dell Inc., Hitachi Data Systems, Hewlett-Packard Company, IBM, CommVault, DataCore and Nexenta. We also compete to a lesser extent with a number of other private companies and certain other well-established companies. Some of our competitors have made acquisitions of businesses that allow them to offer more directly competitive and comprehensive solutions than they had previously offered. In addition, the emergence of cloud computing and software-defined-storage may impact both short-term and long-term growth patterns in the markets in which we compete. We expect to encounter new competitors domestically and internationally as other companies enter our market or if we enter new markets.
Many of our existing competitors have, and some of our potential competitors could have, substantial competitive advantages such as:
potential for broader market acceptance of their storage architectures and solutions;
greater name recognition and longer operating histories;
larger sales and marketing and customer support budgets and resources;
broader distribution and established relationships with distribution partners and end-customers;
the ability to bundle storage products with other technology products and services, or offer a broader range of storage solutions to better fit certain customers’ needs;
lower labor and development costs;
larger and more mature intellectual property portfolios;
substantially greater financial, technical and other resources; and
greater resources to make acquisitions.
Our ability to sell our products is highly dependent on the quality of our services offerings, and our failure to offer high quality support and professional services would have a material adverse effect on our sales of our products and results of operations.
Our services include the assessment and design of solutions to meet our customers’ data protection and storage management requirements and the efficient installation and deployment of our products based on specified business objectives. Further, once our products are deployed, our customers depend on us to resolve issues relating to our products. A high level of service is critical for the successful marketing and sale of our software. If our partners or we do not effectively install or deploy our applications, or succeed in helping our customers quickly resolve post-deployment issues, it would adversely affect our ability to sell software products to existing customers and could harm our reputation with potential customers. As a result, our failure to maintain high quality support and professional services would have a material adverse effect on our sales of our products and results of operations.
Failure to achieve anticipated growth could harm our business and operating results.
Achieving our anticipated growth will depend on a number of factors, some of which include:
retention of key management, marketing and technical personnel;
our ability to increase our customer base and to increase the sales of our products; and
competitive conditions in the network storage infrastructure software market.
We cannot assure you that the anticipated growth will be achieved. The failure to achieve anticipated growth could harm our business, financial condition and operating results.
Adverse economic conditions or reduced IT spending may adversely impact our business.
Our business depends on the overall demand for IT and on the economic health of our current and prospective customers. In general, worldwide economic conditions remain unstable, and these conditions make it difficult for our current and prospective customers and us to forecast and plan future business activities accurately, and they could cause our customers or prospective customers to reevaluate their decision to purchase our products or services. Also, global or national health concerns, including the outbreak of pandemic or contagious disease such as the recent coronavirus outbreak, can negatively impact the global economy and demand for our services. Weak global economic conditions, or a reduction in IT spending even if economic conditions improve, could adversely impact our business and operating results in a number of ways, including longer sales cycles, lower prices for our products, reduced bookings and lower or no growth.
Our future quarterly results may fluctuate significantly, which could cause our stock price to decline.
Our previous results are not necessarily indicative of our future performance and our future quarterly results may fluctuate significantly. Our future performance will depend on many factors, including:
fluctuations in the economy;
the timing of securing software license contracts and the delivery of software and related revenue recognition;
the seasonality of information technology, including network storage products, spending;
the average unit selling price of our products;
existing or new competitors introducing better products at competitive prices before we do;
our ability to manage successfully the complex and difficult process of qualifying our products with our customers;
new products or enhancements from us or our competitors;
our ability to release new and innovative products;
import or export restrictions on our proprietary technology; and
personnel changes.
Many of our expenses are relatively fixed and difficult to reduce or modify. As a result, the fixed nature of our expenses will magnify any adverse effect of a decrease in revenue on our operating results.
The ability to predict our future effective tax rates could impact our ability to accurately forecast future earnings.
We are subject to income taxes in both the United States and the various foreign jurisdictions in which we operate. Judgment is required in determining our provision for income taxes and there are many transactions and calculations where the tax determination may be uncertain. Our future effective tax rates could be affected by changes in our (i) earnings or losses; (ii) changes in the valuation of our deferred tax assets; (iii) changes in tax laws; and (iv) other factors. Our ability to correctly predict our future effective tax rates based upon these possible changes could significantly impact our forecasted earnings.
Our business could be materially affected as a result of a natural disaster, terrorist acts, or other catastrophic events.
While our headquarters facilities contain redundant power supplies and generators, our domestic and foreign operations, and the operations of our industry partners, remain susceptible to fire, floods, power loss, power shortages, telecommunications failures, break-ins and similar events. Terrorist actions domestically or abroad could lead to business disruptions or to cancellations of customer orders or a general decrease in corporate spending on information technology, or could have direct impact on our marketing, administrative or financial functions and our financial condition could suffer. We continually look for alternatives to help mitigate any supply chain disruptions due to natural disasters, terrorist acts or other catastrophic events, including public health epidemics such as the recent outbreak of coronavirus, first identified in China. However, our failure to mitigate these supply chain disruptions could impact our ability to procure and deliver products to our customers, which could adversely impact our overall financial condition.
We are dependent on a variety of IT and telecommunications systems, and any failure of these systems could adversely impact our business and operating results.
We depend on IT and telecommunications systems for our operations. These systems support a variety of functions including order processing, shipping, shipment tracking, billing, support center and internal information exchange.
Failures or significant downtime of our IT or telecommunications systems could prevent us from taking customer orders, shipping products, billing customers, handling support calls, or communication among our offices. The Internet and individual websites have experienced a number of disruptions and slowdowns, some of which were caused by organized attacks. In addition, some websites have experienced security breakdowns. If we were to experience a security breakdown, disruption or breach that compromised sensitive information, it could harm our relationship with our customers. Our support centers are dependent upon telephone and data services provided by third party telecommunications service vendors and our IT and telecommunications system. Any significant increase in our IT and telecommunications costs or temporary or permanent loss of our IT or telecommunications systems could harm our relationships with our customers. The occurrence of any of these events could have an adverse effect on our operations and financial results.
United States Government export restrictions could impede our ability to sell our software to certain end users.
Certain of our products include the ability for the end user to encrypt data. The United States, through the Bureau of Industry Security, places restrictions on the export of certain encryption technology. These restrictions may include: the requirement to have a license to export the technology; the requirement to have software licenses approved before export is allowed; and outright bans on the licensing of certain encryption technology to particular end users or to all end users in a particular country. Certain of our products are subject to various levels of export restrictions. These export restrictions could negatively impact our business.
The international nature of our business could have an adverse effect on our operating results.
We sell our products worldwide. Accordingly, our operating results could be materially adversely affected by various factors including regulatory, political, or economic conditions in a specific country or region, trade protection measures and other regulatory requirements, and acts of terrorism and international conflicts.
Additional risks inherent in our international business activities generally include, among others, longer accounts receivable payment cycles, difficulties in managing international operations, decreased flexibility in matching workforce needs as compared with the U.S., and potentially adverse tax consequences. Such factors could materially adversely affect our future international sales and, consequently, our operating results.
Foreign currency fluctuations may impact our revenue.
Our licenses and services in Japan are sold in Yen. Many of our licenses and services in Australia, Canada, and in Europe are sold in Australian dollars, Canadian dollars and European Monetary Units (“Euros”), respectively. Changes in economic or political conditions globally and in any of the countries in which we operate could result in exchange rate movements, new currency or exchange controls or other restrictions being imposed on our operations.
Fluctuations in the value of the U.S. dollar may adversely affect our results of operations. Because our consolidated financial results are reported in U.S. dollars, translation of sales or earnings generated in other currencies into U.S. dollars can result in a significant increase or decrease in the reported amount of those sales or earnings. Significant changes in the value of these foreign currencies relative to the U.S. dollar could have a material adverse effect on our financial condition or results of operations. For example, the U.S. dollar has weakened against the Japanese Yen by 1% from December 31, 2018 to December 31, 2019.
Fluctuations in currencies relative to currencies in which our earnings are generated make it more difficult to perform period- to-period comparisons of our reported results of operations. For purposes of accounting, the assets and liabilities of our foreign operations, where the local currency is the functional currency, are translated using period-end exchange rates, and the revenue, expenses and cash flows of our foreign operations are translated using average exchange rates during each period.
In addition to currency translation risks, we incur currency transaction risk whenever we enter into either a purchase or a sales transaction using a currency other than the local currency of the transacting entity. Given the volatility of exchange rates, we cannot be assured we will be able to effectively manage our currency transaction and/or translation risks. Volatility in currency exchange rates may have a material effect on our financial condition or results of operations. Currency exchange rate fluctuations have not, in the past, resulted in a material impact on earnings. However, we may experience at times in the future an impact on earnings as a result of foreign currency exchange rate fluctuations.
Because we conduct operations in China, risks associated with economic, political and social events in China could negatively affect our business and operating results.
China is a significant market for our products. We have an OEM agreement with Huawei which has historically provided us with significant revenue. As of December 31, 2019 we have 1 employee in China. Our operations in China are subject to a number of risks relating to China’s economic and political systems, including:
government controlled foreign exchange rate and limitations on the convertibility of the Chinese Renminbi;
extensive government regulation;
changing governmental policies relating to tax benefits available to foreign-owned businesses;
the telecommunications infrastructure;
relatively uncertain legal system; and
uncertainties related to continued economic and social reform.
Any significant interruption in our China operations, whether resulting from any of the above uncertainties, natural disasters or otherwise, could result in delays or disruptions in our revenue and our research development operations, either of which could cause our business and operating results to suffer. For instance, the ongoing coronavirus outbreak emanating from China at the beginning of 2020 has resulted in extended shutdown of certain businesses in the region and would affect demand for our products and services.
If we are unable to protect our intellectual property, our business will suffer.
Our success is dependent upon our proprietary technology. We have 33 patents issued, and numerous pending patent applications, numerous trademarks registered and multiple pending trademark applications related to our products. We cannot predict whether we will receive patents for our pending or future patent applications, and any patents that we own or that are issued to us may be invalidated, circumvented or challenged. In addition, the laws of certain countries in which we sell and manufacture our products, including various countries in Asia, may not protect our products and intellectual property rights to the same extent as the laws of the United States.
We also rely on trade secret, copyright and trademark laws, as well as the confidentiality and other restrictions contained in our respective sales contracts and confidentiality agreements to protect our proprietary rights. These legal protections afford only limited protection and if we are unable to protect our intellectual property our business and operating results may suffer.
Our efforts to protect our intellectual property may cause us to become involved in costly and lengthy litigation, which could seriously harm our business.
In recent years, there has been significant litigation in the United States involving patents, trademarks and other intellectual property rights.
Any litigation, regardless of its outcome, would likely be time consuming and expensive to resolve and would divert management’s time and attention and might subject us to significant liability for damages or invalidate our intellectual property
rights. Any potential intellectual property litigation against us could force us to take specific actions (any of which could have a material adverse effect on our business), including:
cease selling our products that use the challenged intellectual property;
obtain from the owner of the infringed intellectual property right a license to sell or use the relevant technology or trademark, which license may not be available on reasonable terms, or at all; or
redesign those products that use infringing intellectual property or cease to use an infringing product or trademark.
Cyber-attacks and breaches could cause operational disruptions, fraud or theft of sensitive information.
Aspects of our operations are reliant upon internet-based activities, such as ordering supplies and back-office functions such as accounting and transaction processing, making and accepting payments, processing payroll and other administrative functions, etc. Although we have taken measures to protect our technology systems and infrastructure, including employee education programs regarding cybersecurity, a breach of the security surrounding these functions could result in operational disruptions, theft or fraud, or exposure of sensitive information to unauthorized parties. Such events could result in additional costs related to operational inefficiencies, or damages, claims or fines.
Developments limiting the availability of Open Source software could impact our ability to deliver products and could subject us to costly litigation.
Many of our products are designed to include software or other intellectual property licensed from third parties, including “Open Source” software. At least one intellectual property rights holder has alleged that it holds the rights to software traditionally viewed as Open Source. In addition, United States courts have not interpreted the terms of many open source licenses, and there is a risk that such licenses could be construed in a manner that could impose unanticipated conditions or restrictions on our ability to commercialize our appliances. We could be required to seek licenses from third parties in order to continue offering our software, to re-engineer our software, to discontinue the sale of our software in the event re-engineering cannot be accomplished on a timely basis or to litigate any disputes relating to our use of open source software, any of which could harm our business. There can be no assurance that the necessary licenses would be available on acceptable terms, if at all. The inability to obtain certain licenses or other rights or to obtain such licenses or rights on favorable terms, or the need to engage in litigation regarding these matters, could have a material adverse effect on our business, operating results, and financial condition. Moreover, the inclusion in our products of software or other intellectual property licensed from third parties on a nonexclusive basis could limit our ability to protect our proprietary rights in our products.
Risks Related to Our Capitalization
Our indebtedness could adversely affect our financial health and prevent us from fulfilling our obligations under the Amended and Restated Term Loan Credit Agreement, as amended by the Amendment.
staggered, three-year terms.Pursuant to the Amendment, we are required to repay the $1,000,000 advance on the 2019 Term Loan by September 27, 2020 (as may be extended pursuant to the termsCertificate of the Amendment) and the original Term Loan in the principal amount of $3,510,679 matures on June 30, 2021.
Our indebtedness could have important consequences to you. For example, it could:
increase our vulnerability to general adverse economic and industry conditions;
make it more difficult for us to satisfy our other financial obligations, including our obligations relating to the Term Notes, including the 2019 Term Note;
restrict us from making strategic acquisitions or cause us to make non-strategic divestitures;
require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes;
make it more difficult for us to satisfy our obligations to our lenders, resulting in possible defaults on and acceleration of such indebtedness;
limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
place usDesignations, so long as at a competitive disadvantage compared to our competitors that have less debt; and
limit our ability to borrow additional funds or increase our cost of borrowing.
In addition, the terms of the Amended and Restated Term Loan Credit Agreement contain restrictive covenants that limit our ability to engage in activities that may be in our long-term best interests, and the Amendment contains additional financial covenants
that further limit our activities. Our failure to comply with those covenants could result in an event of default which, if not cured or waived, could result in the acceleration of all of the Term Notes. The occurrence of any one of these events could have a material adverse effect on our business, financial condition, results of operations, prospects or ability to satisfy our obligations under the Amended and Restated Term Loan Credit Agreement.
To service our indebtedness, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control. As such, we may not be able to generate sufficient cash to service the Term Notes or our other indebtedness, and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make payments on and to refinance the Term Notes, to fund planned capital expenditures, maintain sufficient working capital and fund any redemptionleast 85% of the Series A Preferred Stock will depend on our ability to generate cash inremains outstanding, the future. This, toholders of a certain extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.
We cannot assure you that our business will generate sufficient cash flow from operations or future borrowings from other sources in an amount sufficient to enable us to service the Term Notes, or to fund our other liquidity needs. If our cash flows and capital resources are insufficient to allow us to make scheduled payments on our indebtedness, we may need to reduce or delay capital expenditures, sell assets, seek additional capital, restructure or refinance the Term Notes, on or before the maturity thereof or seek a waiver of any redemption rights, any of which could have a material adverse effect on our operations. We cannot assure you that we will be able to refinance the Term Notes, on commercially reasonable terms or at all, or that the terms of that indebtedness will allow anymajority of the
above alternative measures orthen outstanding shares of Series A Preferred Stock (the “Majority Holders”) have the right, voting separately as a class, to elect two directors. The Majority Holders have, as of the date hereof, elected two directors, Martin M. Hale, Jr. and Michael Kelly. Messrs. Rudolph and Miller were elected by the Board to fill vacancies created by the resignation of other directors. Mr. Brooks was appointed to the Board in February 2019. The Company currently has five directors.The names of the directors are set forth below:
Name | Position | Age | Director Since |
| Martin M. Hale, Jr. | Director | 49 | 2013 |
| Michael P. Kelly | Director | 73 | 2014 |
| William D. Miller | Director | 60 | 2016 |
| Barry A. Rudolph | Director | 67 | 2016 |
| Todd Brooks | Director | 56 | 2019 |
Martin M. Hale, Jr. has served as the founder and CEO of Hale Capital Partners, LP, an investment firm that these measures would satisfy our scheduled debt service obligations. If we are unableapplies a private equity skill set and focus to generate sufficient cash flow to repay or refinance our debt on favorable terms, it could significantly adversely affect our financial condition,investing in small and our ability to make any required cash payments undermicro-cap public companies, since 2007. Mr. Hale has 20 years of experience in venture capital and private equity as a board member and an investor helping public and private companies grow. Mr. Hale currently serves as a director of Lantronix Corporation, Culmen International and Patch Media. Mr. Hale has also served as a director of publicly-traded technology companies including Adept Technology, Inc. (acquired by Omron Global), Analex Corporation (acquired by QinetiQ North America), Paradigm Holdings (acquired by CACI International, Inc.), Telanetix, Inc. (acquired by Intermedia), and Top Image Systems, Ltd. Before joining Hale Capital Partners, Mr. Hale was a Managing Director and member of the Term Notes or fund any redemptionfounding team of Pequot Ventures, an associate at Geocapital Partners, and an analyst with Broadview International. Mr. Hale received a B.A. from Yale University. Mr. Hale has been a director of the Company since September 2013.
Mr. Hale was elected as a director by the Majority Holders of the outstanding Series A Preferred Stock. Mr. Hale’s Board qualifications include extensive experience helping small public companies grow to become larger and more successful. Such experience is helpful in expanding the Company’s leadership and strategic growth initiatives.
Michael P. Kelly served as a director at Adept Technology, Inc. from April 1997 to October 22, 2015 and also served as Chairman of the Board of Adept from November 2008 to October 22, 2015. Mr. Kelly has also served as Chief Executive Officer of merchant bank, Kinsale Associates, Inc., since October 2005. From July 2005 to October 2005, he was the Chief Executive Officer of Cape Semiconductor Inc., a fabless semiconductor company. From 1994 to 2005, Mr. Kelly held the positions of Vice-Chairman and Senior Managing Director of Broadview International, LLC, an international merger and acquisitions advisory firm and a division of Jefferies Group, Inc. Additionally, he has served as a director of Epicor Software Corporation, a provider of enterprise business software solutions, since September 2005. Mr. Kelly received a B.A. in Accounting from Western Illinois University, a M.B.A. from St. Louis University, and is also a Certified Public Accountant. Mr. Kelly has been a director of the Company since October 2014 and our Chairman of the Board since March 2018.
Mr. Kelly was selected as a director by the Majority Holders of the outstanding Series A Preferred Stock. Mr. Kelly’s qualifications to serve on the Board include his experience as an investment banker specializing in technology industries, which provides the Board and the Company with unique and relevant expertise in areas including capital markets, mergers and acquisitions and financing.
William D. Miller has served as Chairman and Chief Executive Officer of Axellio Inc., an edge computing systems company, since November 2018 and has been General Partner of FirstMile Ventures (previously Miller Investment Management), a venture capital fund manager making investments in early stage companies, since 2010. He previously served as CEO of X-IO Technologies, Inc., an enterprise storage company, from February 2015 to October 2018. Mr. Miller is a director of the following private entities: Axellio Inc., Violin Sytems LLC, Chromatic Technologies, Inc., New Planet Technologies, Inc., Wanamaker Corp., BurstIQ Inc., and Altia Inc. Mr. Miller was a cofounder and Chief Technology Officer of StorageNetworks. Mr. Miller holds a B.S. in Chemistry from the University of Illinois. Mr. Miller has been a director of the Company since December 2016 and is currently serving for a term which will expire at the Company’s 2021 Annual Meeting of Stockholders and until a successor is elected and qualified.
The following experience, qualifications, attributes and/or skills led the Board to conclude that Mr. Miller should serve as a director: his professional background and experience; his current and previously held senior-executive level positions; his service on other public and private company boards; and his extensive experience in technology, software, storage and related industries.
Barry A. Rudolph has served as Chief Executive Officer of VelociData, Inc., a firm that specializes in high performance data transformation and process offload in large corporations, since July 2014, and as a director since December 2012. Mr. Rudolph has also served as a director of Spectra Logic Corporation, a computer data storage company, since December 2015. Previously, Mr. Rudolph served as a director of Dot Hill Systems Corp., a provider of high performance storage arrays, from February 2012 until its sale to Seagate Technology in October 2015. Mr. Rudolph began his career in January 1978 and held numerous senior level positions with IBM until his retirement in November 2010 in a variety of functional areas, including operations, engineering, product development, test and assurance, program management, field support and direct manufacturing. Most recently he was Vice President, System Networking, for IBM with responsibility for delivering overall networking product strategy, portfolio management and profit and loss management over each of the products in the group. Prior to this position, Mr. Rudolph was Vice President, Storage Strategy, responsible for the development and integration of the storage strategy for IBM including market segmentation and opportunity identification. Prior to that, Mr. Rudolph was Vice President, Stack Integration, responsible for the definition and execution of horizontal solutions and solution selling. Prior positions Mr. Rudolph held at IBM include Vice President and Business Executive, Disk Storage and Software Systems, where he was responsible for all aspects of disk storage and related software business within IBM. He also held an identical role with responsibility for IBM’s tape storage business. Mr. Rudolph holds a B.S. in Engineering and a Master of Science in Electrical Engineering from San Diego State University and an MBA from Santa Clara University. Mr. Rudolph has been a director of the Company since December 2016 and is currently serving for a term which will expire at the Company’s next Annual Meeting of Stockholders and until a successor is elected and qualified.
The following experience, qualifications, attributes and/or skills led the Board to conclude that Mr. Rudolph should serve as a director: his professional background and experience; his current and previously held senior-executive level positions; his service on other public and private company boards; and his extensive experience in technology, software, storage and related industries.
Todd Brooks is the Company’s Chief Executive Officer. Prior to joining the Company, Mr. Brooks was the Chief Operating Officer at Aurea Software, and Chief Executive Officer of Update Software, a publicly traded company in Europe. Previously, Mr. Brooks was the Chief Operating Officer at Trilogy where he was responsible for the strategic and operational leadership of the firm’s Automotive, Financial Services and Telecom, and Technology & Media business units. Earlier in his career, Mr. Brooks co-founded and managed two technology consulting firms, including eFuel, an early innovator and leader in logistics optimization software for the automotive industry. In addition, Mr. Brooks held leadership roles at FedEx. Mr. Brooks earned a Bachelor’s of Science degree in Aerospace and Ocean Engineering from Virginia Tech, and currently serves on the Advisory Board at Virginia Tech’s Apex Center for Innovation and Entrepreneurship. Mr. Brooks is currently serving for a term which will expire at the Company’s 2022 Annual Meeting of Stockholders and until a successor is elected and qualified.
The following experience, qualifications, attributes and/or skills led the Board to conclude that Mr. Brooks should serve as a director: his leadership role at the Company; his performance at the Company; and his past success in the technology field.
Independence
In accordance with the Company’s Corporate Governance Guidelines, and the NASDAQ Stock Market corporate governance listing standards (the “NASDAQ Standards”), a majority of the Company’s directors must be independent as determined by the Board. While the Company’s common stock is currently traded on the OTC markets, in making its independence determinations for directors, the Board looks to the NASDAQ Standards.
Under the NASDAQ Standards, a director is independent if: the director is neither employed, nor a family member of anyone employed, as an executive officer by the Company or any parent or subsidiary; the director is not, and does not have a family member who is, a partner of the Company’s outside auditor or a former partner or employee of the outside auditor who worked on the Company’s audit during the past three years; the director has not, and does not have a family member who has, accepted more than $120,000 during the current or past three fiscal years from the Company or any of its affiliates (other than compensation paid to a family member who is an employee of the Company (other than an executive officer of the Company)); the director is not, nor is any family member of the director, a partner in, or a controlling stockholder or an executive officer of, any organization to which the Company made, or from which the Company received, payments for property or services that exceed five percent of the recipient’s consolidated gross revenues or $200,000, whichever is more; and the director is not, and does not have any family member who is, an executive officer of another company where any of the Company’s executive officers serve on the other company’s compensation committee.
The Board currently consists of five directors, all of whom are independent except for Mr. Brooks.
Board Leadership Structure
Our governance documents provide the Board with flexibility to select the appropriate leadership structure for the Company.
The Company’s policy is to have the positions of Chairman of the Board and Chief Executive Officer split. Todd Brooks serves as Chief Executive Officer and Michael Kelly serves as Chairman of the Board.
Several factors ensure that we have a strong and independent Board. The Audit Committee of our Board is composed entirely of independent directors. In addition, the Nominating and Corporate Governance Committee and our Board have assembled a Board comprised of talented and dedicated directors with a wide range of expertise and skills. The Board regularly meets in executive session without management present.
Attendance at Annual Meetings
The Company’s policy is that, except for unusual circumstances, all Board members should attend the Company’s annual meetings of stockholders. The Company did not have an Annual Meeting of Stockholders in 2020. All Board members serving on the Board at the time of the 2019 Annual Meeting of Stockholders attended the Company’s 2019 Annual Meeting of Stockholders.
Diversity
The Nominating and Corporate Governance Committee’s evaluation of director nominees takes into account their ability to restructure or refinance our debt will dependcontribute to the diversity of, background, experience and point of views represented on the conditionBoard, and the committee will review its effectiveness in balancing these considerations when assessing the composition of the capital marketsBoard.
Role in Risk Management
The Board oversees that the assets of the Company are properly safeguarded, that the appropriate financial and other controls are maintained, and that the Company’s business is conducted wisely and in compliance with applicable laws and regulations and proper governance. Included in these responsibilities is the Board’s oversight of the various risks facing the Company. In this regard, the Board seeks to understand and oversee critical business risks. The Board does not view risk in isolation. Risks are considered in virtually every business decision and as part of the Company’s business strategy. The Board recognizes that it is neither possible nor prudent to eliminate all risk. Indeed, purposeful and appropriate risk-taking is essential for the Company to be competitive on a global basis. The Board has implemented a risk governance framework to:
| 1. | understand critical risks in the Company’s business and strategy; |
| 2. | allocate responsibilities for risk oversight among the full Board and its committees; |
| 3. | evaluate the Company’s risk management processes and see they are functioning adequately; |
| 4. | facilitate open communication between management and directors; and |
| 5. | foster an appropriate culture of integrity and risk awareness. |
While the Board oversees risk management, Company management is charged with managing risk. The Company has robust internal processes and a strong internal control environment to identify and manage risks and to communicate with the Board. These include a Code of Business Conduct, regular training of salespeople on risks and appropriate conduct, and a comprehensive internal and external audit process. The Board and the Audit Committee monitor and evaluate the effectiveness of the internal controls and the risk management program at least annually. Management communicates routinely with the Board, Board committees and individual directors on the significant risks identified and how they are being managed. Directors are free to, and indeed often do, communicate directly with senior management. The Board implements its risk oversight function both as a whole and through committees. Much of the work is delegated to various committees, which meet regularly and report back to the full Board. All committees play significant roles in carrying out the risk oversight function. In particular:
| · | The Audit Committee oversees risks related to the Company’s financial statements, the financial reporting process, accounting and legal matters, currency fluctuation and hedging, and investments. The Audit Committee oversees the internal audit function and the Company’s ethics programs, including the Code of Business Conduct. The Audit Committee members meet separately with the independent auditing firm. |
| · | The Compensation Committee evaluates the risks and rewards associated with the Company’s compensation philosophy and programs. Management discusses with the Compensation Committee the procedures that have been put in place to identify and mitigate potential risks in compensation. |
Meetings
The Board met on 22 occasions during the fiscal year ended December 31, 2020. All directors attended at least 75% of the meetings of the Board during the times they were directors.
Committees
The Board currently has three standing committees: the Audit Committee; the Compensation Committee; and the Nominating and Corporate Governance Committee. Each of these committees has a charter. These charters are available on the Company’s website at:
www.falconstor.com/page/545/board-committees.
Audit Committee
The Audit Committee consists of Messrs. Kelly (Chair), Rudolph and Miller. The Audit Committee is appointed by the Board to assist the Board in monitoring (i) the integrity of the financial statements of the Company, (ii) the qualifications and independence of the independent registered public accounting firm engaged to audit the Company’s consolidated financial statements, (iii) the performance of the Company’s internal audit function and independent auditors, (iv) the integrity of management and information systems and internal controls, and (v) the compliance by the Company with legal and regulatory requirements.
Each member of the Audit Committee is required to be “independent” as defined in the NASDAQ Standards and in Section 301 of the Sarbanes-Oxley Act of 2002 (the “Act”) and Rule 10A-3 of the Exchange Act. The Board has determined that each member of the Audit Committee is “independent” under these standards. In addition, the Board has determined that, as required by the NASDAQ Standards, each member of the Audit Committee was able to read and to understand financial statements at the time of his appointment to the Audit Committee.
The Board has further determined that Mr. Kelly meets the definition of “audit committee financial expert,” and therefore meets comparable NASDAQ Standard requirements, because he has an understanding of financial statements and GAAP; has the ability to assess GAAP in connection with the accounting for estimates, accruals, and reserves; has experience in analyzing and evaluating financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that can reasonably be expected to be raised by the Company’s financial statements; has an understanding of internal controls and procedures for financial reporting; and has an understanding of audit committee functions. Mr. Kelly acquired these attributes through education and experience consistent with the requirements of the Act.
The Audit Committee met four times during the fiscal year ended December 31, 2020. All members of the Audit Committee attended at least 75% of the meetings of the committee during the fiscal year ended December 31, 2020.
The Board has adopted, and annually reviews, an Audit Committee Charter and Guidelines for Pre-Approval of Independent Auditor Services. As indicated above, a copy of the Company’s Audit Committee Charter is available on the Company’s website at:
www.falconstor.com/page/545/board-committees.
Compensation Committee
The Compensation Committee currently consists of Messrs. Hale (Chair), Kelly and Rudolph. The Compensation Committee is appointed by the Board (i) to discharge the responsibilities of the Board relating to compensation of the Company’s executives, and (ii) to administer, and to approve awards under, the Company’s equity-based compensation plans for employees.
At the end of each fiscal year, the Compensation Committee meets to review the performance of executive officers and employee Board members under those programs and award bonuses thereunder. At that time, the Compensation Committee may also adjust base salary levels for executive officers and employee Board members. The Compensation Committee also meets when necessary to administer our stock incentive plan.
The Compensation Committee has determined and reviewed the value and forms of compensation for our Named Executive Officers and other officers based on the committee members’ knowledge and experience, competitive proxy and market compensation information and management recommendations. The Compensation Committee does not delegate its authority to review, determine and recommend, as applicable, the forms and values of the various elements of compensation for executive officers and directors. The Compensation Committee does delegate to Company management the implementation and record-keeping functions related to the various elements of compensation it has approved.
The Compensation Committee met four times during the fiscal year ended December 31, 2020. All members of the Compensation Committee attended at least 75% of the meetings of the committee during the fiscal year ended December 31, 2020.
Nominating and Corporate Governance Committee
The Nominating and Corporate Governance Committee consists of Messrs. Hale (Chair), Kelly, Rudolph and Miller. The Nominating and Corporate Governance Committee is appointed by the Board: (i) to identify individuals qualified to become Board members, (ii) to recommend to the Board director candidates for each annual meeting of stockholders or as necessary to fill vacancies and newly created directorships and (iii) to perform a leadership role in shaping the Company’s corporate governance policies, including developing and recommending to the Board a set of corporate governance principles.
The Nominating and Corporate Governance Committee met one time during the fiscal year ended December 31, 2020. All members of the Nominating and Corporate Governance Committee attended this meeting.
Nominating Procedures and Director Qualifications
The Nominating and Corporate Governance Committee has adopted the following policies regarding nominations and director qualifications:
| I. | Consideration of Nominees Recommended by Stockholders |
The committee recognizes that qualified candidates for nomination for director can come from many different sources, including from the Company’s stockholders. The committee will therefore consider any nominee who meets the minimum qualifications set forth below.
To propose a nominee, a stockholder must provide the following information:
| 1. | The stockholder’s name and, if different, the name of the holder of record of the shares. |
| 2. | The stockholder’s address and telephone number. |
| 3. | The name of the proposed nominee. |
| 4. | The address and phone number of the proposed nominee. |
| 5. | A listing of the proposed nominee’s qualifications. |
| 6. | A statement by the stockholder revealing whether the proposed nominee has assented to the submission of her/his name by the stockholder. |
| 7. | A statement from the stockholder describing any business or other relationship with the nominee. |
| 8. | A statement from the stockholder stating why the stockholder believes the nominee would be a valuable addition to the Company’s Board. |
The stockholder should submit the required information to:
Nominating and Corporate Governance Committee
c/o Chief Financial Officer
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
With a copy to:
Director Human Resources
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
If any information is missing, the proposed nominee will not be considered.
| II. | Qualifications for Candidates |
The committee believes that the Company and its stockholders are best served by having directors from diverse backgrounds who can bring different skills to the Company. It is therefore not possible to create a rigid list of qualifications for director candidates. However, absent unique circumstances, the committee expects that each candidate should have the following minimum qualifications:
| · | Substantial experience with technology companies. This experience may be the result of employment with a technology company or may be gained through other means, such as financial analysis of technology companies; |
| · | The highest level of personal and professional ethics, integrity and values; |
| · | An inquiring and independent mind; |
| · | Practical wisdom and mature judgment; |
| · | Expertise that is useful to the Company and complementary to the background and experience of other Board members, so that an optimal balance of Board members can be achieved and maintained; |
| · | Willingness to devote the required time to carrying out the duties and responsibilities of Board membership; |
| · | Commitment to serve on the Board for several years to develop knowledge about the Company’s business; |
| · | Willingness to represent the best interests of all stockholders and to objectively appraise management performance; and |
| · | Involvement only in activities or interests that do not conflict with the director’s responsibilities to the Company and its stockholders. |
At any time, the committee may be looking for director candidates with certain qualifications or skills to replace departing directors or to complement the skills of existing directors and to add to the value of the Board.
| III. | Identification and Evaluation of Candidates |
Candidates for director may come from many different sources including, among others, recommendations from current directors, recommendations from management, third-party search organizations, and stockholders.
In each instance, the committee will perform a thorough examination of the candidate. An initial screening will be performed to ensure that the candidate meets the minimum qualifications set forth above and has skills that would enhance the Board. Following the initial screening, if the candidate is still viewed as a potential nominee, the committee will perform additional evaluations including, among other things, some or all of the following: detailed resume review; personal interviews; interviews with employer(s); and interviews with peer(s).
All candidates will be reviewed to determine whether they meet the independence standards of the NASDAQ Standards. Failure to meet the independence standards may be a disqualifying factor based on the Board of Director’s composition at the time. Even if failure to meet the independence standards is not by itself disqualifying, it will be taken into account by the committee in determining whether the candidate would make a valuable contribution to the Board.
Contacting the Board of Directors
Stockholders and others may contact the Company’s Board by sending a letter to:
Board of Directors
FalconStor Software, Inc.
701 Brazos Street
Suite 400
Austin, TX 78701
or by clicking on the “Contact Us” link on the Company Corporate Governance home page at:
www.falconstor.com/page/540/board-of-directors.
Communications directed to the Board are screened by the Company’s Finance and/or Investor Relations departments. Routine requests for Company information are handled by the appropriate Company department. Other communications are reviewed to determine if forwarding to the Board is necessary or appropriate. The Board receives a quarterly summary of all communications that are not forwarded to the Board’s attention. All communications are kept on file for one year for any director who wishes to view them.
MANAGEMENT
Executive Officers of the Company
The following table contains the names, positions and ages of the executive officers of the Company who are not directors.
Name | Position | Age |
| Brad Wolfe | Chief Financial Officer | 61 |
Brad Wolfe is the Company’s Chief Financial Officer. Prior to joining the Company, Mr. Wolfe served as Chief Financial Officer for Asure Software (NASDAQ: ASUR) from October 2014 to July 2017. Prior to joining Asure Software, Mr. Wolfe spent most of the last 14 years with DCI Group and their related entities and investments, a private equity and investment organization, where he served in consulting, office and executive finance and operational roles for the firm’s subsidiary and portfolio companies to promote their growth and profitability. Before that, he was Chief Financial Officer and Executive Vice President at AON Corporation, a Fortune 200 company. He holds an MBA degree from Northwestern University’s Kellogg School of Business, a J.D. degree from the Kent Law School executive program, and a B.B.A. degree in accounting and information systems from Southern Methodist University.
Code of Ethics
The Company adopted a Code of Ethics that applies to the Company’s principal executive, financial and accounting officers. The Code of Ethics is available at:
http://www.falconstor.com/page/543/Code-of-ethics.
Section 16(a) Beneficial Ownership Reporting Compliance
Based upon a review of Forms 3, 4, and 5, and amendments thereto furnished to the Company during the fiscal year ended December 31, 2020, the Company is not aware of any director, officer, or beneficial owner of more than 10 percent of any class of Company equities who failed to file on a timely basis any reports required by Section 16(a) of the Exchange Act, during the fiscal year ended December 31, 2020.
| Item 11. | Executive Compensation |
This section discusses the compensation for our Chief Executive Officer and our financial conditionChief Financial Officer (each a “Named Executive Officer” or “NEO”). We had no other Named Executive Officers during the fiscal year ended December 31, 2020.
Summary Compensation Table
The following table sets forth certain compensation paid or accrued during the Company’s past two fiscal years for the Company’s (i) President and Chief Executive Officer, and (ii) Executive Vice President, Chief Financial Officer and Treasurer. “All Other Compensation” below consists of certain tax benefits paid by the Company on behalf of the NEOs. All of the share and per share information presented in this Form 10-K/A have been adjusted to reflect, unless otherwise indicated, the Company’s 1-for-100 reverse common stock split, effected on August 8, 2019, on a retroactive basis for all periods and as of all dates presented.
| Name | | Year | | Salary | | Bonus | | Stock Awards | | All Other Compensation | | Total |
| Todd Brooks | | | 2020 | | | $ | 312,500 | | | $ | 85,000 | | | $ | — | | | $ | — | | | $ | 397,500 | |
| President and Chief Executive Officer (Principal Executive Officer) | | | 2019 | | | $ | 350,000 | | | $ | 27,905 | | | $ | 367,986 | (1) | | $ | — | | | $ | 745,891 | |
| Brad Wolfe | | | 2020 | | | $ | 233,750 | | | $ | 27,500 | | | $ | 7,360 | (2) | | $ | — | | | $ | 268,610 | |
| Executive Vice President, Chief Financial Officer and Treasurer | | | 2019 | | | $ | 240,000 | | | $ | 14,412 | | | $ | 36,799 | (3) | | $ | — | | | $ | 291,211 | |
| (1) | On May 31, 2019, the Company granted 735,973 shares of restricted stock to Mr. Brooks. The restricted stock vests as follows: 2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar amounts in the table represent the total grant date fair value of the 735,973 shares granted in 2019 in accordance with the authoritative guidance issued by the FASB on stock compensation. |
| (2) | On September 30, 2020, the Company granted 14,720 shares of restricted stock to Mr. Wolfe. The restricted stock vests as follows: 2.5% of the shares shall vest on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 2.5% of the shares shall vest on the fourth anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar amounts in the table represent the total grant date fair value of the 14,720 shares granted in 2020 in accordance with the authoritative guidance issued by the FASB on stock compensation. |
| (3) | On May 31, 2019, the Company granted 73,597 shares of restricted stock to Mr. Wolfe. The restricted stock vests as follows: 2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The dollar amounts in the table represent the total grant date fair value of the 73,597 shares granted in 2019 in accordance with the authoritative guidance issued by the FASB on stock compensation. |
Narrative Discussion to Summary Compensation Table
Todd Brooks
In connection with Mr. Brooks’ appointment as Chief Executive Officer, the Board approved an offer letter to Mr. Brooks (the “Brooks Offer Letter”), which was executed on August 14, 2017. The Brooks Offer Letter provides that Mr. Brooks is entitled to receive an annualized base salary of $350,000, payable in regular installments in accordance with the Company’s general payroll practices. Mr. Brooks will also be eligible for a cash bonus of $17,500 for any quarter that is free cash flow positive on an operating basis and additional incentive compensation of an annual bonus of up to $200,000, subject to attainment of performance objectives to be mutually agreed upon and established.
Mr. Brooks’ employment can be terminated at will. If Mr. Brooks’ employment is terminated by the Company other than for cause, he is entitled to receive severance equal to twelve months of his base salary if (i) he has been employed by the Company for at least twelve months at the time of termination or (ii) a change of control has occurred within six months of Mr. Brooks’ employment. Except as set forth in the preceding sentence, Mr. Brooks is entitled to receive severance equal to six months of his base salary if he has been employed by the Company for less than six months and his employment was terminated by the Company without cause. Mr. Brooks is also entitled to vacation and other employee benefits in accordance with the Company’s policies as well as reimbursement for an apartment.
Brad Wolfe
In connection with Mr. Wolfe’s appointment as Executive Vice President, Chief Financial Officer and Treasurer, the Board approved an offer letter to Mr. Wolfe (the “Wolfe Offer Letter”), which was executed on April 4, 2018. The Wolfe Offer Letter provides that time. Any refinancingMr. Wolfe is entitled to receive an annualized base salary of $240,000, payable in regular installments in accordance with the Company’s general payroll practices. Mr. Wolfe will also be eligible for a cash bonus of $10,000 for any quarter for which the Company has net working capital cash in excess of $27,500, and additional incentive compensation of an annual bonus of up to $70,000, subject to attainment of performance objectives to be mutually agreed upon and established.
Mr. Wolfe’s employment can be terminated at will. If Mr. Wolfe’s employment is terminated by the Company other than for cause, he is entitled to receive severance equal to (i) six months of his base salary if he has been employed by the Company for at least twelve months at the time of termination or (ii) three months of his base salary if he has been employed by the Company for less than twelve months at the time of termination. Mr. Wolfe is also entitled to vacation and other employee benefits in accordance with the Company’s policies.
Outstanding Equity Awards at Fiscal Year End 2020
The following table sets forth equity awards for each NEO outstanding as of December 31, 2020:
| Name | | Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested
(#) | | Market value of shares or units of stock that have not vested
($) |
Todd Brooks
President and Chief Executive Officer (Principal Executive Officer) | | | 699,174 | (1) | | | 344,143 | |
Brad Wolfe
Executive Vice President, Chief Financial Officer and Treasurer | | | 14,720 | (2) | | | 7,314 | |
Brad Wolfe
Executive Vice President, Chief Financial Officer and Treasurer | | | 69,917 | (3) | | | 34,414 | |
| (1) | Mr. Brooks was awarded 735,973 shares of restricted stock units on May 31, 2019. The restricted stock vests as follows: 2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. |
| (2) | Mr. Wolfe was awarded 14,720 shares of restricted stock units on September 30, 2020. The restricted stock vests as follows: 2.5% of the shares shall vest on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 2.5% of the shares shall vest on the fourth anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. |
| (3) | Mr. Wolfe was awarded 73,597 shares of restricted stock units on May 31, 2019. The restricted stock vests as follows: 2.5% of the shares vested immediately upon grant on May 31, 2019, the grant date; 2.5% of the shares vested on the first anniversary of the grant date; 2.5% of the shares shall vest on the second anniversary of the grant date; 2.5% of the shares shall vest on the third anniversary of the grant date; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. |
Payments Upon Severance or Change in Control
Report on Repricing of Options.
None of the stock options granted under any of the Company’s plans were repriced in the fiscal year ended December 31, 2020.
Equity Compensation Plan Information
The Company currently does not have any equity compensation plans not approved by security holders.
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights
(1)(a) | Weighted-average exercise price of outstanding options, warrants and rights (1)(b) | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column
(a) (1)(c) |
| Equity compensation plans approved by security holders | 1,395,993 | $ 0.80 | 1,421,240 |
(1) As of December 31, 2020 we had 1,421,240 shares of our debt could be at higher interest ratescommon stock reserved for issuance under our stock plans with respect to options and may require us warrants (or restricted stock or restricted stock units) that have not been granted. See Note (10) Share-Based Payment Arrangements to complyour consolidated financial statements for further information.
Director Compensation
Directors who are also employees receive no compensation for serving on the Company’s Board. Non-employee directors are reimbursed for all travel and other expenses incurred in connection with more onerous covenants, which could further restrict our business operations. In addition, any future credit facility may be secured by a priority lien on substantially all of our assets. As such, our ability to refinance the Term Notes or seek additional financing could be impairedattending Board and Committee meetings.
Messrs. Hale, Kelly, Miller and Rudolph received $40,500, $22,375, $10,000, and $15,500 in directors’ fees, respectively, in 2021 in connection with their service as a resultdirector in 2020. The cash compensation includes a retainer for all directors plus additional amounts based on service on Board committees, and additional amounts payable to Mr. Kelly for serving as Chairman of such security interest.
Wethe Board and Chairman of the Audit Committee. Based on this compensation plan and assuming continued service as a director in 2021 (including the fees from serving on a committee), Messrs. Hale, Kelly, Miller and Rudolph are
subjectentitled to
quarterly fees of $12,125 (or $48,500 annually), $17,475 (or $69,900 annually), $10,975 (or $43,900 annually) and $12,100 (or $48,400 annually), respectively. Messrs. Miller and Rudolph received grants of 73,600 shares of restricted stock each on September 30, 2020 and Mr. Kelly received a
numbergrant of
covenants44,158 shares of restricted stock on January 16, 2020 and 73,600 shares of restricted stock on September 30, 2020. The restricted shares that were granted on September 30, 2020 vest as follows: 2.5% of the shares shall vest on September 30, 2021; 2.5% of the shares shall vest on September 30, 2022; 2.5% of the shares shall vest on September 30, 2023; 2.5% of the shares shall vest on September 30, 2024; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company. The restricted shares that were granted on January 16, 2020 vest as follows: 2.5% of the shares vested immediately upon grant; 2.5% of the shares vested on May 31, 2020; 2.5% of the shares shall vest on May 31, 2021; 2.5% of the shares shall vest on May 31, 2022; 45% of the shares shall vest upon preferred investors receiving cash proceeds in return on their invested capital in the Company; and 45% of the shares shall vest upon a change of control of the Company.2020 Management Incentive Plan
For 2020, management is eligible to earn quarterly bonuses based on achieving targeted cash flow, billings, and retention results which exceed defined minimums.
For 2020, Mr. Brooks and Mr. Wolfe did not receive bonuses in connection with the 2020 Management Incentive Plan.
2021 Management Incentive Plan
For 2021, management is eligible to earn quarterly bonuses based on achieving targeted net working capital cash balance, renewal rate, billings, and other conditions,specified criteria which may restrict our business and financing activities.
are achieved or exceed defined minimums. | Item 12. | Security Ownership of Certain Beneficial Owners and Management |
The Amended and Restated Term Loan Credit Agreement has customary representations, warranties and affirmative and negative covenants. The negative covenants include financial covenantsfollowing table sets forth information concerning ownership of the Company’s common stock outstanding at March 31, 2021, by (i) each person known by the Company to maintain minimum cash denominatedbe the beneficial owner of more than five percent of its common stock, (ii) each director and nominee for director, (iii) each of the Named Executive Officers identified in U.S. dollars plus accounts receivable outstandingthe summary compensation table, and (iv) all directors, nominees for lessdirector and executive officers of the Company as a group.
Name and Address of Beneficial Owner (1) | Shares Beneficially Owned | Percentage of Class (2) |
Martin Hale, Hale Fund Management, LLC Hale Capital Management, LP, Hale Capital Partners, LP, HCP-FVA, LLC (3) | 3,652,335 | 60.8% |
| Nantahala Capital Management, LLC (4) | 579,046 | 9.7% |
| ESW Capital, LLC (5) | 1,308,068 | 21.9% |
| Michael P. Kelly (6) | 12,227 | * |
| Barry Rudolph (7) | 3,672 | * |
| William Miller (8) | 3,665 | * |
| Todd Brooks (9) | 56,697 | * |
| Brad Wolfe (10) | 5,520 | * |
| All Directors, Nominees for Director and Executive Officers as a Group (11) (6 persons) | 3,734,116 | 62.0% |
*Less than 90one percent
| (1) | A person is deemed to be the beneficial owner of voting securities over which the person has voting power or that can be acquired by such person within 60 days after March 31, 2021 upon the exercise of options or convertible securities, or upon the lapse or the removal of all restrictions on shares of restricted stock. Each beneficial owner’s percentage ownership is determined by assuming that options or convertible securities that are held by such person (but not those held by any other person) and that are currently exercisable (i.e., that are exercisable within 60 days from March 31, 2021) have been exercised. Unless otherwise noted, we believe that all persons named in the table have sole voting and investment power with respect to all shares beneficially owned by them. |
| (2) | Based upon 5,949,463 shares of common stock outstanding as of March 31, 2021. |
| (3) | Based on information contained in Forms 4, a report on Schedule 13D/A filed by Mr. Hale, Hale Fund Management, LLC (“Fund Management”), Hale Capital Management, LP (“Capital Management”), Hale Capital Partners, LP (“Hale Capital”), and HCP-FVA on May 22, 2019 and December 31, 2018. Consists of (i) 3,597,890 shares of common stock held by Hale Capital and HCP-FVA, (ii) 708 shares held by Mr. Hale for the benefit of Hale Capital, and (iii) 558,000 shares of Series A Preferred Stock held by HCP-FVA, which equates to 54,445 shares of common stock on an as-converted basis (without giving effect to the 9.99% blocker contained in the Certificate of Designations), held by HCP-FVA. Each of Mr. Hale, Fund Management, Capital Management and Hale Capital disclaims beneficial ownership of such shares of common stock except to the extent of his or its pecuniary interest. The address of Mr. Hale, Fund Management, Capital Management, Hale Capital and HCP-FVA is 17 State Street, Suite 3230, New York, NY 10004. |
| (4) | Based on information contained in a report on Schedule 13G/A filed by Nantahala Capital Management, LLC (“Nantahala”), Wilmot B. Harkey and Daniel Mack on February 16, 2021. Consists of (i) 569,310 shares of common stock and (ii) 99,807 shares of Series A Preferred Stock that may be converted for 9,736 shares of common stock within 60 days of March 31, 2021. Messrs. Harkey and Mack are the managing members of Nantahala and disclaim beneficial ownership of such shares of common stock except to the extent of their pecuniary interest. The address of Messrs. Harkey and Mack and Nantahala is 19 Old Kings Highway S, Suite 200, Darien, CT 06820. |
| (5) | Based on information contained in a report on Schedule 13D/A filed by ESW Capital, LLC and Joseph A. Liemandt on December 31, 2018. Consists of (i) 1,286,135 shares of common stock and (ii) 224,786 shares of Series A Preferred Stock that may be converted for 21,933 shares of common stock within 60 days of March 31, 2021. ESW Capital, LLC and Mr. Liemandt disclaim Section 13(d) beneficial ownership with respect to 21,933 shares of common stock issuable upon conversion of Series A Preferred Stock as a result of the application of the 9.99% blocker contained in the Certificate of Designations. Mr. Liemandt is the sole voting member of ESW Capital, LLC and disclaims beneficial ownership of such shares of common stock except to the extent of his pecuniary interest. The address of Mr. Liemandt and ESW Capital, LLC is 401 Congress Ave., Suite 2650, Austin, TX 78701. |
| (6) | Based on information contained in Forms 3 and 4 filed by Mr. Kelly and certain other information. Consists of (i) 10,986 shares of common stock, and (ii) 1,104 shares of restricted stock units expected to vest within 60 days of March 31, 2021 (does not include 114,446 shares of restricted stock units that are not expected to vest within 60 days of March 31, 2021) and (iii) 1,405 shares of Series A Preferred Stock held by Mr. Kelly, which equates to 137 shares of common stock on an as-converted basis (without giving effect to the 9.99% blocker contained in the Certificate of Designations), held by Mr. Kelly. |
| (7) | Based on information contained in Forms 3, 4 and 5 filed by Mr. Rudolph and certain other information. Consists of 2,568 shares of common stock and 1,104 shares of restricted stock units that are expected to vest within 60 days of March 31, 2021 held by Mr. Rudolph (does not include 114,446 shares of restricted stock units that are not expected to vest within 60 days of March 31, 2021). |
| (8) | Based on information contained in Forms 3, 4 and 5 filed by Mr. Miller and certain other information. Consists of (i) 2,535 shares of common stock held by Mr. Miller, (ii) 1,104 shares of restricted stock units expected to vest within 60 days of March 31, 2021 (does not include 114,446 shares of restricted stock units that are not expected to vest within 60 days of March 31, 2021), and (iii) 26 shares of common stock held by PV Strategies LLC, a hedge fund managed by Miller Investment Management LLC, a registered investment adviser of which Mr. Miller is a principal. Mr. Miller, as a principal of Miller Investment Management LLC, may be deemed the beneficial owner of shares owned by PV Strategies LLC. Mr. Miller disclaims beneficial ownership of such shares except to the extent of his pecuniary interest therein. |
| (9) | Based on information contained in Forms 3, 4 and 5 filed by Mr. Brooks and certain other information. Consists of 38,298 shares of common stock and 18,399 shares of restricted stock units expected to vest within 60 days of March 31, 2021 held by Brooks (does not include 680,775 shares of restricted stock units that are not expected to vest within 60 days of March 31, 2021). |
| (10) | Based on information contained in Forms 3, 4 and 5 filed by Mr. Wolfe and certain other information. Consists of 3,680 shares of common stock and 1,840 shares of restricted stock units expected to vest within 60 days of March 31, 2021 held by Wolfe (does not include 82,797 shares of restricted stock units that are not expected to vest within 60 days of March 31, 2021). |
| (11) | Consists of shares of common stock held by all directors and executive officers as a group and 3,597,890 shares held by HCP-FVA. |
| Item 13. | Certain Relationships and Related Transactions, and Director Independence |
The Company’s Board has recognized that related party transactions present a heightened risk of conflicts of interest and/or improper valuation (or the perception thereof). The Board therefore adopted a policy to maintain liquiditybe followed in connection with all related party transactions involving the Company.
A. Identification of Related Transactions
Under the policy, any “Related Party Transaction” shall be consummated or shall continue only if:
| 1. | the Audit Committee approves or ratifies such transaction in accordance with the guidelines set forth in the policy and if the transaction is on terms comparable to those that could be obtained in arm’s length dealings with an unrelated third party; or |
| 2. | the transaction is approved by the disinterested members of the Board; or |
| 3. | the transaction involves compensation approved by the Company’s Compensation Committee. |
For purposes of the policy, a “Related Party” is:
| 1. | a senior officer (which includes at a minimum each executive officer) or director of the Company; or |
| 2. | a shareholder owning in excess of five percent of the Company (or its controlled affiliates); or |
| 3. | a person who is an immediate family member of a senior officer or director; or |
| 4. | an entity which is owned or controlled by someone listed in 1, 2 or 3 above, or an entity in which someone listed in 1, 2 or 3 above has a substantial ownership interest or control of such entity. |
For purposes of the policy, a “Related Party Transaction” is a transaction between the Company and any Related Party (including any transactions requiring disclosure under Item 404 of Regulation S-K under the Exchange Act), other than:
| 1. | transactions available to all employees generally; and |
| 2. | transactions involving less than $5,000 when aggregated with all similar transactions. |
B. Audit Committee Approval
The Board determined that the Audit Committee of the Board is best suited to review and approve Related Party Transactions. Accordingly, at leasteach calendar year’s first regularly scheduled Audit Committee meeting, management recommends Related Party Transactions to be entered into by the Company for that calendar year, including the proposed aggregate value of such transactions if applicable. After review, the Audit Committee approves or disapproves such transactions and at $300,000 untileach subsequently scheduled meeting, management updates the 2019 Term LoanAudit Committee as to any material change to those proposed transactions.
In the event management recommends any further Related Party Transactions subsequent to the first calendar year meeting, such transactions may be presented to the Audit Committee for approval or preliminarily entered into by management subject to ratification by the Audit Committee; provided that if ratification is repaid,not forthcoming, management shall make all reasonable efforts to cancel or annul such transaction.
C. Corporate Opportunity
The Board recognizes that situations may exist where a significant opportunity may be presented to management or a member of the Board that may equally be available to the Company, either directly or via referral. Before such opportunity may be consummated by a Related Party (other than an otherwise unaffiliated 5% stockholder), such opportunity shall be presented to the Board of the Company for consideration.
D. Disclosure
All Related Party Transactions are to be disclosed in the Company’s applicable filings as required by the Securities Act of 1933 and the other financial covenants relatingExchange Act and related rules. Furthermore, all Related Party Transactions shall be disclosed to in-force annual contract value, retention ratethe Audit Committee of the Board and churn rate. The Amendedany material Related Party Transaction shall be disclosed to the full Board.
E. Other Agreements
Management assures that all Related Party Transactions are approved in accordance with any requirements of the Company’s financing agreements.
Please see “Item 10. – Directors, Executive Officers and Restated Term Loan Credit Agreement also contains customary eventsCorporate Governance” for a discussion of default, including but not limited to payment defaults, cross defaults with certain other indebtedness, breachesDirector independence.
Related Party Transactions Reviewed During 2019 and 2020
Martin M. Hale, Jr., a member of covenants, bankruptcy events andthe Company’s Board of Directors, is a changegeneral partner of control. InHCP-FVA, the case of an event of default, as administrative agent under the Loan Agreement, HCP-FVA may (and upon the written request of lenders holdingholder in excess of 50% of the Term Loan, which must include HCP-FVA, is required to) accelerate payment of all obligations under the Loan Agreement, and seek other available remedies.
Company’s Series A Preferred Stock. The restrictions in the Amended and Restated Term Loan Credit Agreement may prevent us from taking actions that we believe would be in the best interests of our business, and may make it difficult for us to successfully execute our business strategy or effectively compete with companies that are not similarly restricted. In addition, our ability to comply with the financial and other covenants and restrictions in the Amended and Restated Term Loan Credit Agreement will largely depend on the pricing of our products and services, and our ability to successfully implement our overall business strategy. We cannot assure you that we will be granted waivers or amendments to the Amended and Restated Term Loan Credit Agreement if for any reason we are unable to comply with these covenants and restrictions. The breach of any of these covenants and restrictions could result in a default under the Amended and Restated Term Loan Credit Agreement, which could result in an acceleration of our indebtedness.
The likelihood of a change of control in our company could be impacted by the fact that we have a significant amount of authorized but unissued preferred stock, protective provisions in our charter, outstanding Series A Preferred Stock was purchased by Hale Capital, of which Mr. Hale is a staggered Board of Directors and change of control agreements as well as certain provisions under Delaware law.
Our Board of Directors hasgeneral partner, pursuant to a September 16, 2013 stock purchase agreement with the authority, without further action by our common stockholders, to issue up to an additional 1,100,000 shares of preferred stock on such terms and with such rights, preferences and designations, including, without limitation restricting dividends on our common stock, dilutionCompany at a time when Mr. Hale was not a director of the voting powerCompany. Hale Capital subsequently assigned all of our common stock and impairing the liquidationits rights of the holders of our common stock, as the Board may determine without any vote of our common stockholders. Issuance of such preferred stock, depending upon the rights, preferences and designations thereof may have the effect of delaying, deterring or
preventing a change in control. Moreover, our outstanding Series A Preferred Stock provides the holders with certain rights in the event of a merger with a third party and if we are unable to redeem the Series A Preferred Stock prior to July 30, 2021 or ifHCP-FVA. Under the holdersterms of the Series A Preferred Stock elect to exercise their rights to require the Company to redeem the Series A Preferred Stock due to the failure of the Company to comply with the financial covenants covering the Series A Preferred Stock. In addition, our Restated Certificate of Incorporation, as amended, includes certain provisions that restrict transfers of our common stock in order to protectDesignations, the Company's net operating losses if the effect of such transfers would be to increase the direct or indirect ownership of stockholder from less than 4.99% to 4.99% or more of our common stock, or increase the ownership percentage of stockholder owning 4.99% or more of our common stock. Certain “antitakeover” provisions of the Delaware General Corporation Law, among other things, may restrict the ability of our stockholders to authorize a merger, business combination or change of control. Further, we have a staggered Board of Directors and have entered into change of control agreements through employment agreements with certain executives. In addition, generally proceeds received upon a change of control will be used first to repay outstanding principal and interest on the Term Loans and then to the holders of the Series A Preferred Stock, prior to the holders of the common stock, in an amount equal to the amount of unpaid principal and interest on the Term Loans and 100% of the stated value plus accrued and unpaid dividends with respect to the Series A Preferred Stock. As a result of the foregoing, our stockholders may lose opportunities to dispose of their shares at favorable prices generally available in takeover attempts or that may be available under a merger proposal and the market price of our common stock and the voting and other rights of our stockholders may also be affected.
The conversion and exercise of our outstanding securities and the anticipated grant of restricted stock to our employees will dilute the then-existing stockholders’ percentage ownership of our common stock.
We have outstanding options to purchase 10,445 shares of our common stock, an aggregate of 1,147,002 outstanding unvested restricted shares and outstanding Series A Preferred Stock convertible into 87,815 shares of our common stock. Over the next several years a significant number of shares of common stock are potentially issuable as dividends with respect to the Series A Preferred Stock (including 4,354 share of common stock reserved for issuance related to the accrued dividend as of December 31, 2019). We also intend to grant employees up to 15% of the equity of the Company on a fully diluted basis, plus potentially two additional tranches of 2.5% of the equity of the Company on a fully diluted basis.
The exercise of all of the outstanding warrants, options and/or the vesting of all outstanding restricted shares, the conversion of our outstanding Series A Preferred Stock into common stock, the payment of dividends on our Series A Preferred Stock through the issuance of common stock and/or the grant and exercise of additional options and/or the grant and vesting of restricted stock and restricted stock units to our employees would dilute the then-existing stockholders’ percentage ownership of common stock, and any sales in the public market of the common stock issuable upon such exercise could adversely affect prevailing market prices for the common stock. Moreover, the terms upon which we would be able to obtain additional equity capital could be adversely affected because the holders of such securities can be expected to exercise or convert them at a time when we would, in all likelihood, be able to obtain any needed capital on terms more favorable than those provided by such securities.
There may be a limited public market for our securities; we presently fail to qualify for listing on any national securities exchanges.
Our common stock was delisted from the NASDAQ Capital Market in September 2017 and we do not meet all of the requirements for initial listing on a national securities exchange. Specifically, the market value and the bid price of our common stock is less than what is required to obtain a listing. Trading in our common stock continues to be conducted in the over-the-counter market. As a result, an investor may find it difficult to dispose of or to obtain accurate quotations as to the market value of our common stock, and our common stock may be less attractive for margin loans, for investment by larger financial institutions, as consideration in possible future acquisition transactions or other purposes.
Our stock price may be volatile.
The market price of our common stock has been volatile in the past and may be volatile in the future. For example, during the twelve months ended December 31, 2019, the closing market price of our common stock as quoted on the OTC MKTS fluctuated between $2.35 and $16.00 and recently the closing trading price has been $2.87. The market price of our common stock may be significantly affected by the following factors:
actual or anticipated fluctuations in our operating results, including changes in the timing of when we recognize revenue;
failure to meet financial estimates;
changes in market valuations of other technology companies, particularly those in the network storage software market;
the announcement of any strategic alternatives;
announcements by us or our competitors of significant technical innovations, acquisitions, strategic partnerships, strategic alternatives, joint ventures or capital commitments;
loss of one or more key customers;
the conversion or exercise into common stock of stock options, the vesting of restricted stock and the anticipated grant of equity to employees;
the issuance of additional shares of the Series A Preferred Stock pursuant to dividend rights; and
departures of key personnel.
The stock market has experienced extreme volatility that often has been unrelated to the performance of particular companies. These market fluctuations may cause our stock price to fall regardless of our performance.
Our agreements with the holders of the Series A Preferred Stock and/or the Term Loans contain covenants that could limit our ability to obtain financing using our equity. In addition, if we engage in future financings, we may have to use the proceeds to redeem the preferred stock held by such holders. This could cause us to have difficulty in obtaining capital necessary to run our business.
Our agreements with the holders of the Series A Preferred Stock and /or the Term Loans give such holders veto power over certain future financings, and give such holders certain rights to participate in any subsequent financing, whether through debt or equity (subject to certain exclusions). These participation rights could discourage a potential investor or a potential lender from making financing available to us on favorable terms. Because of these covenants, if we determine that we are in need of additional capital, we might not be able to obtain it. In addition, our agreements with the holders of the Series A Preferred Stock provide that if, at the time of certain future debt or equity financings, the proceeds of which exceed $5 million, the holders of the Series A Preferred Stock still have outstanding Series A Preferred Stock, then we must offer to repurchase their Series A Preferred Stock. The holders of the Series A Preferred Stock have the right to accept the offer or to retain their Series A Preferred Stock. If we do a financing, and the holders of the Series A Preferred Stock elect to have their Series A Preferred Stock repurchased, then the capital raised in excess of $5 million will go to repurchase the holders’ Series A Preferred Stock, instead of being able to be used for our business.
Our agreements with the holders of the Series A Preferred Stock and/or the Term Loans prevent us from undertaking certain transactions or incurring certain indebtedness without such holders’ consent or unless the Series A Preferred Stock held by such holders is repurchased and or the Term Loans are repaid. This could hurt our ability to sell underperforming assets or lines of business or to obtain financing.
Our agreements with the holders of the Series A Preferred Stock and/or the Term Loans prevent us from undertaking certain transactions or incurring certain debt without such holders’ consent or unless the Series A Preferred Stock held by such holders’ is repurchased and or the Term Loans are repaid. These transactions include, but are not limited to:
•A merger with, or the sale of substantially all of the Company’s assets or capital stock, to a third party;
•Assumption of indebtedness in excess of 80% of the Company’s accounts receivable; and
•The sale, license or other disposition of 10% or more of the tangible assets or capital stock of the Company.
This could limit our ability to sell off underperforming assets or business lines. It could also prevent us from obtaining financing we may need to run or to grow our business.
The holders of the Series A Preferred Stock are entitled, as a group, to dividends onnominate and to elect up to two directors so long as at least 85% of the Company’s Series A Preferred Stock they hold. Depending on whether these dividends are paid in cash or stock,is outstanding. HCP-FVA, the payment of these dividends will either decrease cash that is available to us to invest in our business or dilute the holdings of all other stockholders.
Our agreements with the holderssole holder of the Series A Preferred Stock
provide that such holders will receive quarterly dividendsat the time, nominated and elected Mr. Hale in September 2013 and Michael P. Kelly on October 29, 2014, to the Company’s Board of Directors.On November 17, 2017, HCP-FVA provided a commitment letter to the Company agreeing to finance up to $3 million to the Company (the “Commitment”) on the Series A Preferred Stock at prime rate plus 5%,terms, and subject to the conditions, set forth in the Commitment. As part of that Commitment, on November 17, 2017, the Company entered into a maximum dividend rate of 10%. We also haveLoan and Security Agreement with HCP-FVA and certain other loan parties named therein, pursuant to which the ability to accrue and roll over dividends. DueLender made a short term loan to the lackCompany in the principal amount of sufficient surplus to pay dividends as required by$500,000 payable on May 17, 2018. In connection with the Delaware General Corporation Law,short term loan, the Company was not permittedissued HCP-FVA Backstop Warrants to paypurchase 138,591 shares of common stock. See Note (7) Notes Payable and Stock Warrants for more information.
On February 23, 2018, we closed on the fourth quarter 2016 dividendCommitment whereby HCP-FVA purchased $3 million of Units (as defined in Note (7) Notes Payable and Stock Warrants) to backstop a proposed private placement of Units to certain eligible stockholders of the Company. HCP-FVA subscribed for the full $3 million of Units (at the Company’s election) in the Commitment by payment of $2.5 million in cash orand the conversion of the $500,000 short term loan In connection therewith, the Company issued HCP-FVA additional Backstop Warrants to purchase 415,774 shares of common stock and has been accruingFinancing Warrants to purchase 3,669,900 shares of common stock.
On October 9, 2018, the Company closed on the final tranche of its quarterly dividends since then.previously-announced Financing of Units to certain eligible stockholders of the Company. As a result, the Company received an additional $1,000,000 of December 31, 2019, the Company’s liability for dividendsgross proceeds from new investors (the “New Investors”) which is in addition to the holders$3,000,000 of gross proceeds previously received from HCP-FVA through the subscription of 30,000,000 Units pursuant to the Commitment on February 23, 2018.
In addition to providing the Company with $1,000,000 of gross proceeds, the New Investors purchased $520,000 of the Series A Preferred Stock totaled $2.3 million. While the Term Loans are outstanding, we are only permitted to pay in-kind dividends on the Series A Preferred Stock. If in the future we pay cash dividends on the Series A Preferred Stock, it will reduce the cash that we have available to invest in our business. There can be no assurance that we will have enough cash to pay future dividends in cash. If future dividends are paid in kind, it will dilute the holdings of all other stockholders.
The potential concentration of equity ownershipLoan held by Hale CapitalHCP-FVA and ESW Capital LLC may limit your ability to influence corporate matters.
Hale Capital currently owns approximately 60.9% of our outstanding common stock and ESW currently owns approximately 24.1% of our outstanding common stock. In addition, the beneficial ownership of Hale Capital and ESW Capital LLC is higher when calculated in accordance with Section 13(d)342,000 of the Exchange Act due to their ownership of derivative securities. In addition, Hale Capital and ESW have additional rights through their ownership900,000 shares of Series A Preferred Stock and their holdings of Company debt.
Such ownership could enable Hale Capital and ESWheld by HCP-FVA. Financing Warrants to
exert significant influence over all corporate activities, including the election or removal of directors and the outcome of tender offers, mergers, proxy contests or other purchasespurchase 636,109 shares of common stock
that could give our stockholdersheld by HCP-FVA were also cancelled. Accordingly, the
opportunityNew Investors held Financing Warrants to
realize a premium over the then-prevailing market price for theirpurchase 1,859,420 shares of common stock and HCP-FVA held Financing Warrants to purchase 3,033,791 shares of common stock.
This concentrated control will limit your abilityThe transfer of securities by HCP-FVA to
influence corporate matters and, as a result, we may take actions that our stockholders do not view as beneficial. New Investors was subject to certain transfer limitations to ensure the preservation of the Company’s net operating loss carry forward.In addition, such concentrated control could discourage others from initiating changesDecember 2018, outstanding Financing Warrants to purchase 489,321,074 of control. In such cases, the perception of our prospectsCompany’s common stock were exercised resulting in the market may be adversely affected and the market priceissuance of our common stock may decline.
Unknown Factors
Additional risks and uncertainties of which we are unaware or which currently we deem immaterial also may become important factors that affect us.
Item 1B. Unresolved Staff Comments
None
Item 2. Properties
The Company’s headquarters are located in an approximately 3,711 square foot facility in Austin, Texas. Offices are also leased for development, support, and sales and marketing personnel, which total an aggregate of approximately 68,496 square feet in Melville, N.Y.; Munich, Germany; Taichung, Taiwan; and Beijing, China. Initial lease terms range from one to two years.
Item 3. Legal Proceedings
In view of the inherent difficulty of predicting the outcome of litigation, particularly where the claimants seek very large or indeterminate damages, we generally cannot predict what the eventual outcome of the pending matters will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines or penalties related to each pending matter may be.
In accordance with the authoritative guidance issued by the Financial Accounting Standards Board ("FASB") on contingencies, we accrue anticipated costs of settlement, damages and losses for claims to the extent specific losses are probable and estimable. We record a receivable for insurance recoveries when such amounts are probable and collectable. In such cases, there may be an exposure to loss in excess of any amounts accrued. If, at the time of evaluation, the loss contingency related to a litigation is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable and, we will expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, we will accrue the minimum amount of the range.
Other Claims
We are subject to various legal proceedings and claims, asserted or unasserted, which arise in the ordinary course of business. While the outcome of any such matters cannot be predicted with certainty, such matters are not expected to have a material adverse effect on our financial condition or operating results.
We continue to assess certain litigation and claims to determine the amounts, if any, that we believe may be paid as a result of such claims and litigation and, therefore, additional losses may be accrued and paid in the future, which could materially adversely impact our financial results, cash flows and cash reserves.
Item 4. Mine Safety Disclosures
Not applicable
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock is quoted on the OTC Markets’ OTCQB under the symbol “FALC”.
Holders
We had approximately 49 holders of record489,321,074 shares of common stock as(the “Warrant Exercise”). In connection with the Warrant Exercise, the Company received proceeds of March 17, 2020. This does not reflect persons or entities that hold common stock in nominee or “street” name through various brokerage firms.
Dividends
We have not paid any cash dividendsapproximately $489,321 which was used to reduce the outstanding principal due on
our common stock since inception. We expect to reinvest any future earnings to finance growth, and therefore do not intend to pay cash dividends on our common stock in the foreseeable future. In addition, the terms of our Series A Preferred Stock and the Amended and Restated
Term Loan
Credit Agreement restrict our abilityAgreement. Such amounts repaid included $303,379.07 to
pay dividendsHCP-FVA, $122,214.13 to ESW Capital LLC, $54,264.08 to Nantahala and $763.92 to Mr. Kelly.On May 21, 2019, HCP-FVA exercised its warrant to purchase 1,543,630 shares of common stock on oura cashless exercise basis and was issued 1,518,107 shares of common stock. Our board of directors may determine to pay future cash dividends on our common stock if it determines that dividends are an appropriate use of Company capital.
Holders of the Series A Preferred Stock are entitled to receive quarterly dividends at the Prime Rate (Wall Street Journal Eastern Edition) plus 5% (up to a maximum amount of 10%), payable in cash, provided, that if we will not have at least $1.0 million in positive cash flow for any calendar quarter after giving effect to the payment of such dividends, we, at our election, can pay such dividends in whole or in part in cash, provided that cash flow from operations is not negative, and the remainder can be accrued or paid in common stock to the extent certain equity conditions are satisfied. Due to the lack of sufficient surplus to pay dividends as required by the Delaware General Corporation Law, the Company was not permitted to pay the fourth quarter 2016 dividend in cash or common stock and has been accruing its quarterly dividends since then. As of December 31, 2019, the Company’s liability for dividends to the holders of the Series A Preferred Stock totaled $2.3 million. While the Term Loans are outstanding, we are only permitted to pay in-kind dividends on the Series A Preferred Stock.
Equity Compensation Plan Information
|
| | | | | | |
| | | Number of securities to be issued upon exercise of outstanding options, warrants and rights (1) | | Weighted-average exercise price of outstanding options, warrants and rights (1) | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (1) |
| Plan Category | | (a) | | (b) | | (c) |
| Equity compensation plans approved by security holders | | 1,157,447 | | $1.15 | | 296,188 |
| |
(1) | As of December 31, 2019 we had 296,188 shares of our common stock reserved for issuance under our stock plans with respect to outstanding options and warrants and options (or restricted stock or restricted stock units) that have not been granted. See Note (10) Share-Based Payment Arrangements to our consolidated financial statements for further information.
|
Issuer Purchases of Equity Securities
None
Unregistered Sales of Equity Securities and Use of Proceeds
None
Item 6. Selected Financial Data
We are a smaller reporting company as defined by Rule 12-b-2 of the Exchange Act and are not required to provide the information required under this Item.
ITEM 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following Management’s Discussion and Analysis of Financial Condition and Results of Operations contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements can be identified by the use of predictive, future-tense or forward-looking terminology, such as “believes,” “anticipates,” “expects,” “estimates,” “plans,” “may,” “intends,” “will,” or similar terms. Investors are cautioned that any forward-looking statements are not guarantees of future performance and involve significant risks and uncertainties, and that actual results may differ materially from those projected in the forward-looking statements. The following discussion should be read together with the consolidated financial statements and notes to those financial statements included elsewhere in this report.
OVERVIEW
FalconStor Software, Inc. is a technology company whose mission is to deliver technical innovation that creates investment protection, flexibility, and leverage of modern cloud-based technologies for our enterprise customers. We provide software and cloud services that enable our enterprise customers to better manage, protect, secure, and make use of their valuable data. Our customers achieve lower costs, simpler operations, greater data security, higher confidence in their business continuity, and greater ability to effectively use their data assets to drive innovation.
Our products are utilized by enterprises and managed service providers across the globe and address two key areas of enterprise data protection; long-term archive retention and reinstatement, and business continuity driven data replication. Our products are software-defined, which means that our technology allows our solutions to be hardware, cloud, and source-data agnostic, giving our customers maximum leverage of existing hardware and software investments. Our innovative integration into modern cloud-based technologies enables our customers to dramatically improve the portability, security, and accessibility of their enterprise data. This accessibility is key in our modern world, where data is not only protected, but also intelligently leveraged to facilitate learning, improve product design, and drive competitive advantage.
During 2019, our strategy was to increase focus on our long-term archive retention and reinstatement product, FalconStor Virtual Tape Library (“VTL”), increase go-to-market investment within our core regions of the Americas, EMEA, Japan, and Southeast Asia, and decrease our commercial exposure in China. As a result of these actions, we delivered:
38% increase in VTL sales year-over-year,
22% increase in new customer sales year-over-year across all product lines,
6% total year-over-year sales growth in our core regions of Americas, EMEA, Japan, and Southeast Asia, while intentionally reducing our sales exposure in China to less than 3% of total sales from 12% in 2018.
During 2019, we also continued to deliver innovation and enhance each of our products. Our VTL is a vital long-term archive retention and reinstatement tool in enterprise IT departments’ data protection arsenal. It enables them to modernize their backup and archive environments, save operational costs, and improve restore performance for rapid remote disaster recovery. Independent benchmark performance testing performed by the Evaluator Group, has demonstrated that our VTL product is 25% faster than the closest competitor and can be executed on hardware that is 1/3 the cost of that required by our closest competitor.
.
Through VTL, we are making significant progress expanding our technology to deliver a modern, enterprise-scale, highly flexible backup and archive data optimization solution.. As part of these efforts, we are:
Continuing to enable backup and archive data storage virtualization to independent targets, freeing our customers from vendor-specific hardware, and extending their ability to leverage multiple cloud-based data storage offerings,
Expanding our go-to-market paths well beyond legacy tape replacement,
Innovating to make significant improvements in ease-of-use and data storage agility.
We are also investing to create flexible and extensible data storage innovations for the next decade through our newest long-term archive software product, called StorSafeTM (“StorSafe”), which will be generally available in 2020 . By leveraging patent pending industry-standard Container technology to enable persistent long-term archive storage, we believe our StorSafe solution will dramatically improve archive data portability, accessibility, security, and integrity validation, especially as it relates to multi-cloud data storage leverage. As a result, a full spectrum of archive data storage options will be made available to our enterprise
customers to efficiently utilize essentially any storage environment, while confidently ensuring data security and efficient archive access.
Beyond our VTL and StorSafe long-term archive retention and reinstatement products, our NSS and CDP business continuity driven data replication products give our customers the ability to move workloads to the right destination, on-premise or in the cloud, with advanced insight. These products are designed for organizations with complex, heterogeneous IT environments and the full spectrum of data management use cases, including but not limited to large enterprises, universities, health care entities and governmental institutions. These products are modern, comprehensive and easy-to-use software solutions that enable IT professionals to have complete insight into and control over their organization’s data. Data is an organization’s most precious resource which, if managed and protected properly, can help an enterprise unlock competitive advantage, whether by gaining a better understanding of customers, uncovering ways to improve operations and reduce costs, or inventing new products, services and business models.
In 2019, to provide for greater ease of use, we began expanding our central data management console, now called StorSightTM, to interface with each of our products to provide a holistic view of an enterprise’s entire data protection environment - whether legacy data centers, hyper-converged infrastructure, cloud and/or hybrids.
FalconStor continues to focus on enterprise customers, managed service providers, cloud service providers, as well as OEM partners. These markets offer the most significant opportunity and are best suited to realize the value of FalconStor products, and provide an efficient and effective access to broad, worldwide markets. Most of our revenue comes from sales to enterprise customers through resellers. As service providers to companies, resellers’ reputations are dependent on satisfying their customers’ needs efficiently and effectively. Resellers have wide choices in fulfilling their customers’ needs. If resellers determine that a product they have been providing to their customers is not functioning as promised, or is not providing adequate return on investment, or if the customers are not satisfied with the level of support they are receiving from the suppliers, the resellers will move quickly to offer different solutions to their customers. Additional sales by resellers are therefore an important indicator of our business prospects.
Our “Business Partner” program for our resellers provides financial incentives, for those resellers that are willing to make a commitment to FalconStor through training, marketing and revenue. As part of our review of all of our operations to maximize savings without sacrificing sales, and in connection with our Business Partner program, we continually review our relationship with each of our resellers in all regions. We decided to focus on only those resellers who have the expertise, personnel and networks to identify potential customers and to service our end users.
Historically, the majority of our software licenses have been sold on a per terabyte capacity basis and have included a perpetual right to use the licensed capacity. Over the last several years, we have also offered our capacity-based licenses on a subscription or term-based model, which gives a customer the right to utilize the licensed terabyte capacity over a designated period of time. We expect revenue from subscription-based per terabyte licensing to increase over the next several years.
Fluctuation in our revenue is driven by the volume and mix of sales from period to period. Revenue allocated to perpetual and term software licenses are recognized at a point in time upon electronic delivery of the download link and the license keys, as these products have significant standalone functionality. Product maintenance and support services are satisfied over time as they are stand-ready obligations throughout the support period. As a result, revenues associated with maintenance services are deferred and recognized as revenue ratably over the term of the contract. Revenues associated with professional services are recognized at a point in time upon customer acceptance.
RESULTS OF OPERATIONS – FOR THE YEAR ENDED DECEMBER 31, 2019 COMPARED WITH THE YEAR ENDED DECEMBER 31, 2018
For the year ended December 31, 2019, we recognized $16.5 million in revenue, as compared to $17.8 million during the prior year period. While revenue benefited from a 22% increase in new customer sales for the current year, compared to 2018, this benefit was offset by a decline in revenue from sales in China and support and services revenue from legacy contracts which have termed. Despite these challenges, we are pleased with the success of our Virtual Tape Library (VTL) product offering which captured 38% sales growth, year over year, and by continued record sales in the Americas, where billings grew by more than 74%, compared to the same period during 2018.
Total cost of revenue for the year ended December 31, 2019 decreased 2% to $2.9 million for the year ended December 31, 2019, compared with $3.0 million for the year ended December 31, 2018. Total gross profit decreased $1.2 million, or 8%, to
$13.6 million for the current year, compared with $14.9 million for 2018. Total gross margin decreased to 82% for the current year, compared with 83% for 2018. The decrease in our total gross margin, and total gross profit in absolute dollars, was primarily due to a decline in revenue, and product mix, as a result of higher than anticipated hardware and appliance sales during the current period, which yield significant less profit margins, compared to our key proprietary software license offerings. Generally, our total gross profits and total gross margins fluctuate based on several factors, including (i) revenue growth levels, (ii) changes in personnel headcount and related costs, and (iii) our product offerings and mix of sales.
Overall, our total operating expenses decreased 4.2% from $14.9 million for the year ended December 31, 2018 to $14.3 million for the year ended December 31, 2019. This decrease was primarily attributable to our tighter expense controls and overall operational efficiencies which better align our current business plan on a run-rate basis. These efficiencies include among other items, stream-lined personnel related costs, global overhead costs and efficiencies realized on our redesigned go-to-market coverage models. We will continue to evaluate the appropriate headcount levels to properly align our resources with our current and long-term outlook and to take actions in areas of the Company that are not performing.
Our net loss for the year ended December 31, 2019 was $1.8 million, compared with net loss of $0.9 million for the previous year. Despite the success of our VTL product offering, record sales growth in the Americas, and continued operational efficiencies, our results were constrained by a decline in revenue from China, support and services revenue from legacy contracts which have termed, and product mix, as a result of higher than anticipated hardware and appliance sales during the current year, which yield significantly less profit margins, as compared to our key proprietary software license offerings. Our results also include $0.2 million of severance expense incurred in connection with our 2019 restructuring plan.
Net loss attributable to common stockholders, which includes the effects of the Series A Preferred Stock dividends (including accrued dividends) and accretion, was $3.3 million for the year ended December 31, 2019, compared with a net loss of $4.5 million for the year ended December 31, 2018.
We ended the year with $1.5 million of cash and cash equivalents, compared to $3.1 million at December 31, 2018 and deferred revenue of $7.4 million as of December 31, 2019, compared with $8.6 million as of December 31, 2018.
Revenue
|
| | | | | | | | |
| | | Year ended December 31, |
| | | 2019 | | 2018 |
| Revenue: | | | | |
| Product revenue | | $ | 6,767,595 |
| | $ | 5,766,532 |
|
| Support and services revenue | | 9,775,976 |
| | 12,071,374 |
|
| Total Revenue | | $ | 16,543,571 |
| | $ | 17,837,906 |
|
| Year-over-year percentage change | | |
| | |
|
| Product revenue | | 17 | % | | (36 | )% |
| Support and services revenue | | (19 | )% | | (25 | )% |
| Total percentage change | | (7 | )% | | (29 | )% |
Product revenue
Product revenue is comprised of sales of both licenses for our software solutions and sales of the platforms on which the software is installed. This includes stand-alone software applications and software integrated with industry standard hardware, sold as one complete integrated solution or sold on a subscription or consumption basis. The products are sold through our OEMs, and through (i) value-added resellers, (ii) distributors, and/or (iii) directly to end-users (collectively “non-OEMs”). These revenues are recognized when all the applicable criteria under accounting principles generally accepted in the United States are met.
Product revenue increased 17% from $5.8 million for the year ended December 31, 2018 to $6.8 million for the year ended December 31, 2019. Product revenue represented 41% and 32% of our total revenue for the years ended December 31, 2019 and 2018, respectively.
We continue to invest in our product portfolio by refreshing and updating our existing product lines and developing our next generation of innovative product offerings to drive our sales volume in support of our long-term outlook.
Support and services revenue
Support and services revenue is comprised of revenue from (i) maintenance and technical support services, (ii) professional services primarily related to the implementation of our software, and (iii) engineering services. Revenue derived from maintenance and technical support contracts are deferred and recognized ratably over the contractual maintenance term. Revenues associated with professional and engineering services are recognized at a point in time upon customer acceptance. Support and services revenue decreased 19% from $12.1 million for the year ended December 31, 2018 to $9.8 million for the year ended December 31, 2019. The decrease in support and services revenue was attributable to decreases in both maintenance and technical support services revenue and professional services revenue from legacy contracts which have termed .
Maintenance and technical support services revenue decreased from $11.8 million for the year ended December 31, 2018 to $9.4 million for the same period in 2019. Our maintenance and technical support service revenue results primarily from (i) the purchase of maintenance and support contracts by our customers, and (ii) the renewal of maintenance and support contracts by our existing and new customers after their initial contracts expire. Reductions in maintenance and technical support revenue are due to lower renewal revenue. Additionally, the conversion of existing customers using our legacy perpetual-based product licenses to our term-based product licenses has resulted and will continue to result in a shift of revenue from maintenance and technical support services revenue to product revenue.
Professional services revenue increased from $0.3 million for the year ended December 31, 2018 to $0.4 million million for the year ended December 31, 2019. Professional services revenue varies from period to period based upon (i) the number of solutions sold during the existing and previous periods, (ii) the number of customers who elect to purchase professional services, (iii) the number of professional services contracts that are performed during the period, and (iv) the number of customers who elect to purchase engineering services and the timing of acceptance from the customer. We expect professional services revenue to continue to vary from period to period based upon the number of customers who elect to utilize our professional services upon purchasing any of our solutions.
Cost of revenue
|
| | | | | | | | |
| | | Year ended December 31, |
| | | 2019 | | 2018 |
| Cost of revenue: | | | | |
| Product | | $ | 721,122 |
| | $ | 414,149 |
|
| Support and service | | 2,191,865 |
| | 2,563,755 |
|
| Total cost of revenue | | $ | 2,912,987 |
| | $ | 2,977,904 |
|
| Total Gross Profit | | $ | 13,630,584 |
| | $ | 14,860,002 |
|
| Gross Margin: | | |
| | |
|
| Product | | 89% | | 93% |
| Support and service | | 78% | | 79% |
| Total gross margin | | 82% | | 83% |
Cost of revenue, gross profit and gross margin
Cost of product revenue consists primarily of industry standard hardware we purchase and integrate with our software for turn-key integrated solutions, personnel costs, amortization of capitalized software and shipping and logistics costs. Cost of support and service consists primarily of personnel and other costs associated with providing software implementations, technical support under maintenance contracts and training.
Cost of product revenue for the year ended December 31, 2019 increased $0.3 million, or 74%, to $0.7 million, compared with $0.4 million for the same period in 2018. Product gross margin decreased to 89% for the year ended December 31, 2019, compared with 93% for the same period in 2018. The increase in cost of product revenue and decline in gross margin for the current year was primarily due to product mix, as the volume of our appliance and hardware sales, which deliver a lower margin, increased significantly, compared to the prior year period. Our cost of support and service revenue for the year ended December 31, 2019 decreased $0.4 million, or 15%, to $2.2 million, compared with $2.6 million for the same period in 2018. Support and service gross margin decreased to 78% for the year ended December 31, 2019 from 79% for the same period in 2018. The decrease in support and service cost and gross margin, as compared to the previous year, was primarily attributable to a decline support and services revenue from legacy contracts which have termed .
Total gross profit decreased $1.2 million, or 8%, from $14.9 million for the year ended December 31, 2018, to $13.6 million for the year ended December 31, 2019. Total gross margin decreased to 82% for the year ended December 31, 2019, compared with 83% for the year ended December 31, 2018. The decrease in our total gross margin, and total gross profit in absolute dollars, was primarily due to a decline in revenue, and product mix, as a result of higher than anticipated hardware and appliance sales during the current period, which yield significant less profit margins, compared to our key proprietary software license offerings. Generally, our total gross profits and total gross margins fluctuate based on several factors, including (i) revenue growth levels, (ii) changes in personnel headcount and related costs, and (iii) our product offerings and mix of sales.
Operating Expenses
Research and Development Costs
Research and development costs consist primarily of personnel costs for product development, share-based compensation expense, and other related costs associated with the development of new products, enhancements to existing products, quality assurance and testing. Research and development costs decreased $0.7 million, or 18%, to $3.2 million for the year ended December 31, 2019, from $3.9 million in 2018. The decrease was primarily related to a decrease in personnel related costs resulting from our realignment and reduction in workforce and continued efforts to allocate the appropriate level of resources based upon the product development roadmap schedule. We continue to provide substantial resources in support of our research and development activities to continue to enhance and to test our core products and in the development of new innovative products, features and options.
Selling and Marketing
Selling and marketing expenses consist primarily of sales and marketing personnel and related costs, share-based compensation expense, travel, public relations expense, marketing literature and promotions, commissions, trade show expenses, and the costs associated with our foreign sales offices. Selling and marketing expenses decreased $0.1 million, or 3%, to $4.3 million for the year ended December 31, 2019, from $4.5 million for the year ended December 31, 2018. The decrease in selling and marketing expenses was primarily attributable to a decrease in headcount resulting from our realignment and reduction in workforce as well as continued efforts to optimize our go-to-market coverage models around the world.
General and Administrative
General and administrative expenses consist primarily of personnel costs of general and administrative functions, share-based compensation expense, public company related costs, directors and officers' insurance, legal and professional fees and other general corporate overhead costs. General and administrative expenses increased $0.4 million, or 7%, to $5.6 million for the year ended December 31, 2019, from $5.3 million for the year ended December 31, 2018. The increase in general and administrative expenses was primarily driven by professional and consulting fees incurred in connection with outsourcing efforts underway in our international subsidiaries.
Restructuring costs
In June 2017, the Board approved a comprehensive plan to increase operating performance (the “2017 Plan”). The 2017 Plan resulted in a realignment and reduction in workforce. The 2017 Plan was substantially completed by the end of our fiscal year ended December 31, 2017 and when combined with previous workforce reductions in the second quarter of Fiscal 2017 reduced our workforce to approximately 81 employees at December 31, 2017. As part of this consolidation effort, the Company vacated a portion of the Mellville, NY office space during the three months ended June 30, 2018. In accordance with accounting standards governing costs associated with exit or disposal activities, expenses related to future rental payments for which the Company no longer intends to receive any economic benefit are accrued, net of any anticipated sublease income, when the Company ceases use of the leased space. During the years ended December 31, 2019 and 2018, the Company incurred lease disposal-related costs for this property of $0.9 million and $1.4 million, respectively. As of December 31, 2019, $0.2 million of the Company's remaining accrued lease disposal cost has been recorded as a component of operating lease liabilities.
During the three months ended September 30, 2019, the Company adopted a plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis (the "2019 Plan"), implemented tighter expense controls, ceased non-core activities and downsized several facilities. During the year ended December 31, 2019, the Company incurred $0.2 million
in severance expense as a result of this action. The 2019 Plan was substantially completed by the end of our fiscal year ended December 31, 2019.
Restructuring expense decreased $0.2 million for the year ended December 31, 2019 to $1.1 million, compared to a $1.3 million restructuring charge in the prior year period. For further information, refer to Note (14) Restructuring Costs, to our consolidated financial statements.
Interest and Other Expense
Interest and other expense remained constant at $0.6 million for the years ended December 31, 2019 and December 31, 2018, respectively. Interest and other expense is comprised of interest expense on our term loan, foreign currency gains and losses and the change in fair value our embedded derivatives.
Income Taxes
For the year ended December 31, 2019, we recorded an income tax provision of $0.5 million, consisting of federal, state and local and foreign taxes. Our effective tax rate for the year ended December 31, 2019 was 39.1%.
LIQUIDITY AND CAPITAL RESOURCES
Principal Sources of Liquidity
Our principal sources of liquidity are our cash, cash equivalents generated from operating, investing and financing activities. Our cash and cash equivalents balance as of December 31, 2019 totaled $1.5 million, compared with $3.1 million as of December 31, 2018.
On December 27, 2019, the Company entered theinto Amendment No. 1 to Amended and Restated Term Loan Credit Agreement, by and among the Company, certain of the Company’s affiliates in their capacities as guarantors, HCP-FVA as administrative agent for the Lenders party thereto, ESW, as co-agent, and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company. The Amendment also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced. Pursuant to the Amendment, we are required to repay such $1,000,000 advance byOn September 27, 2020, (as may be extended pursuant to the terms of Amendment).
Company paid the 2019 Term Loan in full.In connection with the initial advance of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded $378,439 and Michael Kelly funded $1,561. HCP-FVA is an affiliate of Hale Capital Partners, LP, the Company’s largest stockholder, and an affiliate of a director of the Company, Martin Hale. ESW is a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
The Amended | Item 14. | Principal Accounting Fees and Services |
Principal Accountant Fees and Restated Term Loan Credit Agreement has customary representations, warranties and affirmative and negative covenants. The negative covenants include financial covenantsServices
Fees for services rendered by the Company to maintain minimum cash denominated in U.S. dollars plus accounts receivable outstanding for less than 90 days of $2 million to maintain liquidity at least at $300,000 until the 2019 Term Loan is repaid, and other financial covenants relating to In-Force annual contract value, retention rate and churn rate. The Amended and Restated Term Loan Credit Agreement also contains customary events of default, including but not limited to payment defaults, cross defaults with certain other indebtedness, breaches of covenants, bankruptcy events and a change of control. In the case of an event of default, as administrative agent under the Amended Restated Term Loan Credit Agreement, HCP-FVA, an affiliate of Hale Capital may (and upon the written request of lenders holding in excess of 50% of the Term Loans, which must include HCP-FVA, is required to) accelerate payment of all obligations under the Amended and Restated Term Loan Credit Agreement, and seek other available remedies.
The restrictions in the Amended and Restated Term Loan Credit Agreement may prevent us from taking actions that we believe would be in the best interests of our business, and may make it difficult for us to successfully execute our business strategy or effectively compete with companies that are not similarly restricted. In addition, our ability to comply with the financial and other covenants and restrictions in the Amended and Restated Term Loan Credit Agreement will largely depend on the pricing of our products and services, and our ability to successfully implement our overall business strategy. We cannot assure you that we will be granted waivers or amendments to the Amended and Restated Term Loan Credit Agreement if for any reason we are unable to comply with these covenants and restrictions. The breach of any of these covenants and restrictions could result in a default under the Amended and Restated Term Loan Credit Agreement, which could result in an acceleration of our indebtedness.
Liquidity
As of December 31, 2019, we had a working capital deficiency of $3.8 million, which is inclusive of current deferred revenue of $5.3 million, and a stockholders' deficit of $14.0 million. During the year ended December 31, 2019, while we had net loss of $1.8 million and negative cash flow from operations of $1.9 million. Our cash and cash equivalents at December 31, 2019 was $1.5 million, a decrease of $1.6 million as compared to December 31, 2018.
The Company's ability to continue as a going concern, depends on its ability to execute its business plan, increase revenue and billings and reduce expenditures. In the third quarter of 2019, the Company adopted the 2019 Plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis. In connection with the 2019 Plan, the Company eliminated 23 positions worldwide, implemented tighter expense controls, ceased non-core activities and downsized several facilities. As of December 31, 2019, the 2019 Plan is considered to be substantially completed.
There is no assurance that the Company will be successful in generating sufficient bookings, billings, revenue or continue to reduce operating costs or that the Company will be able to obtain financing or that such financing will be on favorable terms. Any such financing would be dilutive to our shareholders. Failure to generate sufficient revenue, billings, control or further reduce expenditures and/or the inability to obtain financing will result in an inability of the Company to continue as a going concern. Subject to the foregoing, management believes that, based on projected cash flows and additional financing, the Company will have sufficient capital and liquidity to fund its operations for at least one year from the date of issuance of the accompanying interim condensed financial statements.
We believe that our cash flows from operations and existing cash on hand are sufficient to conduct our planned operations and meet our contractual requirements through at least April 2, 2021.
Cash Flow Analysis
Cash flow information is as follows:
|
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Cash (used in) provided by: | | | | |
| Operating activities | | $ | (1,899,877 | ) | | $ | (1,510,967 | ) |
| Investing activities | | (142,864 | ) | | (145,081 | ) |
| Financing activities | | 455,286 |
| | 3,760,340 |
|
| Effect of exchange rate changes | | 2,944 |
| | (56,087 | ) |
| Net increase (decrease) in cash and cash equivalents | | $ | (1,584,511 | ) | | $ | 2,048,205 |
|
Net cash used in operating activities totaled $1.9 million and $1.5 millionMarcum LLP (“Marcum”) for the years
ended December 31,2020 and 2019
and 2018, respectively. The changes in net cash used in operating activitiesare as follows:Audit Fees: Fees billed for eachprofessional services rendered by Marcum for the audit of the years ended December 31, 2019 and 2018, was primarily due to our net loss and adjustments for net changes in operating assets and liabilities, primarily changes in our accounts receivable, deferred revenue, prepaid expenses, inventory, other assets, accounts payable, and other accrued expenses.
Net cash used by investing activities totaled $0.1 million and $0.1 million for the years ended December 31, 2019 and 2018, respectively. Included in investing activities for the years ended December 31, 2019 and 2018 are purchases of property and equipment, intangible assets and cash received from security deposits.
Net cash provided by financing activities totaled $0.5 million and $3.8 million for the years ended December 31, 2019 and December 31, 2018, respectively. Included in financing activities for the year ended December 31, 2019 are proceeds from the issuance of our 2019 Term Loan in December 2019 and the partial repayment of $0.5 million of principal under our Term Loan in January 2019. Financing activities for the year ended 2018 include proceeds from the issuance of long-term debt and the exercise of warrants.
Contractual Obligations
As of December 31, 2019, our significant commitments related to (i) the Amended and Restated Term Loan Credit Agreement, (ii) our office leases, (iii) dividends (including accrued dividends) on our Series A Preferred Stock, and (iv) the potential redemption of the Series A Preferred Stock as discussed above.
The following is a schedule summarizing our significant obligations to make future payments under contractual obligations as of December 31, 2019 (at such date, the holders of the Series A Preferred Stock had not exercised their redemption rights):
|
| | | | | | | | | | | | | | | | | | |
| | Operating Leases | Note Payable (a) | Interest Payments (a) | Long-Term Income Tax Payable (b) | Series A Preferred Stock Mandatory Redemption | Dividends on Series A Preferred Stock |
| 2020 | $ | 1,754,189 |
| $ | 1,000,000 |
| $ | 314,437 |
| $ | — |
| $ | — |
| $ | — |
|
| 2021 | 639,526 |
| 3,510,679 |
| 96,626 |
| — |
| — |
| — |
|
| 2022 | — |
| — |
| — |
| — |
| — |
| — |
|
| Other (b) | — |
| ��� |
| — |
| 432,520 |
| 9,000,000 |
| 5,185,495 |
|
| Total contractual obligations | $ | 2,393,715 |
| $ | 4,510,679 |
| $ | 411,063 |
| $ | 432,520 |
| $ | 9,000,000 |
| $ | 5,185,495 |
|
| Sublease income | (831,701 | ) | — |
| — |
| — |
| — |
| — |
|
| Net contractual obligations | $ | 1,562,014 |
| $ | 4,510,679 |
| $ | 411,063 |
| $ | 432,520 |
| $ | 9,000,000 |
| $ | 5,185,495 |
|
(a) See Note (7) Notes Payable and Stock Warrants to ourCompany’s consolidated financial statements for further information.
(b) Represents our liability for uncertain tax positions. We are unable to make a reasonably reliable estimate of the timing of payments due to uncertainties in the timing of tax audit outcomes.
Off-Balance Sheet Arrangements
As of December 31, 2019 and 2018, we had no off-balance sheet arrangements.
Critical Accounting Policies and Estimates
Our critical accounting policies and estimates are those related to revenue recognition, accounts receivable allowances, deferred income taxes, accounting for share-based payments, goodwill and other intangible assets, software development costs, fair value measurements and litigation.
Revenue Recognition.We recognize revenue in accordance with the authoritative guidance issued by the FASB on revenue recognition when persuasive evidence of an arrangement exists, the fee is fixed or determinable, delivery has occurred, and collection of the resulting receivable is deemed probable. Products delivered to a customer on a trial basis are not recognized as revenue until the trial period has ended and acceptance has occurred by the customer. Reseller and distributor customers typically send us a purchase order when they have an end user identified.
The Company’s contracts with customers often include promises to transfer multiple products and services to a customer. Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment.
Judgment is required to determine the standalone selling price (“SSP”) for each distinct performance obligation. For products and services aside from maintenance and support, the Company estimates SSP by adjusting the list price by historical discount percentages. SSP for software and hardware maintenance and support fees is based on the stated percentages of the fees charged for the respective products.
The Company’s perpetual and term software licenses have significant standalone functionality and therefore revenue allocated to these performance obligations are recognized at a point in time upon electronic delivery of the download link and the license keys.
Product maintenance and support services are satisfied over time as they are stand-ready obligations throughout the support period. As a result, revenues associated with maintenance services are deferred and recognized as revenue ratably over the term of the contract.
Revenues associated with professional services are recognized at a point in time upon customer acceptance.
Accounts Receivable. We review accounts receivable to determine which receivables are doubtful of collection. In making the determination of the appropriate allowance for uncollectible accounts and returns, we consider (i) historical return rates, (ii) specific past due accounts, (iii) analysis of our accounts receivable aging, (iv) customer payment terms, (v) historical collections, write-offs and returns, (vi) changes in customer demand and relationships, (vii) actual cash collections on our accounts receivables and (viii) concentrations of credit risk and customer credit worthiness. When determining the appropriate allowance for uncollectable accounts and returns each period, the actual customer collections of outstanding account receivable balances impact the required allowance for returns. We recorded an expense of $0.1 million and $0.0 million for the years ended December 31, 2019 and 2018, respectively. These amounts are included within our consolidated statement of operations in each respective year. Changes in the product return rates, credit worthiness of customers, general economic conditions and other factors may impact the level of future write-offs, revenue and our general and administrative expenses.
Income Taxes. As discussed further in Note (5) Income Taxes, to our consolidated financial statements, in accordance with the authoritative guidance issued by the FASB on income taxes, we regularly evaluate our ability to recover deferred tax assets, and report such deferred tax assets at the amount that is determined to be more-likely-than-not recoverable. The Company records income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be realized or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. In determining the period in which related tax benefits are realized for financial reporting purposes, excess share-based compensation deductions included in net operating losses are realized after regular net operating losses are exhausted.
We account for uncertain tax positions in accordance with the authoritative guidance issued by the FASB on income taxes, which addresses the determination of whether tax benefits claimed or expected to be claimed on a tax return, should be recorded in the financial statements. Pursuant to the authoritative guidance, we may recognize the tax benefit from an uncertain tax position only if it meets the “more likely than not” threshold that the position will be sustained on examination by the taxing authority, based on the technical merits of the position or under statute expirations. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. In addition, the authoritative guidance addresses de-recognition, classification, interest and penalties on income taxes, accounting in interim periods, and also requires increased disclosures.
We record any interest and penalties related to unrecognized tax benefits in income tax expense.
The Tax Jobs and Cuts Act of 2017 ("TCJA") provides for a modified territorial tax system whereby, beginning in our 2018 tax year, global intangible low-taxed income (“GILTI”) provisions will be applied providing an incremental tax on low taxed foreign income. The GILTI provisions require us to include in our U.S. income tax return foreign subsidiary earnings in excess of an allowable return on the foreign subsidiary’s tangible assets. Under U.S. GAAP, we are allowed to make an accounting policy choice of either (1) treating taxes due on future U.S. inclusions in taxable income related to GILTI as a current-period expense when incurred (the “period cost method”) or (2) factoring such amounts into our measurement of our deferred taxes (the “deferred method”). We elected the "period cost method" as our accounting policy with respect to the new GILTI tax rules.
Accounting for Share-Based Payments. As discussed further in Note (10) Share-Based Payment Arrangements, to our consolidated financial statements, we account for share-based awards in accordance with the authoritative guidance issued by the FASB on stock compensation.
We have used and expect to continue to use the Black-Scholes option-pricing model to compute the estimated fair value of share-based compensation expense. We have used the Monte Carlo simulation model to compute the estimated fair value of share-based compensation expense for awards with a market condition. The Black-Scholes option-pricing model includes assumptions regarding dividend yields, expected volatility, expected option term and risk-free interest rates. The Monte Carlo simulation model includes assumptions regarding expected volatility, expected option term and risk-free interest rates. The assumptions used in computing the fair value of share-based compensation expense reflect our best estimates, but involve uncertainties relating to market and other conditions, many of which are outside of our control. We estimate expected volatility based primarily on historical daily price changes of our stock and other factors. The expected option term is the number of years that we estimate that the stock
options will be outstanding prior to exercise. The estimated expected term of the stock awards issued has been determined pursuant to SEC Staff Accounting Bulletin SAB No. 110. If other assumptions or estimates had been used, the share-based compensation expense that was recorded for the years ended December 31, 2019 and 2018 could have been materially different. Furthermore, if different assumptions or estimates are used in future periods, share-based compensation expense could be materially impacted in the future.
Goodwill. As discussed further in Note (1) Summary of Significant Accounting Policies, to our consolidated financial statements, we account for goodwill and other intangible assets in accordance with the authoritative guidance issued by the FASB on goodwill and other intangibles. The authoritative guidance requires an impairment-only approach to accounting for goodwill and other intangibles with an indefinite life. Absent any prior indicators of impairment, we perform an annual impairment analysis during the fourth quarter of each of our fiscal years.
As of both December 31, 2019 and 2018, we had $4.2 million of goodwill. As of both December 31, 2019 and 2018, we had $0.1 million (net of accumulated amortization), respectively, of other identifiable intangible assets. We do not amortize goodwill, but we assess for impairment at least annually on December 31st and more often if a trigger event occurs. In accordance with FASB Accounting Standards Codification ("ASC") 350, "Goodwill and Other" ("ASC 350") our goodwill impairment test includes only one step, which is a comparison of the carrying value of our one reporting unit to its fair value. Pursuant to ASC 350, any excess carrying value, up to the amount of goodwill allocated to that reporting unit, is impaired. At December 31, 2019 and 2018, the fair value of the Company's single reporting unit for purposes of its goodwill impairment test exceeded it carrying value and thus the Company determined there was no impairment of goodwill.
Software Development Costs. As discussed further in Note (1) Summary of Significant Accounting Policies, to our consolidated financial statements, we account for software development costs in accordance with the authoritative guidance issued by the FASB on costs of software to be sold, leased or marketed.
As of December 31, 2019 and 2018, we had $0.0 million and $0.1 million, respectively, of software development costs, net of amortization. The authoritative guidance requires that the costs associated with the development of new software products and enhancements to existing software products be expensed as incurred until technological feasibility of the product has been established. Once technological feasibility is established, all software costs are capitalized until the product is available for general release to customers. Judgment is required in determining when technological feasibility of a product is established and assumptions are used that reflect our best estimates. If other assumptions had been used in the current period to estimate technological feasibility, the reported product development and enhancement expense could have been affected. Annual amortization of capitalized software costs is the greater of the amount computed using the ratio that current gross revenue for a product bear to the total of current and anticipated future gross revenue for that product or the straight-line method over the remaining estimated economic life of the software product, generally estimated to be five years from the date the product became available for general release to customers. Software development costs are reported at the lower of amortized cost or net realizable value. Net realizable value is computed as the estimated gross future revenue from each software solution less the amount of estimated future costs of completing and disposing of that product. Because the development of projected net future revenue related to our software solutions used in our net realizable value computation is based on estimates, a significant reduction in our future revenue could impact the recovery of our capitalized software development costs.
Fair Value Measurement. As discussed further in Note (3) Fair Value Measurements, to our consolidated financial statements, we determine fair value measurements of both financial and nonfinancial assets and liabilities in accordance with the authoritative guidance issued by the FASB on fair value measurements and disclosures. The FASB authoritative guidance establishes three levels of inputs that may be used to measure fair value. Each level of input has different levels of subjectivity and difficulty involved in determining fair value.
Level 1—Valuations based on quoted prices for identical assets and liabilities in active markets.
Level 2—Valuations based on observable inputs other than quoted prices included in Level 1, such as quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data.
Level 3—Valuations based on unobservable inputs reflecting our own assumptions, consistent with reasonably available assumptions made by other market participants. These valuations require significant judgment.
Other-Than-Temporary Impairment
After determining the fair value of our available-for-sale debt instruments, gains or losses on these investments are recorded to other comprehensive income, until either the investment is sold or we determine that the decline in value is other-than-temporary. Determining whether the decline in fair value is other-than-temporary requires management judgment based on the specific facts and circumstances of each investment. For investments in debt instruments, these judgments primarily consider the financial condition and liquidity of the issuer, the issuer’s credit rating, and any specific events that may cause us to believe that the debt instrument will not mature and be paid in full; and our ability and intent to hold the investment to maturity.
Litigation. As discussed further in Note (13) Litigation, to our consolidated financial statements, in accordance with the authoritative guidance issued by the FASB on contingencies, we accrue anticipated costs of settlement, damages and losses for claims to the extent specific losses are probable and estimable. We record a receivable for insurance recoveries when such amounts are probable and collectable. In such cases, there may be an exposure to loss in excess of any amounts accrued. If, at the time of evaluation, the loss contingency related to a litigation is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable and, we will expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, we will accrue the minimum amount of the range.
Impact of Recently Issued Accounting Pronouncements
See Item 8 of Part II, Consolidated Financial Statements – Note (1) Summary of Significant Accounting Policies – Recently Issued Accounting Pronouncements.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Foreign Currency Risk. We have several offices outside the United States. Accordingly, we are subject to exposure from adverse movements in foreign currency exchange rates. For the years ended December 31, 2019 and 2018, approximately 74%, and 78%, respectively, of our sales were from outside North America. Not all of these transactions were made in foreign currencies. Our primary exposure is to fluctuations in exchange rates for the U.S. Dollar versus the Euro and the Japanese Yen, and to a lesser extent the Canadian Dollar, the Korean Won and the British Pound. Changes in exchange rates in the functional currency for each geographic area’s revenues are primarily offset by the related expenses associated with such revenues. However, changes in exchange rates of a particular currency could impact the re-measurement of such balances on our balance sheets.
If foreign currency exchange rates were to change adversely by 10% from the levels at December 31, 2019, the effect on our results before taxes from foreign currency fluctuations on our balance sheet would be approximately $1.9 million. The above analysis disregards the possibility that rates for different foreign currencies can move in opposite directions and that losses from one currency may be offset by gains from another currency.
Item 8. Financial Statements and Supplementary Data
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
FalconStor Software, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of FalconStor Software, Inc. (the “Company”) as of December 31, 2019, the related consolidated statements of operations, comprehensive income (loss), stockholders’ deficit and cash flows for the year then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019, and the results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.
We have also audited the adjustment to the financial statements of the Company as of and for the yearfiscal years ended December 31, 2018 to retrospectively apply2020 and 2019 and the reverse stock split described in Note 1 toreviews of the financial statements. In our opinion, such adjustment is appropriate and has been properly applied. We were not engaged to audit, review or apply any procedures to theinterim condensed consolidated financial statements included in the Company’s Form 10-Qs during such fiscal year. These fees also include (i) statutory audits of thecertain Company as of and for the year ended December 31, 2018 other than with respect to the adjustment and, accordingly, we do not express an opinion or any other form of assurance on the financial statements of the Company as of and for the year ended December 31, 2018 taken as a whole.
Explanatory Paragraph - Change in Accounting Principle
As discussed in Note 1 to the financial statements, the Company changed its method of accounting for leases in 2019 due to the adoption of ASU No. 2016-02, Leases (Topic 842), as amended, effective January 1, 2019, using the modified retrospective approach.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted oursubsidiaries, (ii) audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectivenessrequired under Section 404 of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud,Act, and
performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts(iii) consent fees.Audit Related Fees: None.
Tax Fees: Fees billed for tax-related services for certain Company subsidiaries rendered by (i) Marcum in 2020 and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
/s/ Marcum LLP
Marcum llp
We have served as the Company’s auditor since 2019.
Costa Mesa, California
March 19, 2020
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of
Falconstor Software, Inc.
Opinion on the Financial Statements
We have audited, before the effects of the adjustments to retrospectively apply the impact of the reverse stock split described in Note 1, the accompanying consolidated balance sheet of Falconstor Software, Inc. (the Company) as of December 31, 2018, and the related consolidated statements of comprehensive income (loss), stockholders’ deficit, and cash flows for the year ended December 31, 2018, and the related notes, before the effects of the adjustments discussed in Note 1 are not presented herein, (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements, before the effects of the adjustments to retrospectively apply the impact of the reverse stock split described in Note 1, the present fairly, in all material respects, the financial positions of the Company as of December 31, 2018, and the consolidated results of its operations and its cash flows for the year ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
We were not engaged to audit, review, or apply any procedures2019 to the adjustments to retrospectively apply the impact of the reverse stock split described in Note 1 and, accordingly, we do not express an opinion or any other form of assurance about whether such adjustments are appropriate and have been properly applied. Those adjustments were audited by Marcum LLP.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provide a reasonable basis for our opinion.
/s/RBSM LLP
RBSM LLP
March 27, 2019
Larkspur, CA
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
|
| | | | | | | | |
| | | December 31, |
| | | 2019 | | 2018 |
| Assets | | | | |
| Current assets: | | | | |
| Cash and cash equivalents | | $ | 1,475,166 |
| | $ | 3,059,677 |
|
| Accounts receivable, net of allowances | | 3,406,550 |
| | 3,605,411 |
|
| Prepaid expenses and other current assets | | 2,252,372 |
| | 1,909,846 |
|
| Inventory | | 30,014 |
| | 14,885 |
|
| Contract assets | | 749,515 |
| | 637,179 |
|
| Total current assets | | 7,913,617 |
| | 9,226,998 |
|
| Property and equipment, net of accumulated depreciation and amortization | | 369,273 |
| | 433,935 |
|
| Operating lease right-of-use assets, net | | 1,842,254 |
| | — |
|
| Deferred tax assets | | 258,841 |
| | 545,044 |
|
| Software development costs, net | | 27,012 |
| | 88,769 |
|
| Other assets | | 829,335 |
| | 919,609 |
|
| Goodwill | | 4,150,339 |
| | 4,150,339 |
|
| Other intangible assets, net | | 57,718 |
| | 91,334 |
|
| Long-term contract assets | | 327,757 |
| | 516,643 |
|
| Total assets | | $ | 15,776,146 |
| | $ | 15,972,671 |
|
| Liabilities and Stockholders' Deficit | | |
| | |
|
| Current liabilities: | | |
| | |
|
| Accounts payable | | $ | 1,302,290 |
| | $ | 551,389 |
|
| Accrued expenses | | 2,533,824 |
| | 2,879,473 |
|
| Current portion of operating lease liabilities | | 1,655,522 |
| | — |
|
| Short-term loan, net of debt issuance costs and discounts | | 947,501 |
| | — |
|
| Deferred revenue, net | | 5,270,190 |
| | 6,859,592 |
|
| Total current liabilities | | 11,709,327 |
| | 10,290,454 |
|
| Other long-term liabilities | | 745,254 |
| | 1,549,692 |
|
| Notes payable, net of debt issuance costs and discounts | | 2,906,133 |
| | 3,124,827 |
|
| Operating lease liabilities, less current portion | | 624,859 |
| | — |
|
| Deferred tax liabilities | | 432,520 |
| | 297,890 |
|
| Deferred revenue | | 2,085,080 |
| | 1,719,003 |
|
| Total liabilities | | 18,503,173 |
| | 16,981,866 |
|
| Commitments and contingencies (Note 12) | |
|
| |
|
|
| Series A redeemable convertible preferred stock, $.001 par value, 2,000,000 shares authorized, 900,000 shares issued and outstanding, redemption value of $12,262,685 and $11,104,923, respectively | | 11,304,279 |
| | 9,756,706 |
|
| Stockholders' equity: | | |
| | |
|
| Common stock - $.001 par value, 30,000,000 and 800,000,000 shares authorized, respectively, 5,918,733 and 5,872,552 shares issued and outstanding, respectively | | 5,919 |
| | 5,873 |
|
| Additional paid-in capital | | 111,727,888 |
| | 113,243,227 |
|
| Accumulated deficit | | (123,871,853 | ) | | (122,119,899 | ) |
| Accumulated other comprehensive loss, net | | (1,893,260 | ) | | (1,895,102 | ) |
| Total stockholders' deficit | | (14,031,306 | ) | | (10,765,901 | ) |
| Total liabilities and stockholders' deficit | | $ | 15,776,146 |
| | $ | 15,972,671 |
|
See accompanying notes to consolidated financial statements.
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
|
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Revenue: | | | | |
| Product revenue | | $ | 6,767,595 |
| | $ | 5,766,532 |
|
| Support and services revenue | | 9,775,976 |
| | 12,071,374 |
|
| Total revenue | | 16,543,571 |
| | 17,837,906 |
|
| Cost of revenue: | | |
| | |
|
| Product | | 721,122 |
| | 414,149 |
|
| Support and service | | 2,191,865 |
| | 2,563,755 |
|
| Total cost of revenue | | 2,912,987 |
| | 2,977,904 |
|
| Gross profit | | 13,630,584 |
| | 14,860,002 |
|
| Operating expenses: | | |
| | |
|
| Research and development costs | | 3,208,921 |
| | 3,913,337 |
|
| Selling and marketing | | 4,337,054 |
| | 4,453,697 |
|
| General and administrative | | 5,635,273 |
| | 5,278,768 |
|
| Restructuring costs | | 1,104,318 |
| | 1,261,578 |
|
| Total operating expenses | | 14,285,566 |
| | 14,907,380 |
|
| Operating loss | | (654,982 | ) | | (47,378 | ) |
| Interest and other expense | | (604,647 | ) | | (626,048 | ) |
| Loss before income taxes | | (1,259,629 | ) | | (673,426 | ) |
| Income tax expense | | 492,325 |
| | 233,288 |
|
| Net loss | | $ | (1,751,954 | ) | | $ | (906,714 | ) |
| Less: Accrual of Series A redeemable convertible preferred stock dividends | | 1,157,762 |
| | 1,035,977 |
|
| Less: Accretion to redemption value of Series A redeemable convertible preferred stock | | 389,811 |
| | 254,212 |
|
| Less: Deemed dividend on Series A redeemable convertible preferred stock | | — |
| | 2,269,042 |
|
| Net loss attributable to common stockholders | | $ | (3,299,527 | ) | | $ | (4,465,945 | ) |
| Basic net loss per share attributable to common stockholders | | $ | (0.56 | ) | | $ | (4.79 | ) |
| Diluted net loss per share attributable to common stockholders | | $ | (0.56 | ) | | $ | (4.79 | ) |
| Weighted average basic shares outstanding | | 5,900,621 |
| | 933,301 |
|
| Weighted average diluted shares outstanding | | 5,900,621 |
| | 933,301 |
|
See accompanying notes to consolidated financial statements.
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
|
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Net loss | | $ | (1,751,954 | ) | | $ | (906,714 | ) |
| Other comprehensive income, net of applicable taxes: | | |
| | |
|
| Foreign currency translation | | (4,921 | ) | | 59,035 |
|
| Net minimum pension liability | | 6,763 |
| | 4,706 |
|
| Total comprehensive income, net of applicable taxes | | 1,842 |
| | 63,741 |
|
| Total comprehensive loss | | $ | (1,750,112 | ) | | $ | (842,973 | ) |
| Less: Accrual of Series A redeemable convertible preferred stock dividends | | 1,157,762 |
| | 1,035,977 |
|
| Less: Accretion to redemption value of Series A redeemable convertible preferred stock | | 389,811 |
| | 254,212 |
|
| Less: Deemed dividend on Series A redeemable convertible preferred stock | | — |
| | 2,269,042 |
|
| Total comprehensive loss attributable to common stockholders | | $ | (3,297,685 | ) | | $ | (4,402,204 | ) |
See accompanying notes to consolidated financial statements.
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' DEFICIT
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Common Stock Outstanding | | Common Stock | | Additional Paid-In Capital | | Accumulated Deficit | | Treasury Stock | | Accumulated Other Comprehensive Loss, Net | | Total Stockholders' Deficit |
| Balance at December 31, 2017 | | 445,635 |
| | $ | 601 |
| | $ | 112,234,058 |
| | $ | (130,930,284 | ) | | $ | (570,329 | ) | | $ | (1,958,843 | ) | | $ | (21,224,797 | ) |
| Net income | | | |
|
| |
|
| | (906,714 | ) | |
|
| |
|
| | (906,714 | ) |
| Warrants issued | | |
|
|
|
| 5,213,928 |
|
|
|
|
|
|
|
|
|
|
| 5,213,928 |
|
| Warrants cancelled | | |
|
|
|
| (623,920 | ) |
|
|
|
|
|
|
|
|
|
| (623,920 | ) |
| Warrants exercised | | 5,426,917 |
|
| 5,272 |
|
| (86,280 | ) |
|
|
|
| 570,329 |
|
|
|
|
| 489,321 |
|
| Share-based compensation | | | |
|
| | 64,672 |
| |
|
| |
|
| |
|
| | 64,672 |
|
| Accretion of Series A redeemable convertible preferred stock | | | |
|
| | (254,212 | ) | |
|
| |
|
| |
|
| | (254,212 | ) |
| Dividends on Series A redeemable convertible preferred stock | | | |
|
| | (1,035,977 | ) | |
|
| |
|
| |
|
| | (1,035,977 | ) |
| Deemed dividends on Series A redeemable convertible preferred stock | | |
|
|
|
| (2,269,042 | ) |
|
|
|
|
|
|
|
|
|
| (2,269,042 | ) |
| Foreign currency translation | | | |
|
| |
|
| |
|
| |
|
| | 59,035 |
| | 59,035 |
|
| Net minimum pension liability | | | |
|
| |
|
| |
|
| |
|
| | 4,706 |
| | 4,706 |
|
| Cumulative effect of adoption of ASC 606 | | |
|
|
|
|
|
|
| $ | 9,717,099 |
|
|
|
|
|
|
|
| $ | 9,717,099 |
|
| Balance at December 31, 2018 | | 5,872,552 |
| | $ | 5,873 |
| | $ | 113,243,227 |
| | $ | (122,119,899 | ) | | $ | — |
| | $ | (1,895,102 | ) | | $ | (10,765,901 | ) |
| Net loss | | | |
|
| |
|
| | (1,751,954 | ) | |
|
| |
|
| | (1,751,954 | ) |
| Restricted stock issued | | 31,000 |
| | 31 |
| | (31 | ) |
|
|
|
|
|
|
|
|
|
| — |
|
| Warrants exercised | | 15,181 |
| | 15 |
| | (15 | ) | | | |
|
| | | | — |
|
| Share-based compensation | | | |
|
| | 32,280 |
| |
|
| |
|
| |
|
| | 32,280 |
|
| Accretion of Series A redeemable convertible preferred stock | | | |
|
| | (389,811 | ) | |
|
| |
|
| |
|
| | (389,811 | ) |
| Dividends on Series A redeemable convertible preferred stock | | | |
|
| | (1,157,762 | ) | |
|
| |
|
| |
|
| | (1,157,762 | ) |
| Foreign currency translation | | | |
|
| |
|
| |
|
| |
|
| | (4,921 | ) | | (4,921 | ) |
| Net minimum pension liability | | | |
|
| |
|
| |
|
| |
|
| | 6,763 |
| | 6,763 |
|
| Balance at December 31, 2019 | | 5,918,733 |
| | $ | 5,919 |
| | $ | 111,727,888 |
| | $ | (123,871,853 | ) | | $ | — |
| | $ | (1,893,260 | ) | | $ | (14,031,306 | ) |
See accompanying notes to consolidated financial statements.
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS |
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Cash flows from operating activities: | | | | |
| Net loss | | $ | (1,751,954 | ) | | $ | (906,714 | ) |
| Adjustments to reconcile net loss to net cash used in operating activities: | | |
| | |
|
| Depreciation and amortization | | 399,798 |
| | 643,639 |
|
| Share-based payment compensation | | 32,280 |
| | 64,672 |
|
| Provision for returns and doubtful accounts | | 148,624 |
| | (192,430 | ) |
| Amortization of debt discount on notes payable | | 273,521 |
| | 202,195 |
|
| Amortization of right of use assets | | 1,049,479 |
| | — |
|
| Deferred income tax provision | | 412,445 |
| | 267,760 |
|
| Changes in operating assets and liabilities: | | |
| | |
|
| Accounts receivable | | 54,857 |
| | 834,038 |
|
| Prepaid expenses and other current assets | | (337,712 | ) | | (250,662 | ) |
| Contract assets | | 76,549 |
| | 2,003,433 |
|
| Inventory | | (14,305 | ) | | (15,093 | ) |
| Other assets | | 1,403 |
| | 6,045 |
|
| Accounts payable | | 730,324 |
| | (505,724 | ) |
| Accrued expenses and other long-term liabilities | | (413,998 | ) | | (7,942 | ) |
| Deferred revenue | | (1,238,212 | ) | | (3,654,184 | ) |
| Operating lease liabilities | | (1,322,976 | ) | | — |
|
| Net cash used in operating activities | | (1,899,877 | ) | | (1,510,967 | ) |
| Cash flows from investing activities: | | |
| | |
|
| Purchases of property and equipment | | (171,680 | ) | | (95,873 | ) |
| Capitalized software development costs | | — |
| | (32,919 | ) |
| Security deposits | | 84,678 |
| | 58,551 |
|
| Purchase of intangible assets | | (55,862 | ) | | (74,840 | ) |
| Net cash used in investing activities | | (142,864 | ) | | (145,081 | ) |
| Cash flows from financing activities: | | |
| | |
|
| Proceeds from exercise of stock warrants | | — |
| | 489,321 |
|
| Proceeds from issuance of short-term debt, net of issuance costs | | 944,607 |
| | — |
|
| Proceeds from issuance of long-term debt, net of issuance costs | | — |
| | 3,271,019 |
|
| Payments of long term-debt | | (489,321 | ) | | — |
|
| Net cash provided by financing activities | | 455,286 |
| | 3,760,340 |
|
| Effect of exchange rate changes on cash and cash equivalents | | 2,944 |
| | (56,087 | ) |
| Net increase (decrease) in cash and cash equivalents | | (1,584,511 | ) | | 2,048,205 |
|
| Cash and cash equivalents, beginning of year | | 3,059,677 |
| | 1,011,472 |
|
| Cash and cash equivalents, end of year | | $ | 1,475,166 |
| | $ | 3,059,677 |
|
| Supplemental Disclosures: | | | | |
| Cash paid for income taxes, net | | $ | — |
| | $ | — |
|
| Non-cash financing activities: | | | | |
| Undistributed Series A redeemable convertible preferred stock dividends | | $ | 1,547,573 |
| | $ | 1,290,189 |
|
| Discount on Preferred Stock | | $ | — |
| | $ | 1,602,429 |
|
| Cash paid for interest | | $ | 237,176 |
| | $ | 103,818 |
|
| Discount on Notes Payable | | $ | — |
| | $ | 735,512 |
|
| Deemed dividend | | $ | — |
| | $ | 2,269,042 |
|
| Warrants issued | | $ | — |
| | $ | 4,590,008 |
|
See accompanying notes to consolidated financial statements.
FALCONSTOR SOFTWARE, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2019
(1) Summary of Significant Accounting Policies
| |
(a) | The Company and Nature of Operations |
FalconStor Software, Inc., a Delaware Corporation (the "Company" or "FalconStor"), is a leading storage software company offering a converged data services software platform that is hardware agnostic. The Company develops, manufactures and sells data migration, business continuity, disaster recovery, optimized backup and de-duplication solutions and provides the related maintenance, implementation and engineering services.
As of December 31, 2019, we had a working capital deficiency of $3.8 million, which is inclusive of current deferred revenue of $5.3 million, and a stockholders' deficit of $14.0 million. During the year ended December 31, 2019, while we had net loss of $1.8 million and negative cash flow from operations of $1.9 million. Our cash and cash equivalents at December 31, 2019 was $1.5 million, a decrease of $1.6 million as compared to December 31, 2018.
The Company's ability to continue as a going concern for the next twelve months from the issuance of the Company's Annual Report on Form 10K, depends on its ability to execute its business plan, increase revenue and billings and reduce expenditures. In the third quarter of 2019, the Company adopted a plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis (the "2019 Plan"). In connection with the 2019 Plan, the Company eliminated 23 positions worldwide, implemented tighter expense controls, ceased non-core activities and downsized several facilities. As of December 31, 2019, the 2019 Plan is considered to be substantially completed.
On December 27, 2019, the Company entered into Amendment No. 1 to Amended and Restated Term Loan Credit Agreement (the “Amendment”), by and among the Company, certain of the Company’s affiliates in their capacities as guarantors, HCP-FVA, LLC (“HCP-FVA”) as administrative agent for the lenders party thereto (the “Lenders”), ESW Capital, LLC (“ESW”), as co-agent, and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company (the “2019 Term Loan”). The Amendment also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced.
In connection with the initial advance of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded $378,439 and Michael Kelly funded $1,561. HCP-FVA is an affiliate of Hale Capital Partners, LP, the Company’s largest stockholder, and an affiliate of a director of the Company, Martin Hale. ESW is a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
There is no assurance that the Company will be successful in generating sufficient bookings, billings, revenue or continue to reduce operating costs or that the Company will be able to obtain financing or that such financing will be on favorable terms. Any such financing would be dilutive to our shareholders. Failure to generate sufficient revenue, billings, control or further reduce expenditures and/or the inability to obtain financing will result in an inability of the Company to continue as a going concern. Subject to the foregoing, management believes that, based on projected cash flows and additional financing, the Company will have sufficient capital and liquidity to fund its operations for at least one year from the date of issuance of the accompanying interim financial statements.
We believe that our cash flows from operations and existing cash on hand are sufficient to conduct our planned operations and meet our contractual requirements through April 2, 2021.
| |
(c) | Revision of Previously Issued Financial Statements |
During the year ended December 31, 2019, management identified an immaterial accounting error in its December 31, 2018 financial statements. As a result, the Company has revised its consolidated balance sheet as of December 31, 2018 to reflect these amounts in the 2018 financial statements, as they appear in the Company’s Annual Report on Form 10-K for the year ended December 31, 2019. The immaterial accounting error is related to the beginning balance adjustment to deferred revenue and accumulated deficit in connection with the adoption of ASC 606, Revenue from Contracts with Customers.
There was no impact of the correction on the previously issued consolidated statement of operations or on the consolidated statements of cash flows for the year ended December 31, 2018.
The impact of the error on the consolidated balance sheet as of December 31, 2018 is presented below.
|
| | | | | | | | | |
| | | As of December 31, 2018 |
| | | Previously Reported | | Adjustment | | Revised |
| Balance Sheet: | | | | | | |
| Long-term deferred revenue | | 2,506,898 |
| | (787,895 | ) | | 1,719,003 |
|
| Total liabilities | | 17,769,761 |
| | (787,895 | ) | | 16,981,866 |
|
| Accumulated deficit | | (122,907,794 | ) | | 787,895 |
| | (122,119,899 | ) |
The impact of the error on the consolidated statements of stockholders' deficit is presented below.
|
| | | | | | | | | |
| | | As Previously Reported | | Adjustment | | Revised |
| Statement of Stockholders' Deficit: | | | | | | |
| Cumulative effect of adoption of ASC 606 for the year ended December 31, 2018 | | 8,929,204 |
| | 787,895 |
| | 9,717,099 |
|
| Accumulated deficit at December 31, 2018 | | (122,907,794 | ) | | 787,895 |
| | (122,119,899 | ) |
| Total stockholders' deficit at December 31, 2018 | | (11,553,796 | ) | | 787,895 |
| | (10,765,901 | ) |
On August 8, 2019, the Company effected a 100-for-1 reverse stock split of its issued and outstanding common stock. In connection with the reverse stock split, the Company also decreased its authorized capital to 32,000,000 shares, consisting of 30,000,000 shares of common stock and 2,000,000 shares of preferred stock. The par value of the Company's common stock was not adjusted as a result of the reverse stock split. All of the share and per share information presented in the accompanying financial statements have been adjusted to reflect, unless otherwise indicated, the reverse common stock split on a retroactive basis for all periods and as of all dates presented.
| |
(e) | Principles of Consolidation |
The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company’s significant estimates include those related to revenue recognition, accounts receivable allowances, share-based payment compensation, valuation of derivatives, capitalizable software development costs, valuation of goodwill and other intangible assets and income taxes. Actual results could differ from those estimates.
The financial market volatility in many countries where the Company operates has impacted and may continue to impact the Company’s business. Such conditions could have a material impact on the Company’s significant accounting estimates discussed above.
| |
(g) | Fair Value of Financial Instruments |
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. To increase the comparability of fair value measurements, a three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies, is as follows:
Level 1—Valuations based on quoted prices for identical assets and liabilities in active markets.
Level 2—Valuations based on observable inputs other than quoted prices included in Level 1, such as quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data.
Level 3—Valuations based on unobservable inputs reflecting our own assumptions, consistent with reasonably available assumptions made by other market participants. These valuations require significant judgment.
As of December 31, 2019 and 2018, the fair value of the Company’s financial instruments including cash and cash equivalents, accounts receivable, accounts payable and accrued expenses approximated carrying value due to the short maturity of these instruments. See Note (3) Fair Value Measurements for additional information.
| |
(h) | Derivative Financial Instruments |
The Company does not use derivative instruments to hedge exposures to cash flow, market or foreign currency risk. Terms of convertible preferred stock are reviewed to determine whether or not they contain embedded derivative instruments that are required under Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") 815 “Derivatives and Hedging” (“ASC 815”) to be accounted for separately from the host contract, and recorded on the balance sheet at fair value. The fair value of derivatives are required to be revalued at each reporting date, with corresponding changes in fair value recorded in current period operating results. See Note (12) Derivative Financial Instruments for additional information.
| |
(i) | Revenue from Contracts with Customers and Associated Balances |
The Company derives its revenue from sales of its products, support and services. Product revenue consists of the Company’s software integrated with industry standard hardware and sold as complete turn-key integrated solutions, as stand-alone software applications or sold on a subscription or consumption basis. Depending on the nature of the arrangement revenue, related to turn-key solutions and stand-alone software applications are generally recognized upon shipment and delivery of license keys. For certain arrangements revenue is recognized based on usage or ratably over the term of the arrangement. Support and services revenue consists of both maintenance revenues and professional services revenues. Revenue is recorded net of applicable sales taxes.
In accordance with the authoritative guidance issued by the FASB on revenue recognition, the Company recognizes revenue when persuasive evidence of an arrangement exists, the fee is fixed or determinable, delivery has occurred, and collection of the resulting receivable is deemed probable. Products delivered to a customer on a trial basis are not recognized as revenue until the trial period has ended and acceptance has occurred by the customer. Reseller and distributor customers typically send the Company a purchase order when they have an end user identified.
Nature of Products and Services
Licenses for on-premises software provide the customer with a right to use the software as it exists when made available to the customer. Customers may purchase perpetual licenses or subscribe to licenses, which provide customers with the same functionality and differ mainly in the duration over which the customer benefits from the software. Revenue from distinct on-premises licenses is recognized upfront at the point in time when the software is made available to the customer. Revenue allocated to software maintenance and support services is recognized ratably over the contractual support period.
Hardware products consist primarily of servers and associated components and function independently of the software products and as such as accounted for as separate performance obligations. Revenue allocated to hardware maintenance and support services is recognized ratably over the contractual support period.
Professional services are primarily related to software implementation services and associated revenue is recognized upon customer acceptance.
Contract Balances
Timing of revenue recognition may differ from the timing of invoicing to customers. The Company records a contract asset or receivable when revenue is recognized prior to invoicing, or unearned revenue when revenue is recognized subsequent to invoicing. For perpetual licenses with multi-year product maintenance agreements, the Company generally invoices customers at the beginning of the coverage period. For multi-year subscription licenses, the Company generally invoices customers annually at the beginning of each annual coverage period. The Company records a contract asset related to revenue recognized for multi-year on-premises licenses as its right to payment is conditioned upon providing product support and services in future years.
As of December 31, 2019 and 2018, accounts receivable, net of allowance for doubtful accounts, was $3.4 million and $3.6 million, respectively. Our allowance for doubtful accounts on accounts receivable was $0.2 million as of December 31, 2019 and 2018. As of December 31, 2019, short and long-term contract assets, net of allowance for doubtful accounts, was $1.1 million and $1.2 million, respectively. Our allowance for doubtful accounts on contract assets as of December 31, 2019 was nil.
The allowances for doubtful accounts reflect the Company’s best estimates of probable losses inherent in the accounts receivable and contract assets’ balances. The Company determines the allowances based on known troubled accounts, historical experience, and other currently available evidence. Write-offs in the accounts receivable and contract assets allowance accounts during the years ended December 31, 2019 and 2018 were $0.0 million and $0.1 million, respectively.
Deferred revenue is comprised mainly of unearned revenue related maintenance and technical support on term and perpetual licenses. Maintenance and technical support revenue is recognized ratably over the coverage period. Deferred revenue also includes contractsOther Fees: Fees billed for professional services
rendered by Marcum related to
be performed incertain proxy disclosure calculations for 2020 and 2019.The approximate fees for each category were as follows:| | | Years Ended December 31, |
| Description | | 2020 | | 2019 |
| Audit Fees | | $ | 127,720 | | | $ | 169,917 | |
| Audit Related Fees | | $ | — | | | $ | — | |
| Tax Fees | | $ | — | | | $ | — | |
| All Other Fees | | $ | — | | | $ | — | |
The Audit Committee has considered whether the future which are recognized as revenue when the company delivers the related service pursuant to the termsprovision by Marcum of the customer arrangement.
Changes in deferred revenue were as follows:
|
| | | |
| Twelve Months Ended December 31, 2019 | |
| Balance at December 31, 2018 | 9,366,490 |
|
| Deferral of revenue | 14,626,933 |
|
| Recognition of revenue | (16,543,571 | ) |
| Change in reserves | (94,582 | ) |
| Balance at December 31, 2019 | $ | 7,355,270 |
|
Deferred revenue includes invoiced revenue allocated to remaining performance obligations that has not yet been recognized and will be recognized as revenue in future periods. Deferred revenue was $7.4 million as of December 31, 2019, of which the Company expects to recognize approximately 71.7% of the revenue over the next 12 months and the remainder thereafter.
Approximately $2.0 million of revenue is expected to be recognized from remaining performance obligations for unbilled support and services as of December 31, 2019. We expected to recognize revenue on approximately 32% of these remaining performance obligations over the next twelve months, with the balance recognized thereafter.
Payment terms and conditions varycovered by contract type, although terms generally include a requirement of payment within 30 to 90 days. In instances where the timing of revenue recognition differs from the timing of invoicing, the Company has determined its contracts generally do not include a significant financing component. The primary purpose of the Company’s invoicing terms is to provide customers with simplified and predictable ways of purchasing its products and services, not to receive financing from our customers or to provide customers with financing. Examples include invoicing at the beginning of a subscription term with maintenance and support revenue recognized ratably over the contract period, and multi-year on-premises licenses that are invoiced annually with product revenue recognized upon delivery.
Significant Judgments
The Company’s contracts with customers often include promises to transfer multiple products and services to a customer. Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment.
Judgment is required to determine the standalone selling price (“SSP”) for each distinct performance obligation. For products and services aside from maintenance and support, the Company estimates SSP by adjusting the list price by historical discount
percentages. SSP for software and hardware maintenance and support fees is based on the stated percentages of the fees charged forother than the respective products.
The Company’s perpetualaudit fees was compatible with maintaining Marcum’s independence and term software licenses have significant standalone functionality and therefore revenue allocated to these performance obligations are recognized at a point in time upon electronic delivery of the download link and the license keys.
Product maintenance and support services are satisfied over time as they are stand-ready obligations throughout the support period. As a result, revenues associated with maintenance services are deferred and recognized as revenue ratably over the term of the contract.
Revenues associated with professional services are recognized at a point in time upon customer acceptance.
Disaggregation of Revenue
Please refer to the consolidated statements of operations and note 16, segment reporting and concentrations, for discussion on revenue disaggregation by product type and by geography. The Company believes this level of disaggregation sufficiently depicts how the nature, amount, timing and uncertainty of our revenue and cash flows are affected by economic factors.
Assets Recognized from Costs to Obtain a Contract with a Customer
The Company recognizes an asset for the incremental costs of obtaining a contract with a customer ifthat it expects the benefit of those costs to be longer than one year. The Company has determined that its sales commission program meets the requirements for cost capitalization. Total capitalized costs to obtain a contract were immaterial during the periods presented and are included in other current and long-term assets on our consolidated balance sheets. The Company applies a practical expedient to expense costs as incurred for costs to obtain a contract with a customer when the amortization period would have been one year or less.
was compatible.PART IV
| |
(j)Item 15. | LeasesExhibits and Financial Statement Schedules |
The Company follows the guidance for leasing accounting in accordance with ASC 842, which was adopted as of January 1, 2019, referSee accompanying Index to the
Recently Adopted Accounting Pronouncements section below for more information about the adoption of the pronouncement.
We have entered into operating leases for our various facilities. We determine if an arrangement is a lease at inception. Operating leases are included in Right-of-Use ("ROU") assets, and lease liability obligations in our condensed consolidated balance sheets. ROU assets represent our right to use an underlying asset for the lease term and lease liability obligations represent our obligation to make lease payments arising from the lease. ROU assets and liabilities are recognized at commencement date based on the present value of lease payments over the lease term. We have lease agreements with lease and non-lease components and account for such components as a single lease component. As most of our leases do not provide an implicit rate, we estimated our incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. We use the implicit rate when readily determinable. The ROU asset also includes any lease payments made and excludes lease incentives and lease direct costs. Our lease terms may include options to extend or terminate the lease. Such extended terms have been considered in determining the ROU assets and lease liability obligations when it is reasonably certain that we will exercise that option. Lease expense is recognized on a straight-line basis over the lease term.
Right of Use Assets and Liabilities
We have various operating leases for office facilities that expire through 2021. Below is a summary of our right of use assets and liabilities as of December 31, 2019.
|
| | | |
| Right of use assets | $ | 1,842,254 |
|
| Lease liability obligations, current | 1,655,522 |
|
| Lease liability obligations, less current portion | 624,859 |
|
| Total lease liability obligations | $ | 2,280,381 |
|
| Weighted-average remaining lease term | 1.36 |
|
| Weighted-average discount rate | 5.99 | % |
Our operating lease costs for the year ended December 31, 2019 were as follows:
|
| | | |
| | Year Ended December 31, 2019 |
| Components of lease expense: | |
| Operating lease cost | 2,495,865 |
|
| Sublease income | (623,776 | ) |
| Net lease cost | $ | 1,872,089 |
|
During the year ended December 31, 2019, operating cash flows from operating leases was approximately $1.3 million. During the year ended December 31, 2019, we had a non-cash transaction for lease liabilities arising from obtaining right-of-use assets of $3.1 million for the year ended December 31, 2019.
Approximate future minimum lease payments for our right of use assets over the remaining lease periods as of December 31, are as follows:
|
| | |
| 2020 | 1,754,189 |
|
| 2021 | 639,526 |
|
| Total minimum lease payments | 2,393,715 |
|
| Less interest | (113,334 | ) |
| Present value of lease liabilities | 2,280,381 |
|
| |
(k) | Property and Equipment |
Property and equipment are recorded at cost. Depreciation is recognized using the straight-line method over the estimated useful lives of the assets (3 to 7 years). Leasehold improvements are amortized on a straight-line basis over the terms of the respective leases or over their estimated useful lives, whichever is shorter.
| |
(l) | Goodwill and Other Intangible Assets |
Goodwill represents the excess of the purchase price over the estimated fair value of net tangible and identifiable intangible assets acquired in business combinations. The Company has not amortized goodwill related to its acquisitions, but instead tests the balance for impairment. The Company evaluates goodwill for impairment annually or more frequently when an event occurs or circumstances change that indicate that the carrying value may not be recoverable. The Company tests goodwill for impairment by first comparing the book value of net assets to the fair value of the reporting unit. If the fair value is determined to be less than the book value or qualitative factors indicate that it is more likely than not that goodwill is impaired, a second step is performed to compute the amount of impairment as the difference between the estimated fair value of goodwill and the carrying value.
The fair value of the Company's single reporting unit for purposes of its goodwill impairment test exceeded its carrying value as of December 31, 2019 and 2018 and thus the Company determined there was no impairment of goodwill. As of December 31, 2019 and 2018, the Company's single reporting unit for purposes of its goodwill impairment test had a negative carrying value and thus the Company determined there was no impairment of goodwill.
Identifiable intangible assets include (i) assets acquired through business combinations, which include customer contracts and intellectual property, and (ii) patents amortized over three years using the straight-line method.
The gross carrying amount and accumulated amortization of goodwill and other intangible assets as of December 31, 2019 and 2018 are as follows:
|
| | | | | | | | |
| | | December 31, 2019 | | December 31, 2018 |
| Goodwill | | $ | 4,150,339 |
| | $ | 4,150,339 |
|
| Other intangible assets: | | |
| | |
|
| Gross carrying amount | | $ | 3,947,103 |
| | $ | 3,891,241 |
|
| Accumulated amortization | | (3,889,385 | ) | | (3,799,907 | ) |
| Net carrying amount | | $ | 57,718 |
| | $ | 91,334 |
|
For the years ended December 31, 2019 and 2018, amortization expense was $89,478 and $125,136, respectively. As of December 31, 2019, amortization expense for existing identifiable intangible assets is expected to be $57,718 for the year ended December 31, 2020. Such assets will be fully amortized at December 31, 2020.
| |
(m) | Software Development Costs and Purchased Software Technology |
In accordance with the authoritative guidance issued by the FASB on costs of software to be sold, leased, or marketed, costs associated with the development of new software products and enhancements to existing software products are expensed as incurred until technological feasibility of the product has been established. Based on the Company’s product development process, technological feasibility is established upon completion of a working model. Amortization of software development costs is recorded at the greater of the straight-line basis over the product’s estimated life, or the ratio of current period revenue of the related products to total current and anticipated future revenue of these products. The gross carrying amount and accumulated amortization of software development costs as of December 31, 2019 and 2018 are as follows:
|
| | | | | | | | |
| | | December 31, 2019 | | December 31, 2018 |
| Software development costs: | | | | |
| Gross carrying amount | | $ | 2,950,132 |
| | $ | 2,950,132 |
|
| Accumulated amortization | | (2,923,120 | ) | | (2,861,363 | ) |
| Software development costs, net | | $ | 27,012 |
| | $ | 88,769 |
|
During the years ended December 31, 2019 and 2018, the Company recorded $61,756 and $223,564, respectively, of amortization expense related to capitalized software costs. As of December 31, 2019, amortization expense for software development costs is expected to be $7,734, $6,583, $6,583 and $6,113 for the years ended December 31, 2020, 2021, 2022 and 2023, respectively. Such assets will be fully amortized at December 31, 2023.
The Company records income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be realized or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. In determining the period in which related tax benefits are realized for financial reporting purposes, excess share-based compensation deductions included in net operating losses are realized after regular net operating losses are exhausted.
The Company accounts for uncertain tax positions in accordance with the authoritative guidance issued by the FASB on income taxes, which addresses the determination of whether tax benefits claimed or expected to be claimed on a tax return, should be recorded in the financial statements. Pursuant to the authoritative guidance, the Company may recognize the tax benefit from an uncertain tax position only if it meets the “more likely than not” threshold that the position will be sustained on examination by the taxing authority, based on the technical merits of the position or under statute expirations. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. In addition, the authoritative guidance addresses de-recognition, classification, interest and penalties on income taxes, accounting in interim periods, and also requires increased disclosures. See Note (5) Income TaxesTaxes for additional information.
The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. If the sum of the expected future cash flows, undiscounted and without interest, is less than the carrying amount of the asset, an impairment loss is recognized as the amount by which the carrying amount of the asset exceeds its fair value.
The Company accounts for share-based payments in accordance with the authoritative guidance issued by the FASB on share-based compensation, which establishes the accounting for transactions in which an entity exchanges its equity instruments for goods or services. Under the provisions of the authoritative guidance, share-based compensation expense is measured at the grant date, based on the fair value of the award, and is recognized as an expense over the requisite employee service period (generally the vesting period), net of actual forfeitures. For share-based payment awards that contain performance criteria share-based compensation, expense is recorded when the achievement of the performance condition is considered probable of achievement and is recorded on a straight-line basis over the requisite service period. If such performance criteria are not met, no compensation cost is recognized and any recognized compensation cost is reversed. The Company estimates the fair value of share-based payments using the Black-Scholes option-pricing model or the Monte Carlo simulation model if a market condition exists. Share-based compensation expense for a share-based payment award with a market condition is recorded on a straight-line basis over the longer of the explicit service period or the service period derived from the Monte Carlo simulation. Additionally, share-based awards to non-employees are expensed over the period in which the related services are rendered at their fair value. All share-based awards are expected to be fulfilled with new shares of common stock.
Assets and liabilities of foreign operations are translated at rates of exchange at the end of the period, while results of operations are translated at average exchange rates in effect for the period. Gains and losses from the translation of foreign assets and liabilities from the functional currency of the Company’s subsidiaries into the U.S. dollar are classified as accumulated other comprehensive loss in stockholders’ deficit. Gains and losses from foreign currency transactions are included in the consolidated statements of operations within interest and other loss, net. During the years ended December 31, 2019 and 2018, foreign currency transactional losses totaled approximately $158,148 and $207,242, respectively.
| |
(r) | Earnings Per Share (EPS) |
Basic EPS is computed based on the weighted average number of shares of common stock outstanding. Diluted EPS is computed based on the weighted average number of common shares outstanding increased by dilutive common stock equivalents, attributable to stock option awards, restricted stock awards and Series A redeemable convertible preferred stockoutstanding.
The following represents the common stock equivalents that were excluded from the computation of diluted shares outstanding because their effect would have been anti-dilutive for the years ended December 31, 2019 and 2018:
|
| | | | | | |
| | | Year Ended December 31, |
| | | 2019 | | 2018 |
| Stock options, warrants and restricted stock | | 1,263,009 |
| | 29,973 |
|
| Series A redeemable convertible preferred stock | | 87,815 |
| | 87,815 |
|
| Total anti-dilutive common stock equivalents | | 1,350,824 |
| | 117,788 |
|
The following represents a reconciliation of the numerators and denominators of the basic and diluted EPS computation:
|
| | | | | | | | |
| | | Year Ended December 31, |
| | | 2019 | | 2018 |
| Numerator: |
|
|
|
|
| Net loss |
| $ | (1,751,954 | ) | | $ | (906,714 | ) |
| Effects of Series A redeemable convertible preferred stock: |
| | | |
| Less: Accrual of Series A redeemable convertible preferred stock dividends |
| 1,157,762 |
| | 1,035,977 |
|
| Less: Accretion to redemption value of Series A redeemable convertible preferred stock |
| 389,811 |
| | 254,212 |
|
| Less: Deemed dividend on Series A redeemable convertible preferred stock | | $ | — |
| | $ | 2,269,042 |
|
| Net loss attributable to common stockholders |
| $ | (3,299,527 | ) | | $ | (4,465,945 | ) |
| |
| | | |
| Denominator: |
| | | |
| Weighted average basic shares outstanding |
| 5,900,621 |
| | 933,301 |
|
| Weighted average diluted shares outstanding |
| 5,900,621 |
| | 933,301 |
|
| |
| | | |
| EPS: |
| | | |
| Basic net loss per share attributable to common stockholders |
| $ | (0.56 | ) | | $ | (4.79 | ) |
| Diluted net loss per share attributable to common stockholders |
| $ | (0.56 | ) | | $ | (4.79 | ) |
As of December 31, 2019 and 2018, the Company did not have any cost-method investments.
The Company accounts for treasury stock under the cost method and includes treasury stock as a component of stockholders’ deficit.
(u) Recently Adopted Accounting Pronouncements
In February 2016, the Financial Accounting Standards Board (the "FASB") issued ASU No. 2016-02, which establishes a right-of-use (ROU) model that requires a lessee to record a right of use (ROU) asset and a lease liability on the balance sheet for most leases. In July 2018, the FASB issued ASU No. 2018-11, which amends the guidance to add a method of adoption whereby the issuer may elect to recognize a cumulative effect adjustment at the beginning of the period of adoption. ASU No. 2018-11 does not require comparative period financial information to be adjusted. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. ASU 2016-02 defines a lease as a contract, or part of a contract, that conveys the right to control the use of identified property, plant or equipment for a period of time in exchange for consideration. To determine whether a contract conveys the right to control the use of the identified asset for a period of time, the customer has to have both (1) the right to obtain substantially all of the economic benefits from the use of the identified asset and (2) the right to direct the use of the identified asset, a contract does not contain an identified asset if the supplier has a substantive right to substitute such asset ("the leasing criteria"). We have determined that our real estate leases with terms in excess of one year and which do not include an option to purchase the underlying asset, meet the leasing criteria. On January 1, 2019, we adopted ASU No. 2016-02, applying the package of practical expedients to leases that commenced before the effective date whereby we elected to not reassess the following: (i) whether any expired or existing contracts contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases. We elected to apply the transition provisions as of January 1, 2019, the date of adoption, and we recorded lease ROU assets of $2.9 million and related liabilities of $3.6 million million on our balance sheet related to our operating leases. We have no financing leases. There was no change to our condensed consolidated statements of operations or cash flows.
In July 2018, the FASB issued ASU 2018-09, Codification Improvements. The amendments in ASU 2018-09 affect a wide variety of Topics in the FASB Codification and apply to all reporting entities within the scope of the affected accounting guidance. The Company has evaluated ASU 2018-09 in its entirety and determined that the amendments related to Topic 718-740, Compensation-Stock Compensation-Income Taxes, are the only provisions that currently apply to the Company. The amendments in ASU 2018-09 related to Topic 718-740, Compensation-Stock Compensation-Income Taxes, clarify that an entity should recognize
excess tax benefits related to stock compensation transactions in the period in which the amount of the deduction is determined.On January 1, 2019, we adopted ASU 2018-09 and it did not have a material impact on the Company's Consolidated Financial Statements.
In June 2018, the FASB issued ASU 2018-07, Compensation - Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting, to expand the scope of Topic 718 to include share-based payment transactions for acquiring goods and services from nonemployees and supersedes the guidance in Subtopic 505-50, Equity - Equity-Based Payments to Non-Employees. Under ASU 2018-07, equity-classified nonemployee share-based payment awards are measured at the grant date fair value on the grant date. The probability of satisfying performance conditions must be considered for equity-classified nonemployee share-based payment awards with such conditions. On January 1, 2019, we adopted ASU 2018-07 and it did not have a material impact on the Company's Condensed Consolidated Financial Statements.
In February 2018, the FASB issued ASU No. 2018-02, Income Statement - Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income, which provides entities the option to reclassify tax effects stranded in accumulated other comprehensive income as a result of the 2017 Tax Cuts and Jobs Act (“the Tax Act”) to retained earnings. On January 1, 2019, we adopted ASU 2018-02 and it did not have a material impact on the Company's Condensed Consolidated Financial Statements.
(v) Recently Issued Accounting Pronouncements
In August 2018, the FASB issued ASU 2018-14, Compensation—Retirement Benefits—Defined Benefit Plans—General: Disclosure Framework—Changes to the Disclosure Requirements for Defined Benefit Plans. The objective of the guidance is to improve the effectiveness of disclosure requirements on defined benefit pension plans and other postretirement plans. The guidance is effective for fiscal years beginning after December 15, 2020. The Company does not expect adoption of the new standard to have a material impact on its Condensed Consolidated Financial Statements.
In December 2019, the FASB released ASU 2019-12, which affects general principles within Topic 740, Income Taxes. The amendments of ASU 2019-12 are meant to simplify and reduce the cost of accounting for income taxes. The amendments in ASU 2019-12 are effective for public business entities for fiscal years beginning after December 15, 2020, including interim periods therein. Early adoption of the standard is permitted, including adoption in interim or annual periods for which financial statements have not yet been issued. The Company does not expect adoption of the new standard to have a material impact on its Condensed Consolidated Financial Statements.
(2) Property and Equipment
Property and equipment consist of the following:
|
| | | | | | | | |
| | | December 31, 2019 | | December 31, 2018 |
| Computer hardware and software | | $ | 16,418,916 |
| | $ | 16,345,218 |
|
| Furniture and equipment | | 601,928 |
| | 601,938 |
|
| Leasehold improvements | | 1,715,041 |
| | 1,681,606 |
|
| Property and equipment, gross | | 18,735,885 |
| | 18,628,762 |
|
| Less accumulated depreciation and amortization | | (18,366,612 | ) | | (18,194,827 | ) |
| Property and equipment, net | | $ | 369,273 |
| | $ | 433,935 |
|
During the years ended December 31, 2019 and December 31, 2018, the Company did not write off fixed assets or related accumulated depreciation.
Depreciation and amortization expense was $248,564 and $294,939 in 2019 and 2018, respectively.
(3) Fair Value Measurements
The Company measures its cash equivalents, marketable securities and derivative instruments at fair value. Fair value is an exit price, representing the amount that would be received on the sale of an asset or that would be paid to transfer a liability in an orderly transaction between market participants. As a basis for considering such assumptions, the Company utilizes a three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies in measuring fair value.
Fair Value Hierarchy
The methodology for measuring fair value specifies a hierarchy of valuation techniques based upon whether the inputs to those valuation techniques reflect assumptions other market participants would use based upon market data obtained from independent sources (observable inputs) or reflect the Company’s own assumptions of market participant valuation (unobservable inputs). As a result, observable and unobservable inputs have created the following fair value hierarchy:
Level 1 – Quoted prices in active markets that are unadjusted and accessible at the measurement date for identical, unrestricted assets or liabilities. At December 31, 2019 and 2018, the Level 1 category included money market funds and commercial paper, which are included within “cash and cash equivalents” in the consolidated balance sheets.
Level 2 – Quoted prices for identical assets and liabilities in markets that are not active, quoted prices for similar assets and liabilities in active markets or financial instruments for which significant inputs are observable, either directly or indirectly. The Company had no Level 2 securities at December 31, 2019 and 2018.
Level 3 – Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable. At December 31, 2019 and 2018, the Level 3 category included derivatives, which are included in "other long-term liabilities" in the consolidated balance sheets with the change in fair value from the period included in "interest and other loss, net" in the consolidated statement of operations. The Company did not hold any cash, cash equivalents or marketable securities categorized as Level 3 as of December 31, 2019 or 2018.
Measurement of Fair Value
The Company measures fair value as an exit price using the procedures described below for all assets and liabilities measured at fair value. When available, the Company uses unadjusted quoted market prices to measure fair value and classifies such items within Level 1. If quoted market prices are not available, fair value is based upon financial models that use, when possible, current market-based or independently-sourced market parameters such as interest rates and currency rates. Items valued using financial generated models are classified according to the lowest level input or value driver that is significant to the valuation. Thus, an item may be classified in Level 3 even though there may be inputs that are readily observable. If quoted market prices are not available, the valuation model used generally depends on the specific asset or liability being valued. The determination of fair value considers various factors including interest rate yield curves and time value underlying the financial instruments.
The fair value of the Company’s investments in corporate debt and government securities have been determined utilizing third party pricing services and reviewed by management. The pricing services use inputs to determine fair value which are derived from observable market sources including reportable trades, benchmark curves, credit spreads, broker/dealer quotes, bids, offers, and other industry and economic events. These investments are included in Level 2 of the fair value hierarchy.
The fair value of the Company’s derivatives were valued using the Black-Scholes pricing model adjusted for probability assumptions, with all significant inputs, except for the probability and volatility assumptions, derived from or corroborated by observable market data such as stock price and interest rates. The probability and volatility assumptions are both significant to the fair value measurement and unobservable. These embedded derivatives are included in Level 3 of the fair value hierarchy.
The fair value of the Company’s short-term loan was based upon current rates offered for similar financial instruments to the Company.
Items Measured at Fair Value on a Recurring Basis
The following table presents the Company’s liabilities that are measured at fair value on a recurring basis at December 31, 2019:
|
| | | | | | | | | | | | | | | | |
| | | | | Fair Value Measurements at Reporting Date Using |
| | | Total | | Quoted Prices in Active Markets for Identical Assets (Level 1) | | Significant other Inputs (Level 2) | | Significant Unobservable Inputs (Level 3) |
| Derivative liabilities: | | | | | | | | |
| Derivative Instruments | | 483,804 |
| | — |
| | — |
| | 483,804 |
|
| Total derivative liabilities | | 483,804 |
| | — |
| | — |
| | 483,804 |
|
| | | | | | | | | |
| Total assets and liabilities measured at fair value | | $ | 483,804 |
| | $ | — |
| | $ | — |
| | $ | 483,804 |
|
The derivative liabilities above are classified as other long-term liabilities in the December 31, 2019 consolidated balance sheet.
The following table presents the Company’s liabilities that are measured at fair value on a recurring basis at December 31, 2018:
|
| | | | | | | | | | | | | | | | |
| | | | | Fair Value Measurements at Reporting Date Using |
| | | Total | | Quoted Prices in Active Markets for Identical Assets (Level 1) | | Significant other Inputs (Level 2) | | Significant Unobservable Inputs (Level 3) |
| Derivative liabilities: | | | | | | | | |
| Derivative Instruments | | 498,086 |
| | — |
| | — |
| | 498,086 |
|
| Total derivative liabilities | | 498,086 |
| | — |
| | — |
| | 498,086 |
|
| | | | | | | | | |
| Total assets and liabilities measured at fair value | | $ | 498,086 |
| | $ | — |
| | $ | — |
| | $ | 498,086 |
|
The derivative liabilities above are classified as other long-term liabilities in the December 31, 2018 consolidated balance sheet.
The fair value of the Company’s derivatives were valued using the Black-Scholes pricing model adjusted for probability assumptions, with all significant inputs, except for the probability and volatility assumptions, derived from or corroborated by observable market data such as stock price and interest rates. The probability and volatility assumptions are both significant to the fair value measurement and unobservable. These embedded derivatives are included in Level 3 of the fair value hierarchy.
The following table presents the Company’s liabilities measured at fair value on a recurring basis using significant unobservable inputs (Level 3) as of each of the years ended December 31, 2019 and 2018:
|
| | | | | | | | |
| | | Fair Value Measurements Using Significant Unobservable Inputs (Level 3) |
| | | December 31, 2019 | | December 31, 2018 |
| Beginning Balance | | $ | 498,086 |
| | $ | 445,838 |
|
| Total (earnings) loss recognized in earnings | | (14,282 | ) | | 52,248 |
|
| Ending Balance | | $ | 483,804 |
| | $ | 498,086 |
|
Earnings and losses resulting from changes in the fair value of the derivative instruments above are recorded as a component of interest and other expense.
(4) Accrued Expenses
Accrued expenses are comprised of the following:
|
| | | | | | | | |
| | | December 31, 2019 | | December 31, 2018 |
| Accrued compensation | | $ | 141,233 |
| | $ | 136,446 |
|
| Accrued consulting and professional fees | | 1,603,914 |
| | 1,749,108 |
|
| Other accrued expenses | | 48,784 |
| | 64,775 |
|
| Accrued income taxes | | — |
| | 47,088 |
|
| Accrued other taxes | | 446,094 |
| | 420,695 |
|
| Accrued restructuring costs | | 293,799 |
| | 461,361 |
|
| | | $ | 2,533,824 |
| | $ | 2,879,473 |
|
(5) Income Taxes
Information pertaining to the Company’s income (loss) before income taxes and the applicable provision for income taxes is as follows: |
| | | | | | | | |
| | | December 31, |
| | | 2019 | | 2018 |
| Income (loss) before income taxes: | | | | |
| Domestic loss | | $ | (1,847,586 | ) | | $ | (1,105,447 | ) |
| Foreign income | | 587,957 |
| | 432,021 |
|
| Total loss before income taxes: | | (1,259,629 | ) | | (673,426 | ) |
| Provision (benefit) for income taxes: | | |
| | |
|
| Current: | | |
| | |
|
| Federal | | $ | (116,504 | ) | | $ | (231,564 | ) |
| State and local | | (40,860 | ) | | (47,304 | ) |
| Foreign | | 237,244 |
| | 244,396 |
|
| | | 79,880 |
| | (34,472 | ) |
| Deferred: | | |
| | |
|
| Federal | | $ | 121,898 |
| | $ | 208,709 |
|
| State and local | | 12,700 |
| | 308 |
|
| Foreign | | 277,847 |
| | 58,743 |
|
| | | 412,445 |
| | 267,760 |
|
| Total provision for income taxes: | | $ | 492,325 |
| | $ | 233,288 |
|
During 2019 and 2018, the Company recorded a tax provision of $492,325 and $233,288, respectively, related to federal, state and local and foreign income taxes. The tax provisions include a tax benefit related to our Minimum Tax Credit carryforwards which are now realizable on a more-likely-than-not basis as such amounts will be refundable under the TCJA, partially offset with the accrual of foreign withholding taxes as the Company is no longer permanently reinvesting its foreign earnings.
The TCJA provides for a modified territorial tax system whereby, beginning in the Company's 2018 tax year, global intangible low-taxed income (“GILTI”) provisions will be applied providing an incremental tax on low taxed foreign income. The GILTI provisions require us to include in our U.S. income tax return foreign subsidiary earnings in excess of an allowable return on the foreign subsidiary’s tangible assets. Under U.S. GAAP, the Company is allowed to make an accounting policy choice of either (1) treating taxes due on future U.S. inclusions in taxable income related to GILTI as a current-period expense when incurred (the “period cost method”) or (2) factoring such amounts into the Company’s measurement of its deferred taxes (the “deferred method”). The Company elected the "period cost method" as its accounting policy with respect to the new GILTI tax rules.
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities are as follows:
|
| | | | | | | | |
| | | December 31, |
| | | 2019 | | 2018 |
| Deferred Tax Assets: | | | | |
| Allowance for receivables | | $ | 52,439 |
| | $ | 35,218 |
|
| Deferred revenue | | 383,920 |
| | 852,015 |
|
| Share-based compensation | | 25,127 |
| | 21,940 |
|
| Accrued expenses and other liabilities | | 232,777 |
| | 341,553 |
|
| Domestic net operating loss carryforwards | | 20,761,781 |
| | 19,405,651 |
|
| Foreign net operating loss carryforwards | | 187,328 |
| | 198,017 |
|
| Tax credit carryforwards | | 3,106,022 |
| | 3,106,022 |
|
| AMT tax credit carryforwards | | 116,504 |
| | 233,007 |
|
| Capital loss carryforwards | | 32,109 |
| | 31,466 |
|
| Fixed assets | | 179,534 |
| | 178,502 |
|
| Interest expense carryforwards | | 94,674 |
| | 63,823 |
|
| Lease liability | | 494,030 |
| | — |
|
| Intangibles | | 176,210 |
| | 287,547 |
|
| Sub-total | | 25,842,455 |
| | 24,754,761 |
|
| Valuation allowance | | (23,613,642 | ) | | (22,424,261 | ) |
| Total Deferred Tax Assets | | 2,228,813 |
| | 2,330,500 |
|
| Deferred Tax Liabilities: | | | | |
|
| Prepaid commissions and other | | (134,618 | ) | | (100,569 | ) |
| Tax method changes | | (913,496 | ) | | (1,227,047 | ) |
| Right of use asset | | (387,740 | ) | | — |
|
| Deferred state income tax | | (470,545 | ) | | (279,540 | ) |
| Foreign withholding taxes | | (496,093 | ) | | (481,892 | ) |
| Total Deferred Tax Liabilities | | (2,402,492 | ) | | (2,089,048 | ) |
| Net Deferred Tax Assets | | $ | (173,679 | ) | | $ | 241,452 |
|
As of each reporting date, the Company considers new evidence, both positive and negative, that could affect its view of the future realization of deferred tax assets. In assessing the Company’s ability to recover its deferred tax assets, the Company evaluated whether it is more likely than not that some portion or the entire deferred tax asset will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income in those periods in which temporary differences become deductible and/or net operating losses can be utilized. The Company considered all positive and negative evidence when determining the amount of the net deferred tax assets that are more likely than not to be realized. This evidence includes, but is not limited to, historical earnings, scheduled reversal of taxable temporary differences, tax planning strategies and projected future taxable income. Based on these factors the Company determined that its U.S. deferred tax assets with the exception of its Minimum Tax Credit are not realizable on a more-likely-than-not basis and has recorded a full valuation allowance against such net deferred tax assets. The Company’s valuation allowance increased by $1.2 million due to operations.
As of December 31, 2019, the Company had federal net operating loss carry forwards of approximately $88.1 million, of which $83.4 million are set to expire beginning in 2030, if not utilized, and the remaining $4.7 million of which can be carryforward indefinitely. As of December 31, 2019, the Company had approximately $3.1 million of research and development tax credit carryforwards which expire at various dates beginning in 2023, if not utilized. Utilization of the net operating losses and credit carryforwards may be subject to a substantial annual limitation due to the "change in ownership" provisions of the Internal Revenue Code of 1986. The annual limitation may result in the expiration of net operating losses and credit carryforwards before utilization.
The effective tax rate before income taxes varies from the current statutory federal income tax rate as follows:
|
| | | | | | | | |
| | | December 31, |
| | | 2019 | | 2018 |
| Tax at Federal statutory rate | | $ | (264,522 | ) | | $ | (141,419 | ) |
| Increase (reduction) in income taxes resulting from: | | |
| | |
|
| State and local taxes | | (675,527 | ) | | 543,278 |
|
| Non-deductible expenses | | 9,100 |
| | 5,788 |
|
| GILTI | | 208,632 |
| | 194,676 |
|
| Stock compensation | | 6,236 |
| | 509,951 |
|
| Net effect of foreign operations | | (10,012 | ) | | 79,607 |
|
| Uncertain tax positions | | (71,119 | ) | | (60,994 | ) |
| Change in valuation allowance | | 1,188,639 |
| | (1,241,052 | ) |
| Foreign withholding taxes | | 165,099 |
| | 143,120 |
|
| Other | | (64,201 | ) | | 200,333 |
|
| | | $ | 492,325 |
| | $ | 233,288 |
|
Due to the change in U.S. federal tax law, the Company does not intend to indefinitely reinvest any of its unremitted foreign earnings. As of December 31, 2019, the Company has provided for additional foreign withholding taxes totaling approximately $0.5 million on approximately $4.6 million of undistributed earnings of its subsidiaries operating outside of the United States for which withholding tax applies.
A reconciliation of the beginning and ending amount of unrecognized tax benefits, excluding interest and penalties, is as follows:
|
| | | | | | | | |
| | | 2019 | | 2018 |
| Balance at January 1, | | $ | 134,246 |
| | $ | 180,202 |
|
| Increases to tax positions taken in prior years | | — |
| | — |
|
| Expiration of statutes of limitation | | (42,207 | ) | | (42,275 | ) |
| Translation | | (10,639 | ) | | (3,681 | ) |
| Balance at December 31, | | $ | 81,400 |
| | $ | 134,246 |
|
At December 31, 2019, $113,619 including interest, if recognized, would reduce the Company’s annual effective tax rate. As of December 31, 2019, the Company had approximately $32,219 of accrued interest. The Company believes it is reasonably possible that $7,981 of its unrecognized tax benefits will reverse within the next 12 months due to expiring statute of limitations. The Company records any interest and penalties related to unrecognized tax benefits in income tax expense.
The Company files federal, state, and foreign income tax returns in jurisdictions with varying statutes of limitations. The 2016 through 2019 tax years generally remain subject to examination by federal and most state tax authorities. In addition to the U.S., the Company’s major taxing jurisdictions include China, Taiwan, Japan, France and Germany.
(6) Accumulated Other Comprehensive Loss
The changes in Accumulated Other Comprehensive Loss, net of applicable tax, for December 31, 2019 are as follows:
|
| | | | | | | | | | | | |
| | Foreign
Currency
Translation | | Net
Minimum
Pension
Liability | | Total |
| Accumulated other comprehensive income (loss) at December 31, 2018 | | $ | (1,921,905 | ) | | $ | 26,803 |
| | $ | (1,895,102 | ) |
| Other comprehensive income (loss) | |
| |
| |
|
| Other comprehensive income (loss) before reclassifications | | (4,921 | ) | | 7,008 |
| | 2,087 |
|
| Amounts reclassified from accumulated other comprehensive income | | — |
| | (245 | ) | | (245 | ) |
| Total other comprehensive income | | (4,921 | ) | | 6,763 |
| | 1,842 |
|
| Accumulated other comprehensive income (loss) at December 31, 2019 | | $ | (1,926,826 | ) | | $ | 33,566 |
| | $ | (1,893,260 | ) |
The changes in Accumulated Other Comprehensive Loss, net of applicable tax, for December 31, 2018 are as follows:
|
| | | | | | | | | | | | |
| | | Foreign
Currency
Translation | | Net
Minimum
Pension
Liability | | Total |
| Accumulated other comprehensive income (loss) at December 31, 2017 | | $ | (1,980,940 | ) | | $ | 22,097 |
| | $ | (1,958,843 | ) |
| Other comprehensive income (loss) | | | | | | |
| Other comprehensive income (loss) before reclassifications | | 59,035 |
| | (743 | ) | | 58,292 |
|
| Amounts reclassified from accumulated other comprehensive income | | — |
| | 5,449 |
| | 5,449 |
|
| Total other comprehensive income | | 59,035 |
| | 4,706 |
| | 63,741 |
|
| Accumulated other comprehensive income (loss) at December 31, 2018 | | $ | (1,921,905 | ) | | $ | 26,803 |
| | $ | (1,895,102 | ) |
For the year ended December 31, 2019 and 2018, the amounts reclassified to net income (loss) related to the Company’s defined benefit plan and maturities of marketable securities. These amounts are included within “Operating income (loss)" within the consolidated statement of operations.
(7) Notes Payable and Stock Warrants
On November 17, 2017, HCP-FVA, an entity affiliated with Martin Hale, a director of the Company, provided a commitment, whereby it agreed to finance up to $3 million to the Company on the terms, and subject to the conditions, set forth in the commitment (the "Commitment"). As part of the Commitment, on November 17, 2017, the Company entered into a Loan Agreement with Lender and certain other loan parties named therein, pursuant to which the Lender made a Short Term Loan to the Company in the principal amount of $500,000. Pursuant to the Short Term Loan, HCP-FVA received warrants to purchase 138,591 shares of the Company's common stock at a nominal exercise price ("Backstop Warrants").
On February 23, 2018, the Company closed on the Commitment from HCP-FVA to purchase up to $3 million of Units (the "Financing"). HCP-FVA subscribed for the full $3 million of Units (at the Company’s election) in the Commitment by payment of $2.5 million in cash and the conversion of the $500,000 Short-Term Loan into Units. In consideration for HCP-FVA’s subscription of 3 million of Units, HCP-FVA was issued Financing Warrants (as hereinafter defined) to purchase 3,669,900 shares of the Company’s common stock for a nominal exercise price.
In the Financing, the Company agreed to offer FalconStor stockholders as of November 17, 2017 who were accredited investors the opportunity to purchase up to a total of 40 million Units (inclusive of subscriptions by HCP-FVA). Each Unit had a purchase price of $0.371063 and consisted of the following (each, a “Unit”):
| |
i. | $0.10 in senior secured debt (for a total of $4 million of senior secured debt assuming full subscription of the Financing), secured by all of the assets of the Company and guaranteed by each of the Company’s domestic subsidiaries, having an interest rate of prime plus 0.75% and a maturity date of June 30, 2021 (the “Term Loan”); |
| |
ii. | warrants to purchase 0.12233 shares of the Company’s common stock for a nominal exercise price (for a total of 4.8932 million shares assuming full subscription of the Financing) (the “Financing Warrants”); and |
| |
iii. | 0.0225 shares of Series A Preferred Stock at a per Unit price of $0.271063 (subject to increase to take into account accretion of the Series A Preferred Stock after December 31, 2019), all such shares to be acquired directly from their current holder, HCP-FVA. |
The closing of the Commitment effectively constituted HCP-FVA’s purchase of 30 million Units in the Financing. As a result, the maximum additional funds that the Company could receive in the Financing was $1,000,000 through the purchase of 10 million Units by other eligible stockholders. In exchange for serving as the backstop for the Financing, upon the closing of the Commitment, HCP-FVA received additional Backstop Warrants to purchase 415,774 shares of the Company’s common stock for a nominal exercise price, in addition to the 138,591 Backstop Warrants issued to HCP-FVA in connection with the making of the Short Term Loan.
On February 23, 2018, in connection with HCP-FVA’s subscription in the Financing, the Company entered into an Amended and Restated Term Loan Credit Agreement, dated as of the same date (the “Amended and Restated Loan Agreement”), with HCP-FVA and certain other loan parties named therein setting forth the terms of the Term Loan. The Amended and Restated Loan Agreement amended and restated the Loan Agreement.
Under the Amended and Restated Loan Agreement, in the event the Term Loan is prepaid for any reason, such prepayment will be subject to the payment of a premium in an amount equal to 5% of the principal amount prepaid. The Term Loan is required to be prepaid upon the occurrence of certain events, including but not limited to certain asset dispositions, the incurrence of additional indebtedness, the receipt of insurance proceeds, and a change of control, subject to certain exceptions.
The Amended and Restated Loan Agreement has customary representations, warranties and affirmative and negative covenants. The negative covenants include financial covenants by the Company to maintain minimum cash denominated in U.S. dollars plus accounts receivable outstanding for less than 90 days of $2 million. The Amended and Restated Loan Agreement also contains customary events of default, including but not limited to payment defaults, cross defaults with certain other indebtedness, breaches of covenants, bankruptcy events and a change of control. In the case of an event of default, as administrative agent under the Loan Agreement, HCP-FVA may (and upon the written request of lenders holding in excess of 50% of the Term Loan, which must include HCP-FVA, is required to accelerate payment of all obligations under the Loan Agreement, and seek other available remedies).
On April 23, 2018, HCP-FVA exercised most of its Backstop Warrants on a cash-less basis and was issued 533,706 shares of the Company's common stock. HCP-FVA exercised its remaining Backstop Warrants to purchase 15,436 shares of common stock on May 21, 2019.
The Commitment and the Financing were approved by the Company’s Board of Directors, based on a recommendation of a special committee of independent directors, with Mr. Hale recusing himself.
On October 9, 2018, FalconStor closed on the final tranche of its Financing of Units to certain eligible stockholders of the Company. As a result, the Company received an additional $1,000,000 of gross proceeds from new investors (the “New Investors”) which is in addition to the $3,000,000 of gross proceeds previously received from HCP-FVA through the subscription of 30,000,000 Units pursuant to the Commitment on February 23, 2018.
In addition to providing the Company with $1,000,000 of gross proceeds, the New Investors purchased $520,000 of the Term Loan held by HCP-FVA and 342,000 of the 900,000 shares of Series A Preferred Stock held by HCP-FVA. Financing Warrants to purchase 636,109 shares of Common Stock held by HCP-FVA were also cancelled. Accordingly, the New Investors held Financing Warrants to purchase 1,859,420 shares of Common Stock and HCP-FVA then held Financing Warrants to purchase 3,033,791 shares of Common Stock. The transfer of securities by HCP-FVA to New Investors was subject to certain transfer limitations to ensure the preservation of the Company’s net operating loss carry forward.
In December 2018, the Company received proceeds of approximately $489,321 from the exercise of Financing Warrants. In January of 2019, these proceeds were applied as a partial repayment of principle under the Term Loan.
On December 27, 2019, the Company entered into Amendment No. 1 to Amended and Restated Term Loan Credit Agreement, by and among the Company, certain of the Company’s affiliates in their capacities as guarantors, HCP-FVA as administrative agent for the lenders party thereto (the “Lenders”), ESW Capital, LLC (“ESW”), as co-agent, and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company (the “2019 Term Loan”). The Amendment also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced.
In connection with the initial advance of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded $378,439 and Michael Kelly funded $1,561. HCP-FVA is an affiliate of Hale Capital Partners, LP, the Company’s largest stockholder, and an affiliate of a director of the Company, Martin Hale. ESW is a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
During the fiscal years-ended December 31, 2019, December 31, 2018 and December 31, 2017, FalconStor was unable to make its Series A Preferred Stock quarterly dividend payments, and was subject to mandatory redemption under the Series A Preferred Stock purchase agreement. In conjunction with the Commitment, Hale Capital agreed to postpone the date of the mandatory redemption of the Series A Preferred Stock from August 5, 2017 to July 30, 2021, and to waive prior breaches of the terms of the Series A Preferred Stock which had also triggered a mandatory redemption right (“Series A Mandatory Redemption Extension”). Accordingly, as a result of these changes, for accounting purposes, the Series A Preferred Stock is considered new Series A Preferred Stock. Despite these actions, the Company continues to accrue dividends pursuant to the Amended and Restated Certificate of Designations, Preferences and Rights for the Series A Preferred Stock. See Note (8) Series A Redeembable Convertible Preferred Stock for additional information.
As a result, the Company assessed whether the transaction was a troubled debt restructuring. Although the Company meets the criteria of a debtor experiencing financial difficulties as described above in Accounting Standards Code ("ASC") 470-60-55-8, Hale Capital was not granted a concession as defined in ASC 470-60-55-10 as the effective interest rate for both the Series A Preferred Stock and the Original Loan was higher following the restructuring of Series A Preferred Stock and Long-Term Debt compared to the interest rate immediately before the restructuring. Since no concession was granted, Troubled Debt Restructuring accounting guidance does not apply.
As part of the analysis, the present value of the cash flows under the terms of the new Series A Preferred Stock and loans are greater than 10% different than the present value of the old Series A Preferred Stock and loans cash flows, as such extinguishment treatment applies.
When preferred stock is extinguished, the issuer should include the gain or loss on extinguishment in its net income attributable to common shareholders used to calculate earnings per share, as described in ASC 260-10-S99-2.
When multiple instruments are issued in a single transaction, the total proceeds from the transaction should be allocated among the individual freestanding instruments identified. Since Hale Capital previously held all of the debt and Series A Preferred Stock, the restructuring is considered to be a capital transaction as of December 31, 2018. As such the gain or loss was recorded in equity.
ASC 470-20-25-2 requires that debt or stock with detachable warrants issued in a bundled transaction with debt and equity proceeds be accounted for separately, based on the relative fair values of each instrument. The proceeds allocated to the Backstop Warrants and Financing Warrants were valued at $4,143,000.
Derivative treatment did not apply to the warrants issued in association with the restructuring based upon the warrants being penny warrants (pre-paid stock).
The initial transaction was recorded as follows:
|
| | | | | | |
| At Inception | February 23, 2018 |
| | Basis | Fair Value |
| Series A redeemable convertible preferred stock, net | $ | 10,312,113 |
| $ | 8,709,684 |
|
| Notes payable, net | 2,728,778 |
| 2,457,249 |
|
| Warrant liability | — |
| 4,143,000 |
|
| Total | $ | 13,040,891 |
| $ | 15,309,933 |
|
|
| | | | |
| Deemed dividend | | $ | 2,269,042 |
|
The Series A Preferred Stock consists of the following:
|
| | | |
| Series A redeemable convertible preferred stock principal balance | $ | 9,000,000 |
|
| Accrued dividends | 1,312,112 |
|
| Discount | (1,602,428 | ) |
| Total Series A redeemable convertible preferred stock, net at inception on February 23, 2018 | 8,709,684 |
|
| Accrued dividends | 683,742 |
|
| Accretion of preferred stock | 363,280 |
|
| Total Series A redeemable convertible preferred stock, net at December 31, 2018 | 9,756,706 |
|
| Accrued dividends | 1,157,762 |
|
| Accretion of preferred stock | 389,811 |
|
| Total Series A redeemable convertible preferred stock, net at December 31, 2019 | $ | 11,304,279 |
|
The notes payable balance consists of the following:
|
| | | |
| Notes payable principal balance | $ | 3,000,000 |
|
| Deferred issuance costs | (254,247 | ) |
| Discount | (288,504 | ) |
| Total notes payable, net at inception on February 23, 2018 | 2,457,249 |
|
| Proceeds from issuance of long-term debt | 1,000,000 |
|
| Revaluation of long-term debt | (447,008 | ) |
| Accretion of discount | 202,195 |
|
| Deferred issuance costs | (87,609 | ) |
| Total notes payable, net at December 31, 2018 | 3,124,827 |
|
| Repayment of long-term debt | (489,321 | ) |
| Proceeds from issuance of long-term debt | 1,000,000 |
|
| Accretion of discount | 273,521 |
|
| Deferred issuance costs | (55,393 | ) |
| Total notes payable, net at December 31, 2019 | $ | 3,853,634 |
|
The $4 million senior secured debt bears interest at prime plus 0.75% and matures on June 30, 2021. The $1 million term loan bears interest at 15% and matures on September 27, 2020.
(8) Series A Redeemable Convertible Preferred Stock
The Company has 900,000 shares of Series A Preferred Stock outstanding. Pursuant to the Amended and Restated Certificate of Designations, Preferences and Rights for the Series A Preferred Stock (the ”Certificate of Designations”), each share of Series A Preferred Stock can be converted into shares of the Company’s common stock, at an initial conversion price equal to $102.49 per share, subject to appropriate adjustments for any stock dividend, stock split, stock combination, reclassification or similar transaction, (i) at any time at the option of the holder or (ii) by the Company if, following the first anniversary of the issuance of the Series A Preferred Stock (subject to extension under certain circumstances), the volume weighted average trading price per share of the Company’s common stock for sixty (60) consecutive trading days exceeds 250% of the conversion price and continues to exceed 225% of the conversion price through the conversion date, subject at all times to the satisfaction of, and the limitations imposed by, the equity conditions set forth in the Certificate of Designations (including, without limitation, the volume limitations set forth therein).
Pursuant to the Certificate of Designations, the holders of the Series A Preferred Stock are entitled to receive quarterly dividends at the prime rate (provided in the Wall Street Journal Eastern Edition) plus 5% (up to a maximum dividend rate of 10%), payable in cash or in kind (i.e., through the issuance of additional shares of Series A Preferred Stock), except that the Company is not permitted to pay such dividends in cash while any indebtedness and the Company’s Amended and Restated Loan Agreement remains outstanding without the consent of the holders of the Series A Preferred Stock. In addition, the declaration and payment of dividends is subject to compliance with applicable law and unpaid dividends will accrue. A holder’s right to convert its shares of Series A Preferred Stock and receive dividends in the form of common stock is subject to certain limitations including, among other things, that the shares of common stock issuable upon conversion or as dividends will not, prior to receipt of stockholder approval, result in any holder beneficially owning greater than 19.99% of the Company’s currently outstanding shares of common stock.
The Series A Preferred dividends shall accrue whether or not the declaration or payment of such Series A Preferred dividends are prohibited by applicable law, whether or not the Company has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared.
Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect or failure of the Company to issue shares of common stock upon conversion of the Series A Preferred Stock in accordance with its obligations, the holders may require the Company to redeem all or some of the Series A Preferred Stock at a price per share equal to the greater of (i) the sum of 100% of the stated value of a share of Series A Preferred Stock plus accrued and unpaid dividends with respect thereto, and (ii) the product of the number of shares of common stock underlying a share of Series A Preferred Stock and the closing price as of the occurrence of the triggering event. On or after July 30, 2021, each holder of Series A Preferred Stock can also require the Company to redeem its Series A Preferred Stock in cash at a per share price equal to 100% of the stated value of a share of Series A Preferred Stock plus accrued and unpaid dividends with respect thereto. Notwithstanding the forgoing, no holder of Series A Preferred Stock is permitted to exercise any rights or remedies upon a Breach Event or to exercise any redemption rights under the Certificate of Designations, unless approved by the holders of a majority of the then outstanding shares of Series A Preferred Stock.
Upon consummation of a fundamental sale transaction, the Series A Preferred Stock shall be redeemed at a per share redemption price equal to the greater of (y) 250% of the per share purchase price of the Series A Preferred Stock and (z) the price payable in respect of such share of Series A Preferred Stock if such share of Series A Preferred Stock had been converted into such number of shares of common stock in accordance with the Certificate of Designations (but without giving effect to any limitations or restrictions contained therein) immediately prior to such fundamental sale transaction; provided however that the 250% threshold is changed to 100% if the fundamental sale transaction is approved by the two Series A Directors (as defined in the Certificate of Designations). In addition, if the Company consummates an equity or debt financing that results in more than $5.0 million of net proceeds to the Company and/or its subsidiaries, the holders of Series A Preferred Stock will have the right, but not the obligation, to require the Company to use the net proceeds in excess of $5.0 million to repurchase all or a portion of the Series A Preferred Stock at a per share price equal to the greater of (i) the sum of 100% of the stated value of such share of Series A Preferred Stock plus accrued and unpaid dividends with respect thereto, and (ii) the number of shares of common stock into which such share of Series A Preferred Stock is then convertible multiplied by the greater of (y) the closing price of the common stock on the date of announcement of such financing or (z) the closing price of the common stock on the date of consummation of such financing.
Each holder of Series A Preferred Stock has a vote equal to the number of shares of common stock into which its Series A Preferred Stock would be convertible as of the record date. In addition, the holders of a majority of the Series A Preferred Stock must approve certain actions, including approving any amendments to the Company’s Charter or Bylaws that adversely affects the voting powers, preferences or other rights of the Series A Preferred Stock; payment of dividends or distributions; any liquidation, capitalization, reorganization or any other fundamental transaction of the Company; issuance of any equity security senior to or on parity with the Series A Preferred Stock as to dividend rights, redemption rights, liquidation preference and other rights; issuances of equity below the conversion price; any liens or borrowings other than non-convertible indebtedness from standard commercial lenders which does not exceed 80% of the Company’s accounts receivable; and the redemption or purchase of any of the capital stock of the Company.
The Company has classified the Series A Preferred Stock as temporary equity in the financial statements as it is subject to redemption at the option of the holder under certain circumstances. As a result of the Company’s analysis of all the embedded conversion and put features within the Series A Preferred Stock, the contingent redemption put options in the Series A Preferred Stock were determined to not be clearly and closely related to the debt-type host and also did not meet any other scope exceptions for derivative accounting. Therefore, the contingent redemption put options are being accounted for as derivative instruments and the fair value of these derivative instruments was bifurcated from the Series A Preferred Stock and recorded as a liability.
As of December 31, 2019 and December 31, 2018 the fair value of these derivative instruments was $483,804 and $498,086, respectively, and were included in "other long-term liabilities" within the consolidated balance sheets. The gain (loss) on the change in fair value of these derivative instruments for the twelve months ended December 31, 2019 and December 31, 2018 of $(14,282) and $52,248, respectively, were included in “interest and other loss, net” within the consolidated statement of operations.
The fair value of these derivative instruments and the loss recorded on the change in the fair value of these derivative instruments, which was included in “Interest and other income, net” within the condensed consolidated statement of operations, for the twelve months ended December 31, 2019 and 2018, were as follows:
|
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Beginning Balance | | $ | 498,086 |
| | $ | 445,838 |
|
| Total loss recognized in earnings | | (14,282 | ) | | 52,248 |
|
| Ending Balance | | $ | 483,804 |
| | $ | 498,086 |
|
The Company’s derivatives were valued using the Black-Scholes pricing model adjusted for probability assumptions, with all significant inputs, except for the probability and volatility assumptions, derived from or corroborated by observable market data such as stock price and interest rates. The probability and volatility assumptions are as follows:
Exhibits. |
| |
Probability of redemption as part of a fundamental sale transaction | 0.5% |
Probability of redemption absent a fundamental sale transaction | 4.75% |
Annual volatility | 65%20 |
At the timeTable of issuance, the Company recorded transaction costs and the fair value allocated to the embedded derivatives as discounts to the Series A Preferred Stock. These costs were being accreted to the Series A Preferred Stock using the effective interest method through the stated redemption date of August 5, 2017, which represents the earliest redemption date of the instrument. This accretion was accelerated as of December 31, 2016 due to the failure of the financial covenants and the redemption right of the holders at that time. In connection with the Commitment, Hale Capital agreed to the Series A mandatory extension and waived prior breaches of the terms of the Series A Preferred Stock. The Company included deductions for accretion, deemed and accrued dividends on the Series A Preferred Stock as adjustments to net income (loss) attributable to common stockholders on the statement of operations and in determining income (loss) per share for the twelve months ended December 31, 2019 and 2018, respectively. The following represents a reconciliation of net loss attributable to common stockholders for the twelve months ended December 31, 2019 and 2018, respectively:Contents
|
| | | | | | | | |
| | | Years Ended December 31, |
| | | 2019 | | 2018 |
| Net income (loss) | | $ | (1,751,954 | ) | | $ | (906,714 | ) |
| Effects of Series A redeemable convertible preferred stock: | | | | |
| Less: Accrual of Series A redeemable convertible preferred stock dividends | | 1,157,762 |
| | 1,035,977 |
|
| Less: Accretion to redemption value of Series A redeemable convertible preferred stock | | 389,811 |
| | 254,212 |
|
| Less: Deemed dividend on Series A redeemable convertible preferred stock | | — |
| | 2,269,042 |
|
| Net income (loss) attributable to common stockholders | | $ | (3,299,527 | ) | | $ | (4,465,945 | ) |
(9) Stockholders’ Equity
Amendments to Articles of Incorporation
On June 22, 2018, following stockholder approval, the Company filed a certificate of amendment (the “Charter Amendment”) to the Company’s Restated Certificate of Incorporation, as amended, with the Delaware Secretary of State to increase the authorized shares of common stock, $.001 par value per share, to 30,000,000 and filed an Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (the “Amended and Restated Certificate of Designations”) with the Delaware Secretary of State to implement certain modifications to the terms of the Company’s Series A Preferred Stock.
Stock Repurchase Activity
During the year ended December 31, 2019 and December 31, 2018, the Company repurchased no shares of its common stock. As of December 31, 2019, the Company had the authorization to repurchase 49,078 shares of its common stock based upon its judgment and market conditions.
(10) Share-Based Payment Arrangements
On June 22, 2018, the Company's stockholders adopted the FalconStor Software, Inc. 2018 Incentive Stock Plan (the "2018 Plan"). The 2018 Plan is administered by the Compensation Committee and provides for the issuance of up to 1,471,997 shares of the Company's common stock upon the grant of shares with such restrictions as determined by the Compensation Committee to the employees and directors of, and consultants providing services to, the Company or its affiliates. Exercise prices of the options will be determined by the Compensation Committee, subject to the consent of Hale Capital. The vesting terms shall be performance based and determined by the Committee, subject to the consent of Hale Capital, based on various factors, including (i) the return of capital to the holders of the Series A Preferred Stock and the Company’s common stock in the event of a Change of Control, (ii) the repayment of the Company’s obligations under its senior secured debt, and (iii) the Company’s free cash flow. Seventy percent (70%) of the shares issuable under the 2018 Plan shall be granted as stock options. The remaining thirty percent (30%) of the shares subject to the Plan plus any returned shares will be reserved for future grants of awards to new hires.
The 2016 Incentive Stock Plan ( "2016 Plan") was terminated in April 2018.
The following table summarizes the 2018 Plan, which was the only plan under which the Company was able to grant equity compensation as of December 31, 2018:
|
| | | | | | | |
| Name of Plan | | Shares
Authorized | | Shares Available
for Grant | | Shares
Outstanding | |
| FalconStor Software, Inc. 2018 Incentive Stock Plan | | 1,471,997 | | 296,188 | | 1,146,002 | |
The following table summarizes the Company’s equity plans that have expired but that still have equity awards outstanding as of December 31, 2019:
|
| | | | |
Name of Plan | | Shares Available for Grant | | Shares Outstanding |
FalconStor Software, Inc., 2016 Incentive Stock Plan | | — | | 3,850 |
FalconStor Software, Inc., 2006 Incentive Stock Plan | | — | | 7,595 |
All outstanding options granted under the Company’s equity plans have terms of ten years.
A summary of the Company’s stock option activity for 2019 is as follows:
|
| | | | | | | | | | | | | |
| | Number of
Options | | Weighted
Average
Price | | Weighted
Average
Remaining
Contractual
Life (Years) | | Aggregate
Intrinsic
Value |
| Options Outstanding at December 31, 2018 | | 13,537 |
| | $ | 140.35 |
| | 5.60 | | $ | — |
|
| Granted | | — |
| | $ | — |
| | | | |
| Exercised | | — |
| | $ | — |
| | | | |
| Forfeited | | (2,587 | ) | | $ | 163.65 |
| | | | |
| Expired | | (505 | ) | | $ | 286.35 |
| | | | |
| Options Outstanding at December 31, 2019 | | 10,445 |
| | $ | 127.53 |
| | 4.96 | | $ | — |
|
| Options Exercisable at December 31, 2019 | | 10,445 |
| | $ | 127.53 |
| | 4.96 | | $ | — |
|
| Options Expected to Vest after December 31, 2019 | | — |
| | $ | — |
| | 0.00 | | $ | — |
|
Stock option exercises are fulfilled with new shares of common stock.
Related to the 2016 Plan, many share-based compensation awards were forfeited and the related expense reversed accordingly, resulting in negative expense in the period. The following table summarizes the share-based compensation expense for all awards issued under the Company’s stock equity plans in the following line items in the consolidated statements of operations:
|
| | | | | | | | |
| | | Years ended December 31, |
| | | 2019 | | 2018 |
| Cost of revenue - Support and Service | | 2,250 |
| | 26,203 |
|
| Research and development costs | | 6,348 |
| | 77,116 |
|
| Selling and marketing | | 4,030 |
| | 19,615 |
|
| General and administrative | | 19,652 |
| | (58,262 | ) |
| | | $ | 32,280 |
| | $ | 64,672 |
|
The Company did not recognize any tax benefits related to share-based compensation expense during the years ended December 31, 2019 and 2018.
The Company has the ability to issue both restricted stock and restricted stock units. The fair value of the restricted stock awards and restricted stock units are expensed at the fair value per share at date of grant for directors, officers and employees. A summary of the total stock-based compensation expense related to restricted stock awards and restricted stock units, which is included in the Company’s total share-based compensation expense for each respective year, is as follows:
|
| | | | | | | | |
| | | Years ended December 31, |
| | | 2019 | | 2018 |
| Directors, officers and employees | | $ | 23,031 |
| | $ | (49,289 | ) |
A summary of the Company’s restricted stock activity for 2019 is as follows:
|
| | | |
| | Number of Restricted Stock Awards |
Non-Vested at December 31, 2018 | | 1,000 |
|
Granted | | 1,251,154 |
|
Vested | | (29,807 | ) |
Forfeited | | (75,345 | ) |
Non-Vested at December 31, 2019 | | 1,147,002 |
|
Restricted stock and restricted stock units are fulfilled with new shares of common stock. The total intrinsic value of restricted stock for which the restrictions lapsed during the years ended was $485,519 and $0 for the years ended December 31, 2019 and 2018, respectively.
The Company estimates the fair value of share-based payments using the Black-Scholes option-pricing model. The Company believes that these valuation techniques and the approach utilized to develop the underlying assumptions are appropriate in estimating the fair value of the Company’s share-based payments granted during the years ended December 31, 2019 and 2018. Estimates of fair value are not intended to predict actual future events or the value ultimately realized by the employees who receive equity awards.
No awards were granted during the year ended December 31, 2018. The per share weighted average fair value of share-based payments granted during the year ended December 31, 2019 was $0.50. In addition to the exercise and grant date prices of the awards, certain weighted average assumptions were used to estimate the fair value of share-based payment grants in the respective periods are listed in the table below:
|
| | | | |
| | | Years ended December 31, |
| | | 2019 | | 2018 |
| Expected dividend yield | | 0% | | N/A |
| Expected volatility | | 46.1% - 42.2% | | N/A |
| Risk-free interest rate | | 2.5% | | N/A |
| Expected term (years) | | 5.0 | | N/A |
| Discount for post-vesting restrictions | | N/A | | N/A |
The Company estimates expected volatility based primarily on historical daily volatility of the Company’s stock and other factors, if applicable. The risk-free interest rate is based on the United States treasury yield curve in effect at the time of grant. The expected term is the number of years that the Company estimates that restricted stock will be outstanding. The expected term of the awards was determined based upon an estimate of the expected term of “plain vanilla” options as prescribed in SEC Staff Accounting Bulletin (“SAB”) No. 110.
As of December 31, 2019, there was approximately $0.6 million total unrecognized compensation cost related to the Company’s unvested stock options, restricted stock and restricted stock unit awards granted under the Company’s stock plans. The unrecognized compensation cost is expected to be recognized over a weighted-average period of 2.5 years.
As of December 31, 2019, the Company had 1,453,725 shares of common stock reserved for issuance upon the exercise or vesting of stock options, restricted stock, restricted stock units and warrants.
(11) Commitments and Contingencies
The Company’s headquarters are located in Austin, Texas. The Company has an operating lease covering its Melville, N.Y. office facility that expires in April 2021. The Company also has several additional operating leases related to offices in foreign countries. The expiration dates for these leases range from 2018 through 2021. The following is a schedule of future minimum lease payments for all operating leases as of December 31, 2019:
|
| | | |
| 2020 | $ | 1,754,189 |
|
| 2021 | 639,526 |
|
| 2022 | — |
|
| 2023 | — |
|
| Thereafter | — |
|
| | $ | 2,393,715 |
|
These leases require the Company to pay its proportionate share of real estate taxes and other common charges. Total rent expense for operating leases was $0.8 million and $1.1 million for the years ended December 31, 2019 and 2018, respectively.
The Company typically provides its customers a warranty on its software products for a period of no more than 90 days. Such warranties are accounted for in accordance with the authoritative guidance issued by the FASB on contingencies. For the year ended December 31, 2019, the Company has not incurred any costs related to warranty obligations.
Under the terms of substantially all of its software license agreements, the Company has agreed to indemnify its customers for all costs and damages arising from claims against such customers based on, among other things, allegations that the Company’s software infringes the intellectual property rights of a third party. In most cases, in the event of an infringement claim, the Company retains the right to (i) procure for the customer the right to continue using the software; (ii) replace or modify the software to eliminate the infringement while providing substantially equivalent functionality; or (iii) if neither (i) nor (ii) can be reasonably achieved, the Company may terminate the license agreement and refund to the customer a pro-rata portion of the license fee paid to the Company. Such indemnification provisions are accounted for in accordance with the authoritative guidance issued by the FASB on guarantees. From time to time, in the ordinary course of business, the Company receives claims for indemnification, typically from OEMs. The Company is not currently aware of any material claims for indemnification.
As described under Note 8, the holders of the Series A Preferred Stock have redemption rights upon certain triggering events. As of December 31, 2019, the Company did not fail any non-financial covenants related to the Company's Series A Preferred Stock.
As of August 14, 2017, the Board appointed Todd Brooks as Chief Executive Officer effective August 14, 2017.
In connection with Mr. Brooks’ appointment as Chief Executive Officer, the Board approved an offer letter to Mr. Brooks (the “Brooks Agreement”), which was executed on August 14, 2017. The Brooks Agreement provides that Mr. Brooks is entitled to receive an annualized base salary of $350,000, payable in regular installments in accordance with the Company’s general payroll practices. Mr. Brooks will also be eligible for a cash bonus of $17,500 for any quarter that is free cash flow positive on an operating basis and additional incentive compensation of an annual bonus of up to $200,000, subject to attainment of performance objectives to be mutually agreed upon and established. Mr. Brooks’ employment can be terminated at will. If Mr. Brooks’ employment is terminated by the Company other than for cause he is entitled to receive severance equal to twelve (12) months of his base salary if (i) he has been employed by the Company for at least twelve (12) months at the time of termination or (ii) a change of control has occurred within six (6) months of Mr. Brooks’ employment. Except as set forth in the preceding sentence, Mr. Brooks is entitled to receive severance equal to six (6) months of his base salary if he has been employed by the Company for less than six (6) months and his employment was terminated by the Company without cause. Mr. Brooks is also entitled to vacation and other employee benefits in accordance with the Company’s policies as well as reimbursement for an apartment.
On April 5, 2018, the Company announced the appointment of Brad Wolfe to serve as the Company’s Executive Vice President, Chief Financial Officer and Treasurer, effective April 9, 2018. Mr. Wolfe also assumed the roles of principal financial officer and principal accounting officer of the Company.
In connection with Mr. Wolfe’s appointment as Chief Financial Officer, the Board approved an offer letter to Mr. Wolfe (the “Wolfe Offer Letter”), which was executed on April 4, 2018. The Wolfe Offer Letter provides that Mr. Wolfe is entitled to receive an annualized base salary of $240,000, payable in regular installments in accordance with the Company’s general payroll practices. Mr. Wolfe will also be eligible for a cash bonus of $10,000 for any quarter which has net working capital cash in excess of $27,500 and additional incentive compensation of an annual bonus of up to $70,000, subject to attainment of performance objectives to be mutually agreed upon and established.
As described under Note 14, the Company has incurred certain restructuring costs in connection with restructuring plans adopted in 2013 and 2017.
In addition, as of December 31, 2019, our liability for uncertain tax positions totaled $432,520. At this time, the settlement period for the positions, including related accrued interest, cannot be determined.
(12) Derivative Financial Instruments
The Company does not use derivative financial instruments for trading or speculative purposes. As of December 31, 2019 and 2018, the Company had no foreign currency forward contracts outstanding. The Company did not utilize foreign currency forward contracts during the years ended December 31, 2019 and 2018.
As a result of the Company’s analysis of all the embedded conversion and put features within its Series A redeemable convertible preferred stock, the contingent redemption put options in the Series A redeemable convertible preferred stock were determined to not be clearly and closely related to the debt-type host and also did not meet any other scope exceptions for derivative accounting. Therefore the contingent redemption put options are being accounted for as derivative instruments and the fair value of these derivative instruments were bifurcated from the Series A redeemable convertible preferred stock and recorded as a liability. At the time of issuance of the Series A redeemable convertible preferred stock the fair value of these derivative instruments were recorded as a reduction to preferred stock. As of December 31, 2019 and 2018, the fair value of these derivative instruments was $483,804 and $498,086, respectively, and were included in "other long-term liabilities" within the consolidated balance sheets. The loss on the change in fair value of these derivative instruments for 2019 of $14,282 and the loss on the change in fair value of these derivative instruments for 2018 of $52,248, were included in “interest and other loss, net” within the consolidated statement of operations.
(13) Litigation
In view of the inherent difficulty of predicting the outcome of litigation, particularly where the claimants seek very large or indeterminate damages, the Company generally cannot predict what the eventual outcome of the pending matters will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines or penalties related to each pending matter may be.
In accordance with the authoritative guidance issued by the FASB on contingencies, the Company accrues anticipated costs of settlement, damages and losses for claims to the extent specific losses are probable and estimable. The Company records a receivable for insurance recoveries when such amounts are probable and collectable. In such cases, there may be an exposure to loss in excess of any amounts accrued. If, at the time of evaluation, the loss contingency related to a litigation is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable and, the Company will expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, the Company will accrue the minimum amount of the range.
Other Claims
The Company is subject to various legal proceedings and claims, asserted or unasserted, which arise in the ordinary course of business. While the outcome of any such matters cannot be predicted with certainty, such matters are not expected to have a material adverse effect on the Company’s financial condition or operating results.
The Company continues to assess certain litigation and claims to determine the amounts, if any, that the Company believes may be paid as a result of such claims and litigation and, therefore, additional losses may be accrued and paid in the future, which could materially adversely impact the Company’s financial results, its cash flows and its cash reserves.
(14) Restructuring Costs
In the third quarter of 2013, the Company adopted the 2013 Plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis. In connection with the 2013 Plan, the Company eliminated over 100 positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. The 2013 Plan was substantially completed by December 31, 2014; however, the Company expects the remaining accrued severance related costs of $0.3 million as of December 31, 2019 to be paid once final settlement litigation is completed, which can be at various times over the next twelve months.
In June 2017, the Board approved a comprehensive plan to increase operating performance (the “2017 Plan”). The 2017 Plan was substantially completed by the end of the Company’s fiscal year ending December 31, 2017, and when combined with previous workforce reductions in the second quarter of Fiscal 2017 reduced the Company’s workforce to approximately 86 employees at December 31, 2018. In making these changes, the Company prioritized customer support and development while consolidating operations and streamlining direct sales resources allowing the company to focus on the install base and develop alternate channels to the market. As part of this consolidation effort the Company vacated a portion of the Mellville, NY office space during the three months ended June 30, 2018. In accordance with accounting standards governing costs associated with exit or disposal activities, expenses related to future rental payments for which the Company no longer intends to receive any economic benefit are accrued, net of any anticipated sublease income, when the Company ceases use of the leased space. During the fiscal year ended December 31, 2019, the Company incurred lease disposal-related costs for this property of $0.9 million. As of December 31, 2019, $0.2 million of the Company's remaining accrued lease disposal cost has been recorded as a component of operating lease liabilities.
In the third quarter of 2019, the Company adopted a plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis (the "2019 Plan"). In connection with the 2019 Plan, the Company eliminated 23 positions worldwide, implemented tighter expense controls, ceased non-core activities and downsized several facilities. During the three months ended September 30, 2019, the Company incurred $0.2 million in severance expense as a result of this action. The 2019 Plan was substantially completed at December 31, 2019.
Accrued restructuring costs as of December 31, 2019 associated with the 2013 and 2017 Plans is as follows:
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| | | | | | | | | | | | |
| | | Severance related costs | | Facility and other costs | | Total |
| Balance at December 31, 2017 | | $ | 648,399 |
| | $ | — |
| | $ | 648,399 |
|
| Provisions/Additions | | (173,265 | ) | | 1,434,843 |
| | 1,261,578 |
|
| Utilized/Paid | | (13,773 | ) | | (981,396 | ) | | (995,169 | ) |
| Balance at December 31, 2018 | | $ | 461,361 |
| | $ | 453,447 |
| | $ | 914,808 |
|
| Provisions/Additions | | 245,910 |
| | 858,408 |
| | 1,104,318 |
|
| Utilized/Paid | | (413,472 | ) | | (1,074,362 | ) | | (1,487,834 | ) |
| Balance at December 31, 2019 | | $ | 293,799 |
| | $ | 237,493 |
| | $ | 531,292 |
|
In the accompanying consolidated balance sheets, the Company's remaining accrued severance and other charges are included within “accrued expenses” and "accounts payable". The Company's remaining accrued facility cost has been recorded as a component of "operating lease liabilities". Expenses incurred under the 2017 and 2019 Plans during the years ended December 31, 2019 and 2018 are included within “restructuring costs” in the accompanying consolidated statements of operations.
(15) Employee Benefit Plans
Defined Contribution Plan
Effective July 2002, the Company established a voluntary savings and defined contribution plan (the “Plan”) under Section 401(k) of the Internal Revenue Code. This Plan covers all U.S. employees meeting certain eligibility requirements and allows participants to contribute a portion of their annual compensation. Employees are 100% vested in their own contributions. For the years ended December 31, 2019 and 2018, the Company did not make any contributions to the Plan.
Effective July 1, 2007, the Company, in accordance with the labor pension system in Taiwan, contributes 6% of salaries to individual pension accounts managed by the Bureau of Labor Insurance. The plan covers all Taiwan employees that elect the new pension system and all employees hired after July 1, 2005. For the years ended December 31, 2019 and 2018, the Company contributed approximately $4,000 and $5,000, respectively.
Defined Benefit Plan
The Company has a defined benefit plan covering employees in Taiwan. The Company accounts for its defined benefit plan in accordance with the authoritative guidance issued by the FASB on retirement benefits, which requires the Company to recognize the funded status of its defined benefit plan in the accompanying consolidated balance sheet, with the corresponding adjustment to accumulated other comprehensive income, net of tax.
At December 31, 2019 and 2018, $33,566 and $26,802, respectively, is included in accumulated other comprehensive (loss) income for amounts that have not yet been recognized in net periodic pension cost. These amounts include the following: unrecognized transition obligation of $0 and $0 at December 31, 2019 and 2018, respectively, and unrecognized actuarial gains of $33,566 and $26,802 at December 31, 2019 and 2018, respectively. During 2019, the total amount recorded in other comprehensive (loss) income related to the pension plan was $6,763 (net of tax), which consisted of an actuarial loss of $6,763 and the recognition of $0 of transition obligations recognized during 2019 as a component of net periodic pension cost. The transition obligation and actuarial gain included in accumulated other comprehensive (loss) income and expected to be recognized in net periodic pension cost for the year ended December 31, 2020, is $0 and $1,005 respectively.
Pension information for the years ended December 31, 2019 and 2018, is as follows:
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| | | | | | | | |
| | | 2019 | | 2018 |
| Accumulated benefit obligation | | $ | 170,879 |
| | $ | 165,031 |
|
| Changes in projected benefit obligation: | | |
| | |
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| Projected benefit obligation at beginning of year | | 174,261 |
| | 231,618 |
|
| Interest cost | | 1,469 |
| | 2,509 |
|
| Actuarial gain | | 389 |
| | 10,248 |
|
| Benefits paid | | — |
| | (64,016 | ) |
| Service cost | | — |
| | — |
|
| Currency translation | | 4,032 |
| | (6,098 | ) |
| Projected benefit obligation at end of year | | $ | 180,151 |
| | $ | 174,261 |
|
| Changes in plan assets: | | |
| | |
|
| Fair value of plan assets at beginning of year | | $ | 134,351 |
| | $ | 190,950 |
|
| Actual return on plan assets | | 8,069 |
| | 7,161 |
|
| Benefits paid | | — |
| | (64,016 | ) |
| Employer contributions | | 4,041 |
| | 5,148 |
|
| Currency translation | | 3,442 |
| | (4,892 | ) |
| Fair value of plan assets at end of year | | $ | 149,903 |
| | $ | 134,351 |
|
| Funded status | | (30,248 | ) | | (39,910 | ) |
The underfunded status of the Company's defined benefit plan has been recorded as a component of other long-term liabilities as of December 13, 2019 and 2018.
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| | | | | | | | |
| Components of net periodic pension cost: | | |
| | |
|
| Interest cost | | $ | 1,469 |
| | $ | 2,509 |
|
| Expected return on plan assets | | (1,133 | ) | | (2,068 | ) |
| Amortization of net (gain) loss | | (581 | ) | | 5,008 |
|
| Service cost | | — |
| | — |
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| Net periodic pension (benefit) cost | | $ | (245 | ) | | $ | 5,449 |
|
The Company makes contributions to the plan so that minimum contribution requirements, as determined by government regulations, are met. Company contributions of approximately $116,000 are expected to be made during 2020. Benefit payments of $0 are expected to be paid through 2028.
The Company utilized the following assumptions in computing the benefit obligation at December 31, 2019 and 2018 as follows:
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| | | | | | |
| | | Years ended December 31, |
| | | 2019 | | 2018 |
| Discount rate | | 0.66 | % | | 0.85 | % |
| Rate of increase in compensation levels | | 1.00 | % | | 1.00 | % |
| Expected long-term rate of return on plan assets | | 0.66 | % | | 0.85 | % |
(16) Segment Reporting and Concentrations
The Company is organized in a single operating segment for purposes of making operating decisions and assessing performance. Revenues from the United States to customers in the following geographical areas for the years ended December 31, 2019 and 2018, and the location of long-lived assets as of December 31, 2019 and 2018, are summarized as follows:
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| | | | | | | | |
| | | Years ended December 31, |
| | 2019 | | 2018 |
| Revenues: | | | | |
| Americas | | $ | 4,299,840 |
| | $ | 3,997,620 |
|
| Asia Pacific | | 6,212,275 |
| | 6,867,306 |
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| Europe, Middle East, Africa and Other | | 6,031,456 |
| | 6,972,980 |
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| Total Revenues | | $ | 16,543,571 |
| | $ | 17,837,906 |
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| | | | | |
| | | December 31, |
| | 2019 | | 2018 |
| Long-lived assets: | | | | |
| Americas | | $ | 6,811,578 |
| | $ | 5,852,995 |
|
| Asia Pacific | | 860,023 |
| | 736,970 |
|
| Europe, Middle East, Africa and Other | | 190,928 |
| | 155,708 |
|
| Total long-lived assets | | $ | 7,862,529 |
| | $ | 6,745,673 |
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For the year ended December 31, 2019, the Company had two customers that accounted for more than 10% of total revenue. For the year ended 2018, the Company had no customers that accounted for more than 10% of total revenue.
As of December 31, 2019 and 2018, the Company had one customer that accounted for more than 10% of the gross accounts receivable balance.
(17) Valuation and Qualifying Accounts – Allowance for Returns and Doubtful Accounts
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| | | | | | | | | | | | | | |
| Period Ended | | Balance at Beginning of Period | | Charges / (Benefits) to Revenue | | (Increases) Deductions | | Balance at End of Period |
| December 31, 2019 | | $ | 162,112 |
| | 148,624 |
| | 94,583 |
| | $ | 216,153 |
|
| December 31, 2018 | | $ | 354,542 |
| | (23,080 | ) | | 169,350 |
| | $ | 162,112 |
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Note: Charges/benefits to the allowance for doubtful accounts are recorded within “general and administrative expenses” within the consolidated statements of operations. Charges/benefits to the return reserve for product and service are recorded within “product revenue” within the consolidated statements of operations.
(18) Related Party Transactions
William Miller, a member of the Company's Board of Directors, is the Chairman and Chief Executive Officer of X-IO Technologies, Inc. (“X-IO Technologies”), an enterprise storage company. For the year ended December 31, 2018, the Company sold product to X-IO Technologies totaling $40,519.
Martin M. Hale, Jr., a member of the Company's Board of Directors, is a general partner of HCP-FVA, the holder in excess of 50% of the Company’s Series A Preferred Stock. The Series A Preferred Stock was purchased by Hale Capital Partners, LP, of which Mr. Hale is a general partner, pursuant to a September 16, 2013 stock purchase agreement with the Company at a time when Mr. Hale was not a director of the Company. Hale Capital Partners, LP subsequently assigned all of its rights in the Series A Preferred Stock to HCP-FVA. Under the terms of the Certificate of Designations, the holders of the Series A Preferred Stock are entitled, as a group, to nominate and to elect up to two directors so long as at least 85% of the Company's Series A Preferred Stock is outstanding. HCP-FVA, the sole holder of the Series A Preferred Stock at the time, nominated and elected Mr. Hale in September 2013 and Michael P. Kelly on October 29, 2014, to the Company’s Board of Directors.
On November 17, 2017, HCP-FVA provided the Commitment to the Company agreeing to finance up to $3 million to the Company on the terms, and subject to the conditions, set forth in the Commitment. As part of that Commitment, on November 17, 2017, the Company entered into a Loan and Security Agreement with HCP-FVA and certain other loan parties named therein, pursuant to which the Lender made a short term loan to the Company in the principal amount of $500,000 payable on May 17, 2018. In connection with the short term loan, the Company issued HCP-FVA Backstop Warrants to purchase 138,591 shares of Common Stock. See Note (7) Notes Payable and Stock Warrants for more information.
On February 23, 2018, we closed on the Commitment whereby HCP-FVA purchased $3 million of Units (as defined in Note (7) Notes Payable and Stock Warrants) to backstop a proposed private placement of Units to certain eligible stockholders of the Company. HCP-FVA subscribed for the full $3 million of Units (at the Company’s election) in the Commitment by payment of $2.5 million in cash and the conversion of the $500,000 short term loan In connection therewith, the Company issued HCP-FVA additional BackStop Warrants to purchase 415,774 shares of common stock and Financing Warrants to purchase 3,669,900 shares of common stock.
On October 9, 2018, FalconStor closed on the final tranche of its previously-announced Financing of Units to certain eligible stockholders of the Company. As a result, the Company received an additional $1,000,000 of gross proceeds from new investors (the “New Investors”) which is in addition to the $3,000,000 of gross proceeds previously received from HCP-FVA through the subscription of 30,000,000 Units pursuant to the Commitment on February 23, 2018.
In addition to providing the Company with $1,000,000 of gross proceeds, the New Investors purchased $520,000 of the Term Loan held by HCP-FVA and 342,000 of the 900,000 shares of Series A Preferred Stock held by HCP-FVA. Financing Warrants to purchase 636,109 shares of Common Stock held by HCP-FVA were also cancelled. Accordingly, the New Investors hold Financing Warrants to purchase 1,859,420 shares of Common Stock and HCP-FVA now holds Financing Warrants to purchase 3,033,791 shares of Common Stock. The transfer of securities by HCP-FVA to New Investors was subject to certain transfer limitations to ensure the preservation of the Company’s net operating loss carry forward.
On December 27, 2019, the Company entered into Amendment No. 1 to Amended and Restated Term Loan Credit Agreement , by and among the Company, certain of the Company’s affiliates in their capacities as guarantors, HCP-FVA as administrative agent for the Lenders party thereto, ESW, as co-agent, and the Lenders, to provide for, among other things, a new $2,500,000 term loan facility to the Company. The Amendment also provides for certain financial covenants. On December 27, 2019, the Company drew down $1,000,000 of the 2019 Term Loan and the Company will pay a fixed amount of interest on such advance equal to 15% of the principal amount advanced.
In connection with the initial advance of the 2019 Term Loan, HCP-FVA funded $620,000, ESW funded 378,439 and Michael Kelly funded 1,561. ESW is a greater than 5% stockholder of the Company and Mr. Kelly is a director of the Company.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
The required disclosure related to our previous registered public accounting firm can be found in our Current Report on Form 8-K filed with the SEC on April 23, 2018 and April 9, 2019.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
The Company maintains “disclosure controls and procedures,” as such term is defined in Rules 13a-15e and 15d-15e of the Exchange Act, that are designed to ensure that information required to be disclosed in its reports, pursuant to the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to its management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding the required disclosures. In designing and evaluating the disclosure controls and procedures, management has recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurances of achieving the desired control objectives, and management necessarily is required to apply its judgment in evaluating the cost benefit relationship of possible controls and procedures.
The Company’s Chief Executive Officer (its principal executive officer) and Chief Financial Officer (its principal financial officer and principal accounting officer) have evaluated the effectiveness of its “disclosure controls and procedures” as of the end of the period covered by this Annual Report on Form 10-K. Based on their evaluation, the principal executive officer and principal financial officer concluded that its disclosure controls and procedures are not effective as of the end of the period covered by this report. We describe this deficiency and the steps we have taken to remedy such deficiency in our discussion of internal control over financial reporting below.
Internal Control Over Financial Reporting
Management’s Report on Internal Control Over Financial Reporting
The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company; as such term is defined in Rules 13a-15(f) under the Exchange Act, as amended. To evaluate the effectiveness of the Company’s internal control over financial reporting, the Company’s management uses the Integrated Framework (2013) adopted by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”).
The Company’s management has assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2019, using the COSO framework (2013). The Company’s management has determined that the Company’s internal control over financial reporting is not effective as of that date because of the following material weakness:
During the twelve months ended December 31, 2019, the Company did not have an independent party complete testing of the controls as of December 31, 2019. The Company has implemented certain mitigating controls such as secondary reviews by senior management, variance analysis reporting and cash-flow monitoring, which insured that both internal and external financial reporting included all the information and disclosures required by generally accepted accounting principles in the United States of America.
Notwithstanding the above, the Principal Executive Officer and the Principal Financial Officer believe that the consolidated financial statements and other information contained in this Annual Report present fairly, in all material respects, our business, financial condition and results of operations.
Remediation
The Company is implementing the appropriate system controls mandated by the COSO framework (2013) for 2019 and plans to conduct independent audit testing of these controls which are implemented.
Item 9B. Other Information
None.
PART III
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Item 10. | Directors, Executive Officers and Corporate Governance |
Information called for by Part III, Item 10, regarding the Registrant’s directors and executive officers will be included in our Proxy Statement relating to our annual meeting of stockholders scheduled to be held in June 2020, and is incorporated herein by reference. The information will appear in the Proxy Statement under the captions “Election of Directors”, “Management”, “Executive Compensation”, “Section 16 (a) Beneficial Ownership Reporting Compliance”, and “Committees of the Board of Directors.” The Proxy Statement will be filed within 120 days of December 31, 2019, our year-end.
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Item 11. | Executive Compensation |
Information called for by Part III, Item 11, will be included in our Proxy Statement relating to our annual meeting of stockholders scheduled to be held in June 2020, and is incorporated herein by reference. The information will appear in the Proxy Statement under the captions “Executive Compensation”, “Director Compensation”, “Compensation Committee Interlocks and Insider Participation”, "Compensation Committee Report” and “Committees of the Board of Directors.” The Proxy Statement will be filed within 120 days of December 31, 2019, our year-end.
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Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
Information regarding Securities Authorized for Issuance Under Equity Compensation Plans is included in Item 4 and is incorporated herein by reference. All other information called for by Part III, Item 12, will be included in our Proxy Statement relating to our annual meeting of stockholders scheduled to be held in June 2020, and is incorporated herein by reference. The information will appear in the Proxy Statement under the caption “Beneficial Ownership of Shares.” The Proxy Statement will be filed within 120 days of December 31, 2019, our year-end.
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Item 13. | Certain Relationships and Related Transactions, and Director Independence |
Information regarding our relationships and related transactions will be included in our Proxy Statement relating to our annual meeting of stockholders scheduled to be held in June 2020, and is incorporated by reference. The information will appear in the Proxy Statement under the caption “Certain Relationships and Related Transactions.” The Proxy Statement will be filed within 120 days of December 31, 2019, our year-end.
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Item 14. | Principal Accountant Fees and Services |
Information called for by Part III, Item 14, will be included in our Proxy Statement relating to our annual meeting of stockholders scheduled to be held in June 2020, and is incorporated herein by reference. The information will appear in the Proxy Statement under the caption “Principal Accountant Fees and Services.” The Proxy Statement will be filed within 120 days of December 31, 2019, our year-end.
PART IV
Item 15. Exhibits and Financial Statement Schedules
The information required by subsections (a)(1) and (a)(2) of this item are included in the response to Item 8 of Part II of this annual report on Form 10-K.
(b) Exhibits
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3.1 | Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1 to the Registrant’s registration statement on Form S-1 (File no. 33-79350), filed on April 28, 1994. |
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4.4s
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4.5s
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4.6* | |
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10.1 | Intentionally omitted. |
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10.4 | Intentionally omitted. |
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10.5s
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10.6 | Intentionally omitted. |
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10.7s
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10.8 | Intentionally omitted. |
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10.9 | Intentionally omitted. |
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10.10 | Intentionally omitted. |
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10.11 | Amended and Restated Term Loan Credit Agreement, dated as of February 23, 2018, by and among FalconStor Software, Inc., HCP-FVA, LLC, as Administrative Agent and as a Lender, and the other Loan Parties named therein, incorporated herein by reference to Exhibit 10.1 to Registrant’s current report on Form 8-K filed on February 26, 2018. |
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10.12 | Intentionally omitted. |
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10.13 | Intentionally omitted. |
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10.14 | |
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10.15 | |
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10.16 | Joinder to Amended and Restated Term Loan Credit Agreement, dated as of February 23, 2018, by and among FalconStor Software, Inc., HCP-FVA, LLC, as Administrative Agent and as a Lender, and the other Loan Parties named therein, incorporated by reference to Exhibit 10.2 to the Registrant’s current report on Form 8-K filed October 11, 2018. |
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10.17 | Amendment No. 1 to Amended and Restated Term Loan Credit Agreement dated December 27, 2019 by and among FalconStor Software, Inc., HCP-FVA, LLC, EW Capital, LLC, the lenders party thereto and the other loan parties named therein, incorporated by reference to Exhibit 10.1 to the Registrant's current report on Form 8-K, filed on January 3, 2020. |
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21.1 | Subsidiaries of Registrant – FalconStor, Inc., FalconStor AC, Inc., FalconStor Software (Korea), Inc. |
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101.1 |
| The following financial statements from FalconStor Software, Inc’s Annual Report on Form 10-K for the year ended December 31, 2018, formatted in XBLR (eXtensible Business Reporting Language): |
(i) Consolidated Balance Sheets – December 31, 2019 and December 31, 2018
(ii) Consolidated Statements of Operations – Years Ended December 31, 2019 and 2018
(iii) Consolidated Statements of Comprehensive Income (Loss) – Years Ended December 31, 2019 and 2018
(iv) Consolidated Statements of Stockholders’ Deficit – Years Ended December 31, 2019 and 2018
(v) Consolidated Statements of Cash Flows – Years Ended December 31, 2019 and 2018
(vi) Notes to Consolidated Financial Statements – December 31, 2019
*- Filed herewith.
s- Denotes management contract or compensatory plan or arrangement.
Item 16. Form 10-K Summary
None.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrantRegistrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized in Melville, State of New York on March 19, 2020.
authorized. | FalconStor Software, Inc. |
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FALCONSTOR SOFTWARE, INC. | | |
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| By: | /s/ Brad Wolfe | | March 19, 2020 |
| Executive Vice President, Chief Financial Officer and Treasurer | | Date |
| (principal financial and accounting officer) | | Todd Brooks |
| | | Name: | |
POWER OF ATTORNEY
FalconStor Software, Inc. and each of the undersigned do hereby appoint Todd Brooks and Brad Wolfe, and each of them severally, its or his true and lawful attorney to execute on behalf of FalconStor Software, Inc. and the undersigned any and all amendments to this Annual Report on Form 10-K and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission; each of such attorneys shall have the power to act hereunder with or without the other.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
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By: | /s/ Todd Brooks | | March 19, 2020 |
| | Todd Brooks, | Title: | President &and Chief Executive Officer and Director (principal (principal executive officer) | | Date |
Date: April 23, 2021
INDEX TO EXHIBITS
The Index to Exhibits previously filed in the Original Filing remains in effect with the exception of the addition of the following exhibits, filed herewith:
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By: | /s/ Martin Hale Jr. | | March 19, 2020 |
| Martin Hale Jr., Director | | DateFiled herewith. |
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By: | /s/ Michael Kelly | | March 19, 2020 |
| Michael Kelly, Director | | Date |
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By: | /s/ Barry A. Rudolph | | March 19, 2020 |
| Barry A. Rudolph, Director | | Date |
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By: | /s/ William D. Miller | | March 19, 2020 |
| William D. Miller, Director | | Date |