UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM10-Q

 

(MARK ONE)Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterquarterly period ended September 30, 2019March 31, 2020

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                       to        

For the transition period fromto

Commission file number:File Number 001-38789

 

PIVOTAL ACQUISITION CORP.KLDiscovery Inc.

(Exact Name of Registrant as Specified in Itsits Charter)

 

 

Delaware

Delaware

61-1898603

(State or other jurisdictionOther Jurisdiction of

incorporationIncorporation or organization)Organization)

(I.R.S. Employer

Identification No.)

8201 Greensboro Drive

Suite 300

McLean, VA

22102

(Address of Principal Executive Offices)

(Zip Code)

c/o Graubard Miller

The Chrysler Building

405 Lexington Avenue, 11th Floor

New York, New York 10174

(Address of principal executive offices)

(212)818-8800

(Issuer’sRegistrant’s telephone number)number, including area code: (703) 288-3380

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

Trading

Symbol(s)

Name of each exchange

on which registered

Units, each consisting of one share of Class 

N/A common stock and one redeemable warrant

PVT.U

N/A

New York Stock Exchange
Class 

N/A common stock, par value $0.0001 per share

PVTNew York Stock Exchange
Redeemable warrants, exercisable for shares of Class A common stock at an exercise price of $11.50 per sharePVT WSNew York Stock Exchange

CheckIndicate by check mark whether the issuerregistrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the pastpreceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes  YES     No   NO 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of RegulationS-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  YES     No   NO 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”,filer,” “accelerated filer”,filer,” “smaller reporting company”,company,” and “emerging growth company” inRule 12b-2 of the Exchange Act.

 

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

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 registrantRegistrant is a shell company (as defined in Rule12b-2 of the Exchange Act).  Yes  YES  NO     No  ☐

As of November 14, 2019, 23,000,000 sharesMay 11, 2020, there were 42,529,017 of Class Athe registrant’s common stock, par value $0.0001 per share, and 5,750,000 shares of Class B common stock, par value $0.0001 per share, were issued and outstanding, respectively.outstanding.

 

 

 


PIVOTAL ACQUISITION CORP.

FORM10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 2019

TABLE OF CONTENTS

 


Table of Contents

Page

Page

Part I. Financial Information

1

Item 1. Financial Statements

1

Condensed Consolidated Balance Sheets

1

Condensed Consolidated Statements of OperationsLoss

2

Condensed Consolidated Statements of Changes in Stockholders’ Equity

3

Condensed Consolidated Statements of Cash Flows

4

Notes to Unaudited Condensed Consolidated Financial Statements

5

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

9

17

Item 3. Quantitative and Qualitative Disclosures Regarding Market Risk

11

25

Item 4. Controls and Procedures

11

25

Part II. Other Information

27

Item 1. Legal Proceedings

27

Item 1A. Risk Factors

27

Item 5. Unregistered Sales of Equity Securities and Use of Proceeds from Registered Securities

11

27

Item 6. Exhibits

12

27

Part III. Signatures

13

28


PART I—FINANCIALI – FINANCIAL INFORMATION

Pivotal Acquisition Corp.Item 1.     Financial Statements

KLDiscovery Inc.

Condensed Consolidated Balance Sheets

(in thousands, except share and per share amounts)

 

   September 30,
2019
   December 31,
2018
 
   (unaudited)     

ASSETS

    

Current Assets

    

Cash

  $477,134   $19,168 

Prepaid expenses and other current assets

   118,884    —   
  

 

 

   

 

 

 

Total Current Assets

   596,018    19,168 

Deferred offering costs

   —      133,174 

Marketable securities held in Trust Account

   233,279,783    —   
  

 

 

   

 

 

 

Total Assets

  $233,875,801   $152,342 
  

 

 

   

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

    

Current liabilities

    

Accounts payable and accrued expenses

  $305,845   $969 

Income taxes payable

   555,319    —   

Accrued offering costs

   —      2,500 

Promissory note – related party

   —      125,000 
  

 

 

   

 

 

 

Total Current Liabilities

   861,164    128,469 

Deferred underwriting fee

   8,050,000    —   
  

 

 

   

 

 

 

Total Liabilities

   8,911,164    128,469 
  

 

 

   

 

 

 

Commitments

    

Class A Common Stock, subject to possible redemption, 21,752,975 and no shares at redemption value as of September 30, 2019 and December 31, 2018, respectively

   219,964,630    —   

Stockholders’ Equity

    

Preferred Stock, $0.0001 par value; 1,000,000 authorized; none issued and outstanding

   —      —   

Class A Common Stock, $0.0001 par value; 75,000,000 shares authorized; 1,247,025 and no shares issued and outstanding (excluding 21,752,975 and no shares subject to possible redemption) as of September 30, 2019 and December 31, 2018, respectively

   125    —   

Class B Common Stock, $0.0001 par value; 10,000,000 shares authorized; 5,750,000 shares issued and outstanding as of September 30, 2019 and December 31, 2018

   575    575 

Additionalpaid-in capital

   3,293,092    24,425 

Retained earnings (accumulated deficit)

   1,706,215    (1,127
  

 

 

   

 

 

 

Total Stockholders’ Equity

   5,000,007    23,873 
  

 

 

   

 

 

 

TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY

  $233,875,801   $152,342 
  

 

 

   

 

 

 

 

 

March 31, 2020

 

 

December 31, 2019

 

 

 

(unaudited)

 

 

 

 

 

Current assets

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

50,611

 

 

$

43,407

 

Accounts receivable, net of allowance

 

 

 

 

 

 

 

 

for doubtful accounts of $8,210 and $7,486, respectively

 

 

103,319

 

 

 

96,994

 

Prepaid expenses

 

 

14,650

 

 

 

7,296

 

Other current assets

 

 

785

 

 

 

556

 

Total current assets

 

 

169,365

 

 

 

148,253

 

Property and equipment

 

 

 

 

 

 

 

 

Computer software and hardware

 

 

72,077

 

 

 

72,228

 

Leasehold improvements

 

 

26,846

 

 

 

26,963

 

Furniture, fixtures and other equipment

 

 

3,794

 

 

 

3,794

 

Accumulated depreciation

 

 

(68,024

)

 

 

(64,682

)

Property and equipment, net

 

 

34,693

 

 

 

38,303

 

Intangible assets, net

 

 

125,468

 

 

 

130,568

 

Goodwill

 

 

393,157

 

 

 

395,171

 

Other assets

 

 

3,263

 

 

 

2,617

 

Total assets

 

$

725,946

 

 

$

714,912

 

Current liabilities

 

 

 

 

 

 

 

 

Current portion of long-term debt, net

 

$

41,438

 

 

$

11,689

 

Accounts payable and accrued expense

 

 

31,578

 

 

 

31,270

 

Current portion of contingent consideration

 

 

369

 

 

 

340

 

Deferred revenue

 

 

3,517

 

 

 

4,851

 

Total current liabilities

 

 

76,902

 

 

 

48,150

 

Long-term debt, net

 

 

467,521

 

 

 

468,932

 

Contingent consideration

 

 

482

 

 

 

482

 

Deferred tax liabilities

 

 

6,406

 

 

 

6,294

 

Other liabilities

 

 

6,999

 

 

 

7,289

 

Total liabilities

 

 

558,310

 

 

 

531,147

 

Commitments and contingencies

 

 

 

 

 

 

 

 

Stockholders' equity

 

 

 

 

 

 

 

 

Common stock

 

 

 

 

 

 

 

 

$0.0001 par value, shares authorized - 200,000,000 shares authorized

as of March 31, 2020 and December 31, 2019; shares issued and

outstanding - 42,529,017 as of March 31, 2020 and December 31, 2019

 

 

4

 

 

 

4

 

Preferred Stock

 

 

 

 

 

 

 

 

$0.0001 par value, 1,000,000 shares authorized, zero issued

and outstanding as of March 30, 2020 and December 31, 2019

 

 

-

 

 

 

-

 

Additional paid-in capital

 

 

382,777

 

 

 

381,952

 

Accumulated deficit

 

 

(218,024

)

 

 

(205,498

)

Accumulated other comprehensive income

 

 

2,879

 

 

 

7,307

 

Total stockholders' equity

 

 

167,636

 

 

 

183,765

 

Total liabilities and stockholders' equity

 

$

725,946

 

 

$

714,912

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

See Notes to Consolidated Financial Statements.


Pivotal Acquisition Corp.KLDiscovery Inc.

Condensed Consolidated Statements of OperationsComprehensive Loss (Unaudited)

(Unaudited)(in thousands, except share and per share amounts)

 

   Three Months
Ended

September 30,
2019
  Nine Months
Ended

September 30,
2019
  For the
Period from
August 2,
2018
(Inception)
Through
September 30,
2018
 

Operating costs

  $274,695  $1,017,122  $993 
  

 

 

  

 

 

  

 

 

 

Loss from operations

   (274,695  (1,017,122  (993

Other income:

    

Interest income

   1,141,748   3,279,783   —   

Unrealized loss on marketable securities held in Trust Account

   (15,659  —     —   
  

 

 

  

 

 

  

 

 

 

Other income, net

   1,126,089   3,279,783   —   
  

 

 

  

 

 

  

 

 

 

Income (loss) before provision for income taxes

   851,394   2,262,661   (993

Provision for income taxes

   (196,896  (555,319  —   
  

 

 

  

 

 

  

 

 

 

Net income (loss)

  $654,498  $1,707,342  $(993
  

 

 

  

 

 

  

 

 

 

Weighted average shares outstanding, basic and diluted(1)

   6,979,761   6,701,184   5,000,000 
  

 

 

  

 

 

  

 

 

 

Basic and diluted net loss per share(2)

  $(0.03 $(0.11 $(0.00
  

 

 

  

 

 

  

 

 

 

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Revenues

 

$

78,271

 

 

$

75,026

 

Cost of revenues

 

 

39,520

 

 

 

37,455

 

Gross profit

 

 

38,751

 

 

 

37,571

 

 

 

 

 

 

 

 

 

 

Operating expenses

 

 

 

 

 

 

 

 

General and administrative

 

 

15,853

 

 

 

14,844

 

Research and development

 

 

1,667

 

 

 

1,432

 

Sales and marketing

 

 

11,645

 

 

 

12,703

 

Depreciation and amortization

 

 

8,916

 

 

 

9,825

 

Total operating expenses

 

 

38,081

 

 

 

38,804

 

 

 

 

 

 

 

 

 

 

Income (loss) from operations

 

 

670

 

 

 

(1,233

)

 

 

 

 

 

 

 

 

 

Other expenses

 

 

 

 

 

 

 

 

Other expense

 

 

28

 

 

 

97

 

Interest expense

 

 

12,962

 

 

 

12,066

 

Loss before income taxes

 

 

(12,320

)

 

 

(13,396

)

Income tax provision

 

 

206

 

 

 

95

 

 

 

 

 

 

 

 

 

 

Net loss

 

$

(12,526

)

 

$

(13,491

)

 

 

 

 

 

 

 

 

 

Other comprehensive income, net of tax

 

 

 

 

 

 

 

 

Foreign currency translation

 

 

(4,428

)

 

 

810

 

Total other comprehensive income, net of tax

 

 

(4,428

)

 

 

810

 

Comprehensive loss

 

$

(16,954

)

 

$

(12,681

)

 

 

 

 

 

 

 

 

 

Net loss per share - basic and diluted

 

$

(0.29

)

 

$

(0.32

)

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding - basic and diluted

 

 

42,529,017

 

 

 

42,302,775

 

 

(1)

Excludes an aggregate of 21,752,975 shares subject to possible redemption at September 31, 2019. Excludes an aggregate of up to 750,000 shares subject to forfeiture if the underwriters’ option to purchase additional units was not exercised in full or in part at September 30, 2018.

(2)

Net loss per share – basic and diluted excludes interest income attributable to shares subject to possible redemption of $831,541 and $2,434,928 for the three and nine months ended September 30, 2019, respectively (see Note 2).

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

Pivotal Acquisition Corp.See Notes to Consolidated Financial Statements.


Condensed KLDiscovery Inc.

Consolidated Statements of Changes in Stockholders’ Equity

(Unaudited)

For the Period from August 2, 2018 (Inception) Through September 30, 2018(in thousands, except for share amounts)

 

   Class A Common Stock   Class B Common Stock   Additional
Paid in
Capital
   Accumulated
Deficit
  Total
Stockholders’
Equity
 
   Shares   Amount   Shares   Amount 

Balance – August 2, 2018 (inception)

   —     $—      —     $—    $—    $—   $—  

Issuance of Class B common stock to Sponsor(1)

   —      —      5,750,000    575    24,425    —     25,000 

Net loss

   —      —      —      —      —      (993  (993
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

  

 

 

 

Balance – September 30, 2018 (unaudited)

   —     $—      5,750,000   $575   $24,425   $(993 $24,007 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

  

 

 

 
(1)

Included 750,000 shares subject to forfeiture if the underwriters’ option to purchase additional units was not exercised in full or in part.

Three and Nine Months Ended September 30, 2019

 

 

Common Stock Issued

 

 

Additional

paid-in

 

 

Treasury

 

 

Accumulated

 

 

Accumulated

other

comprehensive

 

 

 

 

 

 

 

Shares

 

 

Amount

 

 

capital

 

 

Stock

 

 

deficit

 

 

income

 

 

Total

 

Balance as of December 31, 2019

 

 

42,529,017

 

 

$

4

 

 

$

381,952

 

 

$

-

 

 

$

(205,498

)

 

$

7,307

 

 

$

183,765

 

Share based compensation

 

 

-

 

 

 

-

 

 

 

825

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

825

 

Foreign exchange translation

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(4,428

)

 

 

(4,428

)

Net loss

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(12,526

)

 

 

-

 

 

 

(12,526

)

Balance as of March 31, 2020

 

 

42,529,017

 

 

$

4

 

 

$

382,777

 

 

$

-

 

 

$

(218,024

)

 

$

2,879

 

 

$

167,636

 

 

   Class A Common Stock  Class B Common Stock   Additional
Paid in Capital
  (Accumulated
Deficit) /
Retained
Earnings
  Total
Stockholders’
Equity
 
   Shares  Amount  Shares   Amount 

Balance – January 1, 2019

   —    $—    5,750,000   $575   $24,425  $(1,127 $23,873 

Sale of 23,000,000 Units, net of underwriting discount and offering expenses

   23,000,000   2,300   —      —      216,881,122   —     216,883,422 

Sale of 6,350,000 Private Placement Warrants

   —     —     —      —      6,350,000   —     6,350,000 

Common stock subject to possible redemption

   (21,810,992  (2,181  —      —      (218,711,906  —     (218,714,087

Net income

   —     —     —      —      —     456,797   456,797 
  

 

 

  

 

 

  

 

 

   

 

 

   

 

 

  

 

 

  

 

 

 

Balance – March 31, 2019 (unaudited)

   1,189,008   119   5,750,000    575    4,543,641   455,670   5,000,005 

Change in value of common stock subject to possible redemption

   40,753   4   —      —      (596,047  —     (596,043

Net income

   —     —     —      —      —     596,047   596,047 
  

 

 

  

 

 

  

 

 

   

 

 

   

 

 

  

 

 

  

 

 

 

Balance – June 30, 2019 (unaudited)

   1,229,761   123   5,750,000    575   $3,947,594   1,051,717   5,000,009 

Change in value of common stock subject to possible redemption

   17,264   2   —      —      (654,502  —     (654,500

Net income

   —     —     —      —      —     654,498   654,498 
  

 

 

  

 

 

  

 

 

   

 

 

   

 

 

  

 

 

  

 

 

 

Balance – September 30, 2019 (unaudited)

   1,247,025  $125   5,750,000   $575   $3,293,092  $1,706,215  $5,000,007 
  

 

 

  

 

 

  

 

 

   

 

 

   

 

 

  

 

 

  

 

 

 

 

 

Common Stock Issued

 

 

Additional

paid-in

 

 

Treasury

 

 

Accumulated

 

 

Accumulated

other

comprehensive

(loss)

 

 

 

 

 

 

 

Shares

 

 

Amount

 

 

capital

 

 

Stock

 

 

deficit

 

 

income

 

 

Total

 

Balance as of December 31, 2018

 

 

42,288,870

 

 

$

4

 

 

$

372,316

 

 

$

(2,406

)

 

$

(147,954

)

 

$

6,996

 

 

$

228,956

 

Share based compensation

 

 

52,150

 

 

 

-

 

 

 

910

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

910

 

Foreign exchange translation

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

810

 

 

 

810

 

Net loss

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(13,491

)

 

 

-

 

 

 

(13,491

)

Balance as of March 31, 2019

 

 

42,341,020

 

 

$

4

 

 

$

373,226

 

 

$

(2,406

)

 

$

(161,445

)

 

$

7,806

 

 

$

217,185

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

Pivotal Acquisition Corp.See Notes to Consolidated Financial Statements.


Condensed KLDiscovery Inc.

Consolidated Statements of Cash Flows (Unaudited)

(Unaudited)(in thousands)

 

   Nine Months
Ended
September 30,
2019
  For the
Period from
August 2,
2018
(Inception)
Through
September 30,
2018
 

Cash Flows from Operating Activities:

   

Net income (loss)

  $1,707,342  $(993

Adjustments to reconcile net income (loss) to net cash used in operating activities:

   

Interest earned on marketable securities held in Trust Account

   (3,279,783  —   

Changes in operating assets and liabilities:

   

Prepaid expenses and other current assets

   (118,884  —   

Accounts payable and accrued expenses

   304,876   969 

Income taxes payable

   555,319   —   
  

 

 

  

 

 

 

Net cash used in operating activities

   (831,130  (24
  

 

 

  

 

 

 

Cash Flows from Investing Activities:

   

Investment of cash in Trust Account

   (230,000,000  —   
  

 

 

  

 

 

 

Net cash used in investing activities

   (230,000,000  —   
  

 

 

  

 

 

 

Cash Flows from Financing Activities:

   

Proceeds from issuance of common stock to Sponsor

   —     25,000 

Proceeds from sale of Units, net of underwriting discounts paid

   225,400,000   —   

Proceeds from sale of Private Placement Warrants

   6,350,000   —   

Proceeds from promissory note – related party

   —     125,000 

Repayment of promissory note – related party

   (125,000  —   

Payment of offering costs

   (335,904  (67,500
  

 

 

  

 

 

 

Net cash provided by financing activities

   231,289,096   82,500 
  

 

 

  

 

 

 

Net Change in Cash

   457,966   82,476 

Cash – Beginning

   19,168   —   
  

 

 

  

 

 

 

Cash – Ending

  $477,134  $82,476 
  

 

 

  

 

 

 

Non-cash Investing and Financing Activities:

   

Deferred underwriting fee payable

  $8,050,000  $—  
  

 

 

  

 

 

 

Initial classification of common stock subject to possible redemption

  $218,257,180  $—  
  

 

 

  

 

 

 

Change in value of common stock subject to possible redemption

  $1,707,450  $—  
  

 

 

  

 

 

 

Deferred offering costs included in accrued offering costs

  $—   $2,500 
  

 

 

  

 

 

 

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Operating activities

 

 

 

 

 

 

 

 

Net loss

 

$

(12,526

)

 

$

(13,491

)

Adjustments to reconcile net loss to net cash

 

 

 

 

 

 

 

 

used in operating activities:

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

11,837

 

 

 

12,534

 

Non-cash interest

 

 

4,507

 

 

 

1,167

 

Stock-based compensation

 

 

825

 

 

 

910

 

Provision for losses on accounts receivable

 

 

784

 

 

 

633

 

Deferred income taxes

 

 

112

 

 

 

(106

)

Change in fair value of contingent consideration

 

 

29

 

 

 

-

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

 

Accounts receivable

 

 

(7,487

)

 

 

(3,348

)

Prepaid expenses and other assets

 

 

(8,151

)

 

 

(9,170

)

Accounts payable and accrued expenses

 

 

(588

)

 

 

(6,686

)

Deferred revenue

 

 

(1,298

)

 

 

(783

)

 

 

 

 

 

 

 

 

 

Net cash used in operating activities

 

 

(11,956

)

 

 

(18,340

)

Investing activities

 

 

 

 

 

 

 

 

Acquisitions, net of cash acquired

 

 

(2,334

)

 

 

-

 

Purchases of property and equipment

 

 

(2,767

)

 

 

(2,182

)

Net cash used in investing activities

 

 

(5,101

)

 

 

(2,182

)

Financing activities

 

 

 

 

 

 

 

 

Revolving credit facility - draws

 

 

29,000

 

 

 

11,000

 

Revolving credit facility - repayments

 

 

-

 

 

 

(5,000

)

Payments for capital lease obligations

 

 

(224

)

 

 

(157

)

Payments on long-term debt

 

 

(4,250

)

 

 

(4,250

)

Net cash provided by financing activities

 

 

24,526

 

 

 

1,593

 

Effect of foreign exchange rates

 

 

(265

)

 

 

22

 

Net increase (decrease) in cash

 

 

7,204

 

 

 

(18,907

)

Cash at beginning of period

 

 

43,407

 

 

 

23,439

 

Cash at end of period

 

$

50,611

 

 

$

4,532

 

Supplemental disclosure:

 

 

 

 

 

 

 

 

Cash paid for interest

 

$

8,704

 

 

$

11,022

 

Income taxes (refunds) paid, net of refunds

 

$

(266

)

 

$

317

 

Significant noncash investing and financing activities

 

 

 

 

 

 

 

 

Purchases of property and equipment in accounts payable

 

 

 

 

 

 

 

 

and accrued expenses on the consolidated balance sheets

 

$

931

 

 

$

112

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

PIVOTAL ACQUISITION CORP.See Notes to Consolidated Financial Statements.


NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTSKLDiscovery Inc.

SEPTEMBER 30,Notes to Consolidated Financial Statements (Unaudited)

For the Three Months Ended March 31, 2020 and 2019

(Unaudited)

Note 1 Organization, business and Plansummary of Business Operationssignificant accounting policies

Organization

KLDiscovery Inc. (the “Company”) provides technology-based litigation support solutions and services including computer e-discovery, data hosting, and managed review predominantly to top law firms, corporations and government agencies. The majority of the Company’s current business is derived from these services. The Company’s headquarters is located in McLean, Virginia and has more than 40 locations in 19 countries, 10 data centers and 22 data recovery labs around the globe.

The Company was originally incorporated under the name Pivotal Acquisition Corp.  (the “Company”(“Pivotal”) was incorporated in Delaware on August 2, 2018 as a blank check company whose objective is to acquire, throughon August 2, 2018 under the laws of the State of Delaware for the purpose of entering into a merger, capital stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (a “Business Combination”).entities.

All activity through September 30,On December 19, 2019, relates toPivotal acquired the Company’s formation, the Company’s initial public offering of 23,000,000 units (the “Offering”), the simultaneous sale of 6,350,000 warrants (the “Private Placement Warrants”) in a private placement to Pivotal Acquisition Holdings LLC (the “Sponsor”), an entity affiliated with the Company’s executive officers, the Company’s search for a target business with which to complete a Business Combination and the proposed acquisitionoutstanding shares of LD Topco, Inc. (“LD”via a reverse capitalization (the “Business Combination”), as more fully described in Note 6. and was renamed KLDiscovery Inc.

The Company has one subsidiary, Pivotal Merger Sub Corp., a wholly owned subsidiaryPrinciples of the Company incorporated in Delaware on May 17, 2019 (“Merger Sub”), which was formed solely to effectuate the Merger described in Note 6.

Liquidity

The Company has principally financed its operations from inception using proceeds from the sale of its equity securities to its stockholders prior to the Offering and such amount of proceeds from the Offering that were placed in an account outside of the Trust Account for working capital purposes. As of September 30, 2019, the Company had $477,134 of cash held outside of the Trust Account.

Note 2 — Significant Accounting Policies

Basis of presentationconsolidation

The accompanying unaudited condensed consolidated financial statements have beenare prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim financial information and in accordance with the instructions to Form10-Q and Article 8 of RegulationS-X of the Securities and Exchange Commission (“SEC”). Certain information or footnote disclosures normally included in financial statements prepared in accordance with GAAP have been condensed or omitted, pursuant to the rules and regulations of the SEC for interim financial reporting. Accordingly, they do not include all the information and footnotes necessary for a comprehensive presentation of financial position, results of operations, or cash flows. In the opinion of management, the accompanying unaudited condensed consolidated financial statements include all adjustments, consisting of a normal recurring nature, which are necessary for a fair presentation of the financial position, operating results and cash flows for the periods presented.

The accompanying unaudited condensed consolidated financial statements should be read in conjunction with the Company’s Annual Report on Form10-K for the period from August 2, 2018 (inception) through December 31, 2018 as filed with the SEC on April 1, 2019, which contains the audited financial statements and notes thereto. The financial information as of December 31, 2018 is derived from the audited financial statements presented in the Company’s Annual Report on Form10-K for the period from August 2, 2018 (inception) through December 31, 2018. The interim results for the three and nine months ended September 30, 2019 are not necessarily indicative of the results to be expected for the year ending December 31, 2019 or for any future interim periods.

Principles of consolidation

The accompanying condensed consolidated financial statements include the accounts of the CompanyKLDiscovery and all of its wholly owned subsidiary.subsidiaries. All significant intercompany balancesaccounts and transactions have been eliminated inupon consolidation.

The Business Combination was accounted for as a reverse recapitalization in accordance with Accounting Standard Codification (“ASC”) 805, Business Combinations. For accounting and financial reporting purposes, LD Topco, Inc. is considered the acquirer based on facts and circumstances, including the following:

LD Topco, Inc.’s operations comprise the ongoing operations of the combined entity;

The officers of the newly combined company consist of LD Topco, Inc.’s executives, including the Chief Executive Officer, Chief Financial Officer and General Counsel; and

The former shareholders of LD Topco, Inc. own a majority voting interest in the combined entity.

As a result of LD Topco, Inc. being the accounting acquirer, the financial reports filed with the SEC by the Company subsequent to the Business Combination are prepared “as if” LD Topco, Inc. is the predecessor and legal successor to the Company. The historical operations of LD Topco, Inc. are deemed to be those of the Company. Thus, the financial statements included in this report reflect (i) the historical operating results of LD Topco, Inc. prior to the Business Combination; (ii) the combined results of the Company and LD Topco, Inc. following the Business Combination on December 19, 2019 (the “Closing Date”); (iii) the assets and liabilities of LD Topco, Inc. at their historical cost; and (iv) KLDiscovery Inc.’s equity structure for all periods presented. The recapitalization of the number of shares of common stock attributable to the purchase of LD Topco, Inc. in connection with the Business Combination is reflected retroactively to January 1, 2018 and will be utilized for calculating earnings per share in all prior periods presented. No step-up basis of intangible assets or goodwill was recorded in the Business Combination transaction consistent with the treatment of the transaction as a reverse capitalization of LD Topco, Inc.


Use of estimates

The preparation of consolidated financial statements in conformity with U.S. 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.

Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate, could changedisclosures in the near term due to one or more future confirming events. Accordingly, theconsolidated financial statements. Although actual results could differ significantlyfrom those estimates, management does not believe that such differences would be material.

Significant estimates include, but are not limited to, the allowance for doubtful accounts, determining the fair values of assets acquired and liabilities assumed, the recoverability and useful lives of property and equipment, intangible assets, and other long-lived assets, the impairment of goodwill, the valuation and realization of deferred income taxes, the fair value of the Company’s common stock and stock option awards, and acquisition-related contingent consideration.

Segments, concentration of credit risk and major customers

The Company operates in one business segment, providing technology-based litigation support solutions and services.

Financial instruments, which potentially expose the Company to concentrations of credit risk, consist principally of cash and accounts receivable. The Company places its cash with a banking institution where the balances, at times, exceed federally insured limits. Management believes the risks associated with these deposits are limited.

With respect to accounts receivable, the Company performs ongoing evaluations of its customers, generally grants uncollateralized credit terms to its customers, and maintains an allowance for doubtful accounts based on historical experience and management’s expectations of future losses. As of and for the three months ended March 31, 2020 and 2019, the Company did not have a single customer that represented more than five percent (5%) or more of its consolidated revenues or accounts receivable. The Company believes that the geographic and industry diversity of the Company’s customer base throughout the U.S. and internationally minimizes the risk of incurring material losses due to concentrations of credit risk.

Foreign currency

Results of operations for the Company’s non-U.S. subsidiaries are translated from the designated functional currency to the reporting currency of the U.S. dollar. Revenues and expenses are translated at average exchange rates for each month, while assets and liabilities are translated at balance sheet date exchange rates. Resulting net translation adjustments are recorded as a component of stockholders’ equity in “Accumulated other comprehensive income” in the Company’s estimates.

Condensed Consolidated Balance Sheets.

PIVOTAL ACQUISITION CORP.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2019

(Unaudited)Transaction gains and losses arising from currency exchange rate fluctuations on transactions denominated in a currency other than the local functional currency are included in “Other expense” in the Company’s Consolidated Statements of Comprehensive Loss. Such transaction gains and losses may be realized or unrealized depending upon whether the transaction settled during the period or remains outstanding at the balance sheet date.

Cash and marketable securities heldcash equivalents

The Company considers all highly liquid financial instruments with an original maturity of three months or less when purchased to be cash equivalents.

Accounts receivable

Accounts receivable are recorded at original invoice amount less an estimate for doubtful receivables based on a review of outstanding amounts monthly. Management determines the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s financial condition and credit history. Accounts receivable are written off when deemed uncollectible. Recoveries of trade accounts receivable previously written off are recorded when received.

Computer software, property and equipment

Computer software, property and equipment are recorded at cost. Depreciation is calculated using the straight-line method over the following estimated useful lives of the assets:

Computer software and hardware

3 to 5 years

Leasehold improvements

Shorter of lease term or useful life

Furniture, fixtures and other equipment

3 to 5 years


Gains or losses on disposals are included in Trust Accountresults of operations at amounts equal to the difference between the net book value of the disposed assets and the proceeds received upon disposal. Costs for replacements and betterments are capitalized, while the costs of maintenance and repairs are expensed as incurred. Property under capital leases are depreciated using the straight-line method over the lease term.

At September 30,Depreciation expense totaled $4.3 million and $5.0 million for the three months ended March 31, 2020 and 2019, respectively, and includes amortization of assets recorded under capital leases.

Internal-use software development costs

The Company capitalizes certain internal computer software costs incurred during the application development stage. The application development stage generally includes software design and configuration, coding, testing and installation activities. Training and maintenance costs are expensed as incurred, while upgrades and enhancements are capitalized if it is probable that such expenditure will result in additional functionality. Capitalized software costs are depreciated over the estimated useful life of the underlying project on a straight-line basis. The Company’s estimated useful life of capitalized software costs varies between three and five years, depending on management’s expectation of the economic life of various software. Capitalized software depreciation costs are recorded as a component of cost of revenue.

Capitalized software costs are reflected as part of “Intangible assets, heldnet” in the Trust AccountCompany’s Consolidated Balance Sheets and totaled $15.3 million and $13.5 million, net of accumulated amortization, as of March 31, 2020 and December 31, 2019, respectively.

Goodwill

Goodwill represents the excess of the total consideration paid over identified intangible and tangible assets of the Company and its acquisitions. The Company tests its goodwill for impairment at the reporting unit level on an annual basis on October 1, and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying value. These events or circumstances could include a significant change in the business climate, legal factors, operating performance indicators, competition, or sale or disposition of a significant portion of a reporting unit. As of the October 1 testing date the Company determined there is one entity-wide reporting unit.

The Company considered COVID-19 as an indicator of impairment to the value of goodwill and intangible assets and performed a qualitative assessment. Management considered factors that could be affected by COVID-19 such as impact to stock price, consequences of “stay-at-home” orders, impacts to competitors due to COVID-19, changes in demand, and updates to the Company forecasts among other factors.  Management concluded that there was no impairment during the three months ended March 31, 2020.

Debt issuance costs

Debt issuance costs are stated at cost, net of accumulated amortization, and are amortized over the term of the debt using both the straight-line and the effective yield methods. U.S. GAAP requires that the effective yield method be used to amortize debt acquisition costs; however, if the effect of using the straight-line method is not materially different from the results that would have been obtained under the effective yield method, the straight-line method may be used. The amortization for funded term debt is calculated according to the effective yield method and revolving and unfunded term debt is calculated according to the straight-line method. Debt issuance costs related to funded term debt is presented in the Consolidated Balance Sheets as a direct deduction from the carrying amount of the debt liability, consistent with debt discounts or premiums. Debt issuance costs related to revolving and unfunded term debt is presented in “Other (current) assets” in the Company’s Consolidated Balance Sheets.

Revenue recognition

The Company adopted Accounting Standards Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers (“ASC 606”), effective January 1, 2019, utilizing the modified retrospective method. The Company’s adoption of ASC 606 did not result in material changes to the Company’s revenue recognition.

As an Emerging Growth Company, as defined in the Jumpstart Our Business Startups Act of 2012 (“the JOBS Act”), the JOBS Act allowed us to delay adoption of new or revised accounting pronouncements applicable to public companies until December 31, 2019, which is when such pronouncements are made applicable to private companies.  We elected to use this extended transition period and there were substantially investedno material differences for revenue recognition between the three months ended March 31, 2020 and March 31, 2019.

Revenues are recognized when the Company satisfies a performance obligation by transferring goods or services promised in money market funds.a contract to a customer, in an amount that reflects the consideration that the Company expects to receive in exchange for those


services. Performance obligations in the Company’s contracts represent distinct or separate service streams that are provided to its customers.

The Company evaluates its revenue contracts with customers based on the five-step model under ASC 606: (1) identify the contract with the customer; (2) identify the performance obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to separate performance obligations; and (5) recognize revenues when (or as) each performance obligation is satisfied.

The following table summarizes revenue from contracts with customers for the three months ended March 31, 2020 (in thousands):

 

 

Three Months Ended March 31, 2020

 

eDiscovery services

 

$

53,633

 

Managed review

 

 

13,126

 

Legal technology services

 

 

66,759

 

Data recovery

 

 

11,512

 

Total revenue

 

$

78,271

 

Net lossLoss per common shareCommon Share

NetBasic net loss per common share is computeddetermined by dividing net loss by the weighted average number of common shares outstanding forduring the period. The Company applies thetwo-class method in calculating earnings per share. Shares of common stock subject to possible redemption at September 30, 2019, which are not currently redeemable and are not redeemable at fair value, have been excluded from the calculation of basic loss per share since such shares, if redeemed, only participate in their pro rata share of the Trust Account earnings. The Company has not considered the effect of warrants to purchase 29,350,000 shares of Class A common stock that were sold in the Offering and the private placement in the calculation of diluted loss per share, since the exercise of the warrants is contingent upon the occurrence of future events. As a result, diluted loss per share is the same as basic loss per share for the period presented.

Reconciliation ofDiluted net loss per common share is determined by dividing net loss by the weighted average number of common shares outstanding during the period, plus the dilutive effect of common stock equivalents, including stock options and restricted shares. Common stock and common stock equivalents included in the computation represent shares issuable upon assumed exercise of outstanding stock options and release of restricted shares, except when the effect of their inclusion would be antidilutive.

On December 19, 2019, the Company completed a reverse merger with Pivotal Acquisition Corp. whereby the Company received 34,800,000 shares for its outstanding 3,707,564 shares, effecting a 1-to-9.3862 stock exchange. The Company’s net income is adjustedper share amounts have been updated to show the effect of the exchange on earnings per share as if the exchange occurred at the beginning of both years for the portion of income that is attributable to common stock subject to possible redemption, as these shares only participate in the earnings of the Trust Account and not the income or lossesquarterly financial statements of the Company. Accordingly, basic and diluted loss per shareThe impact of the stock exchange is calculated as follows:

   Three Months
Ended
September 30,
2019
   ne Months
Ended
September 30,
2019
   For the
Period from
August 2,
2018
(Inception)
Through
September 30,

2018
 

Net income (loss)

  $654,498   $1,707,342   $(993

Less: Income attributable to common stock subject to possible redemption

   (831,541   (2,434,928   —   
  

 

 

   

 

 

   

 

 

 

Adjusted net loss

  $(177,043  $(727,586  $(993
  

 

 

   

 

 

   

 

 

 

Weighted average shares outstanding, basic and diluted

   6,979,761    6,701,184    5,000,000 
  

 

 

   

 

 

   

 

 

 

Basic and diluted net loss per common share

  $(0.03  $(0.11  $(0.00
  

 

 

   

 

 

   

 

 

 

Recent accounting pronouncements

Management does not believe that any recently issued, but not yet effective, accounting pronouncements, if currently adopted, would have a material effectalso shown on the Company’s condensed consolidated financial statements.Statements of Stockholders’ Equity.

Note 3 — Public OfferingAccounting Standards Not Yet Adopted

Pursuant to the Offering, the Company sold 23,000,000 Units at a price of $10.00 per Unit, including 3,000,000 Units subject to the underwriters’ over-allotment option. Each Unit consists of one share of Class A common stock and one redeemable warrant (“Public Warrant”). Each Public Warrant entitles the holder to purchase one share of Class A common stock at a price of $11.50 per share, subject to adjustment.

Note 4 — Commitments

The underwriters of the Offering are entitled to a deferred fee of three andone-half percent (3.5%) of the gross proceeds of the Offering, or $8,050,000. The deferred fee will be paid in cash upon the closing of a Business Combination from the amounts held in the Trust Account, subject to the terms of the underwriting agreement executed in connection with the Offering.

PIVOTAL ACQUISITION CORP.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2019

(Unaudited)

On February 4, 2019, a managing member of the Sponsor entered into a forward purchase contract with the Company to purchase, in a private placement to occur concurrently with the consummation of the Company’s initial Business Combination, up to $150,000,000 of the Company’s securities subject to certain conditions. In connection with the signing of the Merger Agreement (defined below), the managing member of the Sponsor indicated that up to $50,000,000 of the commitment could be utilized in connectiontransaction with the Merger (defined below) if necessary, to satisfy the minimum cash requirement under the Merger Agreement. ExceptPivotal, as discussed in Note 8, theremore detail in “Note 2, Acquisitions”, the Company elected to be an Emerging Growth Company under the JOBS Act and take advantage of the extended transition period of delaying the adoption of new or revised accounting standards until such time as those standards apply to private companies. This may make the comparison of the Company’s consolidated financial statements to other public companies not meaningful due to the differences in accounting standards being applied.

In February 2016, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2016-02, Leases (Topic 842), which requires lessees to recognize on the balance sheet a right-of-use asset, representing their right to use the underlying asset for the lease term, and a lease liability for all leases with terms greater than 12 months. The guidance also requires qualitative and quantitative disclosures designed to assess the amount, timing and uncertainty of cash flows arising from leases. The standard requires the use of a modified retrospective transition approach, which includes a number of optional practical expedients that entities may elect to apply. This standard is effective for the Company for fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022, and the Company is currently no binding commitment or agreementevaluating the impact that Topic 842 will have on its consolidated financial statements.

In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. This guidance is intended to purchase any securities and the amount, type and number of securities to be purchased by the managing member of the Sponsor, if any, will not be known untilintroduce a later date. Accordingly, the managing member of the Sponsor may not agree to purchase any securities, in which case the Company may need to arrange alternate financing to complete the Business Combination.

The Company’s stockholders priorrevised approach to the Offering (the “Initial Stockholders”), the holdersrecognition and measurement of the Private Placement Warrants (and underlying shares of Class A common stock) and the holders of any securities issued upon conversion of working capital loans made by the Company’s Sponsor, officers, directors or their affiliates or pursuant to the forward purchase contract, are entitled to registration rights with respect to their securities pursuant tocredit losses, emphasizing an agreement dated as of January 31, 2019. The holders of the majority of the securities are entitled to demand that the Company register these securities at any time commencing after expiration of the transfer restrictions. In addition, the holders have certain “piggy-back” registration rightsupdated model based on registration statements filed after the Company’s consummation of a Business Combination.

Note 5 — Stockholders’ Equity

Preferred Stock

expected losses rather than incurred losses. The Company is authorizedrequired to issue 1,000,000 shares of preferred stock with a par value of $0.0001 per share with such designation, rightsadopt ASC 326 effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years, and preferences as may be determined from timethe Company is currently evaluating the impact that Topic 326 will have on its consolidated financial statements.

In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes, which simplifies the accounting for income taxes by removing certain exceptions to time by the Company’s board of directors. As of September 30, 2019general principles for income taxes. The new standard is effective for fiscal years and interim periods within those fiscal years, beginning after December 31, 2018, there are no shares of preferred stock issued or outstanding.

Common Stock

15, 2020. Early adoption, including the adoption in any interim period, is permitted for all entities. The Company is authorizedcurrently evaluating the potential impact of adoption of the pronouncement on its consolidated financial statements but does not expect the impact to issue 75,000,000 shares of Class A common stock and 10,000,000 shares of Class B common stock, both with a par value of $0.0001 per share. As of September 30, 2019 and December 31, 2018, there were 1,247,025 and no shares of Class A common stock issued and outstanding, respectively, excluding 21,752,975 and no shares subject to possible redemption, respectively, and 5,750,000 shares of Class B common stock issued and outstanding.be material.


Note 2 – Acquisitions

Note 6 — Merger Agreement

Pivotal Acquisition Corp.

On May 20,December 19, 2019, as amended on October 30, 2019,Pivotal, the Company entered into an Agreement and Plan of Reorganization (“Merger Agreement”) by and amonglegal predecessor company, consummated the Company, Merger Sub, LD and Carlyle Equity Opportunity GP, L.P. (solely as representative of the stockholders of LD).

Pursuant to the Merger Agreement, Merger Sub will merge with and into LD,Business Combination with LD surviving the merger (the “Merger” and together with the other transactions contemplated by the Merger Agreement, the “Transactions”). As a result of the Transactions, LD will become a wholly owned subsidiary of the Company, with theTopco, Inc. The stockholders of LD becoming securityholders of the Company. In connection with the Merger Agreement, the stockholders of LD will receiveTopco, Inc. received an aggregate of 34,800,000 shares of the Company’sPivotal common stock. The former stockholders of LD willTopco, Inc. also have the right to receive up to 2,200,000 shares of the Company’s common stock if (i) a change in control occurs or (ii) the reported closing sale price of the Company’s common stock exceeds $13.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations or other similar actions) for any 20 consecutive trading days during the five-year period following the closing of the Transactions.Business Combination.  The Company also assumed 29,500,000 warrants, each of which entitles the holder to purchase shares of the Company’s common stock beginning on January 18, 2020 at an exercise price of $11.50 per share as part of the Business Combination.

As part of the Business Combination, on December 19, 2019, the Company issued $200 million aggregate principal amount of 8% convertible debentures (“Debentures”) due in 2024. The Transactions will be consummated subjectproceeds of the Debentures were used in part to the deliverablesrepay LD Topco Inc.’s outstanding Second Lien Facility (as defined below) and provisions as further described in the Merger Agreement.

amounts outstanding under its Revolving Credit Facility (as defined below).

PIVOTAL ACQUISITION CORP.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2019

(Unaudited)

Note 7 —3 – Fair Value Measurementsvalue measurements

The Company follows the guidanceaccounts for recurring and non-recurring fair value measurements in accordance with ASC 820, Fair Value Measurements (“ASC 820”). ASC 820 defines fair value, establishes a fair value hierarchy for itsassets and liabilities measured at fair value, and requires expanded disclosures about fair value measurements. The ASC 820 hierarchy ranks the quality of reliability of inputs, or assumptions, used in the determination of fair value, and requires assets and liabilities carried at fair value to be classified and disclosed in one of the following three categories:

Level 1 – Fair value is determined by using unadjusted quoted prices that are available in active markets for identical assets and liabilities.

Level 2 – Fair value is determined by using inputs other than Level 1 quoted prices that are directly or indirectly observable. Inputs can include quoted prices for similar assets and liabilities in active markets or quoted prices for identical assets and liabilities in inactive markets. Related inputs can also include those used in valuation or other pricing models, such as interest rates and yield curves that can be corroborated by observable market data.

Level 3 – Fair value is determined by inputs that are unobservable and not corroborated by market data. Use of these inputs involves significant and subjective judgments to be made by a reporting entity – e.g., determining an appropriate adjustment to a discount factor for illiquidity associated with a given security.

The Company evaluates financial assets and liabilities subject to fair value measurements on a recurring basis to determine the appropriate level at which to classify them each reporting period. This determination requires significant judgments to be made by the Company.

The Company believes that arere-measuredthe fair values of its current assets and current liabilities (cash, accounts receivable, accounts payable, and other current liabilities) approximate their reported carrying amounts.

The Company estimates the fair value of contingent purchase consideration based on the present value of the consideration expected to be paid during the remainder of the earn-out period, based on management’s assessment of the acquired operations’ forecasted earnings. This fair value measure is based on significant inputs not observed in the market and thus represents a Level 3 measurement.  During 2019, the Company acquired three companies for total consideration of $5.5 million, of which $2.0 million was in cash, $1.5 million was in deferred payments, $1.2 million was in stock and $0.8 million related to future earn outs.  The fair value of future expected acquisition-related contingent consideration obligations was $0.9 million and $0.8 million at March 31, 2020 and December 31, 2019, respectively.

The significant unobservable inputs used in the fair value measurements of the Company’s contingent purchase consideration include its measures of the future profitability and related cash flows of the acquired business or assets, impacted by appropriate discount rates. Significant increases (decreases) in any of these individual inputs would result in a significantly lower (higher) fair value measurement. Generally, a change in the assumptions used for the discount rates is indirectly proportional to the fair value of contingent purchase consideration and a change in the assumptions used for the future cash flows is directly proportional to the fair value of contingent purchase consideration. The Company, using additional information as it becomes available, reassesses the fair value of the contingent purchase consideration on a quarterly basis.

Any change in the fair value of contingent consideration liability results in a remeasurement gain or loss that is recorded as income or expense in the Company’s Consolidated Statements of Comprehensive Loss.


The following table provides a reconciliation of liabilities measured at fair value using significant unobservable inputs (Level 3) for the periods ended March 31, 2020 and December 31, 2019 (in thousands):

Balance at December 31, 2018

 

$

-

 

Contingent consideration

 

 

774

 

Change in fair value of contingent consideration

 

 

48

 

Balance at December 31, 2019

 

$

822

 

Contingent consideration

 

 

-

 

Payment of contingent consideration

 

 

-

 

Change in fair value of contingent consideration

 

 

29

 

Balance at March 31, 2020

 

$

851

 

Management estimates that the carrying amount of the Company’s long-term debt approximates its fair value because the interest rates on these instruments are subject to changes in market interest rates or are consistent with prevailing interest rates.

Note 4 – Leasing arrangements

The Company leases office space and certain equipment under operating and capital lease agreements, expiring in various years through 2027. Certain leases contain annual rent escalation clauses.

Rent expense totaled $3.8 million and $3.6 million for the three months ended March 31, 2020 and 2019, respectively.

For years subsequent to March 31, 2020, future minimum payments for all operating and capital lease obligations that have initial non-cancelable lease terms exceeding one year, net of rental income from subleases are as follows (in thousands):

December 31,

 

Capital Leases

 

 

Operating Leases

 

2020 (9 months)

 

$

1,353

 

 

$

8,438

 

2021

 

 

1,586

 

 

 

10,307

 

2022

 

 

1,346

 

 

 

8,408

 

2023

 

 

721

 

 

 

7,707

 

2024

 

 

-

 

 

 

6,598

 

Thereafter

 

 

-

 

 

 

13,095

 

Total

 

$

5,006

 

 

$

54,553

 

Less interest on lease obligations

 

 

(635

)

 

 

 

 

 

 

 

4,371

 

 

 

 

 

Less current portion

 

 

(1,353

)

 

 

 

 

Non-current portion

 

$

3,018

 

 

 

 

 

Note 5 – Long term debt

The table below summarizes the components of the Company’s long-term debt (in thousands):

 

 

March 31, 2020

 

 

December 31, 2019

 

First lien facility due 2022

 

$

301,750

 

 

$

306,000

 

Revolver

 

 

29,000

 

 

 

-

 

Convertible debenture notes due 2024

 

 

202,289

 

 

 

200,000

 

Total debt

 

 

533,039

 

 

 

506,000

 

Less: unamortized original issue discount

 

 

(18,905

)

 

 

(19,806

)

Less: unamortized debt issuance costs

 

 

(5,175

)

 

 

(5,573

)

Total debt, net

 

 

508,959

 

 

 

480,621

 

 

 

 

 

 

 

 

 

 

Current portion of debt

 

 

17,000

 

 

 

17,000

 

Revolver

 

 

29,000

 

 

 

-

 

Less: current portion of unamortized original issue discount

 

 

(3,308

)

 

 

(3,687

)

Less: current portion of unamortized debt issuance costs

 

 

(1,254

)

 

 

(1,624

)

Total current portion of debt, net

 

 

41,438

 

 

 

11,689

 

Total long term debt, net

 

$

467,521

 

 

$

468,932

 


2016 Credit Agreement

On December 9, 2016, certain subsidiaries of the Company entered into a Credit Agreement (as amended or supplemented to date, the “2016 Credit Agreement”) with a group of lenders to establish term loan facilities and a revolving line of credit for borrowings by LD Intermediate, Inc. and LD Lower Holdings, Inc. (the “Initial Term Loans”). The Initial Term Loan borrowings of $340.0 million (“First Lien Facility”) and $125.0 million (“Second Lien Facility”) were to mature on December 9, 2022 and December 9, 2023, respectively.

The First Lien Facility established a term loan principal payment schedule with payments due on the last day of each calendar quarter beginning on March 31, 2017 of $2.1 million. Quarterly principal payments increased to $4.3 million beginning on March 31, 2019 with a balloon payment of $259.3 million due at maturity. The interest rate for the First Lien Facility adjusts every interest rate period, which can be one, two, three or six months in duration and is decided by the Company, or to the extent consented to by all Appropriate Lenders (as defined in the 2016 Credit Agreement), twelve months thereafter. Interest payment dates include the last day of each interest period and any maturity dates of the First Lien Facility; however, if any interest period exceeds three months, the respective dates that fall every three months after the beginning of an interest period is also an interest payment date. For each interest period, the interest rate per annum is 5.875% plus the Adjusted Eurocurrency Rate which is defined as an amount equal to the Statutory Reserve Rate (as defined in the 2016 Credit Agreement) multiplied by the greatest of a) LIBOR, b) 0.00% per annum and c) solely with respect to the Initial Term Loans, 1.00% per annum. At March 31, 2020, the balance due was $301.8 million with an interest rate of 5.875% plus an Adjusted Eurocurrency Rate of 1.900%.  At December 31, 2019, the balance due was $306.0 million with an interest rate of 5.875% plus an Adjusted Eurocurrency Rate of 2.61463%.

The Second Lien Facility required a balloon payment of $125.0 million due at maturity. The interest rate for the Second Lien Facility adjusted every interest rate period, which could have been one, two, three or six months in duration and was decided by the Company, or to the extent consented to by all Appropriate Lenders (as defined in the 2016 Credit Agreement), twelve months thereafter. Interest payment dates included the last day of each interest period and any maturity dates of the Second Lien Facility; however, if any interest period exceeded three months, the respective dates that fall every three months after the beginning of an interest period was also an interest payment date. For each interest period, the interest rate per annum was 10.0% plus the Adjusted Eurocurrency Rate which was defined as an amount equal to the Statutory Reserve Rate (as defined in the 2016 Credit Agreement) multiplied by the greatest of a) LIBOR, b) 0.00% per annum and c) solely with respect to the Initial Term Loans, 1.00% per annum. At December 19, 2019, the Second Lien Facility was paid off and closed.  

The First Lien Facility is secured by substantially all the Company’s assets and contain financial covenants. As of March 31, 2020 and December 31, 2019, the Company was in compliance with all covenants.

The 2016 Credit Agreement includes a mandatory prepayment within ten days after delivery of the annual audited financial statements commencing with the year ending December 31, 2016, in an amount equal to the Excess Cash Flow Percentage of Excess Cash Flow for such Fiscal Year, as defined in the 2016 Credit Agreement. There were no mandatory prepayments with respect to three months ended March 31, 2020 and 2019.

Revolver

The 2016 Credit Agreement also provides for unfunded revolver commitment for borrowing up to $30.0 million, maturing December 9, 2021 (the “Revolving Credit Facility”). Borrowings under the Revolving Credit Facility may be limited by certain financial covenants of the 2016 Credit Agreement including the First Lien Net Leverage Ratio. The Company may draw up to $30.0 million, on a term loan basis, with an adjustable interest rate of 5.375%, 5.625%, or 5.875% based on the First Lien Net Leverage Ratio plus an amount equal to the LIBOR. As of March 31, 2020, there were $29.0 million outstanding under the Revolving Credit Facility. No amounts were outstanding under the Revolving Credit Facility as of December 31, 2019.

As of March 31, 2020, there were $0.2 million available capacity for borrowing under the revolving loan commitment due to the $29.0 million outstanding under the Revolving Credit Facility and the $0.8 million of letters of credit outstanding (See Note 10 – Commitments and contingencies).

Convertible Debentures

On December 19, 2019, the Company issued the Debentures in an aggregate principal amount of $200 million. The proceeds of the Debentures were used in part to repay the Company’s outstanding Second Lien Facility and amounts then outstanding under the Revolving Credit Facility.

The Debentures will mature on December 19, 2024 unless earlier converted, redeemed or repurchased. The Debentures will bear interest at an annual rate of 4.00% in cash, payable quarterly, and 4.00% in kind, accrued quarterly, on the last business day of March, June, September and December. In addition, on each anniversary of the Closing Date, the Company will add to the principal amount (subject to reduction for any principal amount repaid) of the Debentures an amount equal to 3.00% of the original aggregate principal amount of the Debentures outstanding. The additional payment will accrue from the last payment date for the additional payment (or the Closing Date if no prior payment has been made), and will also be payable at maturity, upon conversion and upon an optional redemption.


At any time, upon notice as set forth in the Debentures, the Debentures will be redeemable at the Company’s option, in whole or in part, at a price equal to 100% of the principal amount of the Debentures redeemed, plus accrued and unpaid interest thereon.

Subject to approval to allow for the full conversion of the Debentures into common stock, the Debentures will be convertible into shares of the Company’s common stock at the option of the Debenture holders at any time and from time to time at a price of $18 per share, subject to certain adjustments. However, in the event the Company elects to redeem any Debentures, the holders will have a right to purchase common stock from the Company in an amount equal to the amount redeemed at the conversion price.

The Debentures contain covenants that limit the Company’s ability to, among other things: (i) incur additional debt; (ii) create liens on assets; (iii) engage in certain transactions with affiliates; or (iv) designate the Company’s subsidiaries as unrestricted subsidiaries. The Debentures provide for customary events of default, including non-payment, failure to comply with covenants or other agreements in the Debentures and certain events of bankruptcy or insolvency. If an event of default occurs and continues, the holders of at least 25% in aggregate principal amount of the outstanding Debentures may declare the entire principal amount of all the Debentures to be due and payable immediately. As of March 31, 2020 and December 31, 2019, the Company was in compliance with all covenants.

Note 6 – Equity incentive plan

On December 19, 2019, the Company adopted the 2019 Incentive Award Plan (the “2019 Plan”) under which eligible employees, officers, directors and consultants of the Company may be granted incentive or non-qualified stock options, restricted stock, restricted stock units, or other stock-based awards, including shares of common stock. As of March 31, 2020, 7,500,000 shares of Common Stock (as defined below) were reserved under the 2019 Plan, of which 2,479,781 shares of Common Stock remained available for issuance.

On March 29, 2016, the Company adopted the 2016 Equity Incentive Plan (as amended, the “2016 Plan”) under which eligible employees, officers, directors and consultants of the Company may be granted incentive or non-qualified stock options, restricted stock, restricted stock units, or other stock-based awards, including shares of common stock. The 2016 Plan was terminated on December 19, 2019 and all outstanding awards were cancelled.

Stock option activity

The following table summarizes the Company’s stock option activity under the 2019 Plan:

Description

 

Options

Outstanding

 

 

Weighted

Average

Exercise

Price

 

 

Weighted

Average

Remaining

Contractual

Term (Years)

 

 

Aggregate

Intrinsic

Value (1)

 

Balance at December 31, 2019

 

 

514,710

 

 

$

9.90

 

 

 

10.0

 

 

$

-

 

Granted

 

 

3,475,045

 

 

 

8.00

 

 

 

 

 

 

 

 

 

Forfeited

 

 

(19,536

)

 

 

8.00

 

 

 

 

 

 

 

 

 

Expired

 

 

-

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at March 31, 2020

 

 

3,970,219

 

 

$

8.25

 

 

 

9.7

 

 

$

-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Vested and expected to vest

 

 

3,970,219

 

 

$

8.25

 

 

 

9.7

 

 

$

-

 

Exercisable

 

 

-

 

 

$

-

 

 

 

-

 

 

$

-

 

(1)

Aggregate intrinsic value represents the difference between the estimated fair value of the underlying Common Stock (as defined below) and the exercise price of outstanding, in-the-money options. There were no in-the-money options as of March 31, 2020 and December 31, 2019.

No stock options were exercised during the three months ended March 31, 2020 and 2019.

The following table summarizes additional information on stock option grants and vesting (in thousands):

 

 

2016 Plan

 

 

2019 Plan

 

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Total fair value of stock options granted

 

$

-

 

 

$

2,492

 

 

$

7,970

 

 

$

-

 

Total fair value of options vested

 

 

-

 

 

 

815

 

 

 

-

 

 

 

-

 


Time-based vesting stock options

Under the 2016 Plan, time-based vesting stock options vested over a five-year period, subject to graded vesting schedules, and expired ten years from the date of grant or within 90 days of termination. The weighted-average fair value per share of time-based vesting stock options granted by us was $0 and $37.16 during the three months ended March 31, 2020 and 2019, respectively.

Under the 2016 Plan, for the three months ended March 31, 2020 and 2019, the Company recognized $0.0 million and $0.9 million of stock-based compensation expense in connection with time-based stock options, respectively. As of March 31, 2020, there was no unrecognized stock-based compensation expense as the plan was terminated during 2019.

Under the 2019 Plan, time-based vesting stock options generally vest over a three-year period, are subject to graded vesting schedules, and expire ten years from the date of grant or within 90 days of termination. The weighted-average fair value per share of time-based vesting stock options granted by us was $2.24, during the three months ended March 31, 2020.

Under the 2019 Plan, for the three months ended March 31, 2020, the Company recognized $0.8 million of stock-based compensation expense in connection with time-based stock options. As of March 31, 2020, there was $8.1 million of unrecognized stock-based compensation expense related to unvested time-based stock options that is expected to be recognized over a weighted-average period of three years.

Performance-based vesting stock options

Performance-based vesting stock options generally vested upon the satisfaction of performance- and market-based criteria, based on the Principal Stockholders’ (as defined in the 2016 Plan) internal rate of return on their investment in the Company as measured following their sale of at least 70% of the Principal Stockholders total holdings in the Company, and expired ten years from the date of grant. The weighted-average fair value per share of performance-based vesting stock options granted by us was $0 and $37.16 during the three months ended March 31, 2020 and 2019, respectively. As of March 31, 2020, there were no stock options with performance-based vesting outstanding as the 2016 plan was terminated.

Award Valuation

The Company used valuation models to value both time and performance-based vesting stock options granted during the three months ended March 31, 2020 and 2019. The following table summarizes the assumptions used in the valuation models to determine the fair value of awards granted to employees and non- employees under both the 2019 Plan and the 2016 Plan:

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Expected volatility

 

37.63%

 

 

36.92%

 

Expected term (in years)

 

6.0

 

 

6.5

 

Dividend yield

 

0.00%

 

 

0.00%

 

Risk free interest rate

 

1.43%

 

 

2.42%

��

A discussion of management’s methodology for developing each of the assumptions used in the valuation model follows:

Expected volatility – Volatility is a measure of the amount by which a financial variable such as a share price has fluctuated (historical volatility) or is expected to fluctuate (expected volatility) during a period. The Company uses an estimated volatility based on the historical and implied volatilities of comparable companies.

Expected term – This is the period that the options granted are expected to remain unexercised. For options granted during the three months ended March 31, 2020 and 2019, the Company derived the expected life of the option based on the average midpoint between vesting and the contractual term as there is little exercise history.

Dividend yield – The Company has never declared or paid dividends and have no plans to do so in the foreseeable future.

Risk-free interest rate – This is the U.S. Treasury rate for securities with similar terms that most closely resembles the expected life of the option.


Stock award activity

During the three months ended March 31, 2020 the Company granted to certain non-employee directors 50,000 restricted stock units (“RSU”) in satisfaction of their annual retainer payments and are subject to a three-year vesting term. Accordingly, the Company will recognize the grant-date fair value of the stock awards, ratably over the vesting period. During the three months ended March 31, 2020, the Company recognized an immaterial amount as stock-based compensation expense related to this grant.

During the three months ended March 31, 2019, the Company granted to certain non-employee directors 5,556 stock awards. These stock awards were issued to non-employee directors in satisfaction of their annual retainer payments and are not subject to any vesting conditions, and thus became issued and outstanding shares on the grant date. Accordingly, the Company recognized the grant-date fair value of the stock awards of $0.5 million as stock-based compensation expense concurrent with the grant date of the awards during the three months ended March 31, 2019.

Stock-based compensation expense

Stock-based compensation expense is included in the Company’s Consolidated Statements of Comprehensive Loss within the following line items (in thousands):

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Cost of revenues

 

$

355

 

 

$

231

 

General and administrative

 

 

230

 

 

 

619

 

Research and development

 

 

73

 

 

 

4

 

Sales and marketing

 

 

167

 

 

 

56

 

Total

 

$

825

 

 

$

910

 

Restricted stock units

The Company granted RSUs as an award of a share in the Company which is subject to certain vesting criteria.  The RSUs become eligible to begin vesting upon a liquidity event (as defined in the 2019 Plan). The amount and timing of the vesting of the RSUs is dependent on the timing of liquidity event as it relates to the Business Combination date of December 19, 2019.  

Should the liquidity event occur before the third anniversary of the Business Combination, the RSUs will vest as follows:

If a liquidity event occurs before the first anniversary of the Business Combination, half of the RSUs will vest at the liquidity event and the remaining RSUs will vest in 3 equal instalments on each anniversary of the liquidity event over the next three years.

If a liquidity event occurs after the first anniversary of the Business Combination, but before the second anniversary of the Business Combination, half of the RSUs will vest on the liquidity event, one-sixth will vest on the second anniversary of the Business Combination, and the remaining one-third will vest on the first anniversary of the liquidity event.

If a liquidity event occurs after the second anniversary of the Business Combination, but before the third anniversary of the Business Combination, two-thirds of the RSUs will vest on the liquidity event and the remaining one-third will vest on the third anniversary of the Business Combination.

Should the liquidity event occur after the third anniversary of the Business Combination, all RSUs will vest immediately upon the liquidity event.

The Company granted 1,000,000 RSUs during the quarter ended March 31, 2020 and 1,000,000 are outstanding as of March 31, 2020. The Company determined the achievement of the liquidity event was not probable and therefore no expense was recorded during the three months ended March 31, 2020.

Note 7 – Equity

The Company is authorized to issue up to 200,000,000 shares of common stock, $0.0001 par value per share (the “Common Stock”) and 1,000,000 shares of preferred stock, $0.0001 par value per share. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders. The holders of the Common Stock are entitled to receive dividends out of assets legally available at the time and in the amounts as the Company’s Board of Directors may from time to time determine. In the event of any liquidation, dissolution or winding up of the Company, the assets of the Company shall be distributed ratably among the holders of the then outstanding Common Stock.

Warrants

On December 19, 2019, in connection with the consummation of the Business Combination, the Company assumed 23,000,000 warrants (the “Public Warrants”), 4,585,281 warrants (the “Private Warrants”) and (iii) 1,764,719 warrants (the “Debenture Holder Warrants” and together with the Public Warrants and the Private Warrants, the “Warrants”). These Warrants qualified for


equity accounting as the Warrants did not fall within the scope of ASC Topic 480, Distinguishing Liabilities from Equity. The Warrants were measured at fair value at each reporting period,the time of issuance andnon-financial classified as equity. assets and liabilities that arere-measured and reported at fair value at least annually.

The fair valueEach Warrant entitles the holder to purchase one share of Common Stock for $11.50 per share. If held by the initial purchaser of the Company’s financial assets and liabilities reflects management’s estimate of amounts thatPrivate Warrant or certain permitted transferees, the Company would have received in connection with the sale of the assets or paid in connection with the transfer of the liabilities in an orderly transaction between market participants at the measurement date. In connection with measuring the fair value of its assets and liabilities, the Company seeks to maximize the use of observable inputs (market data obtained from independent sources) and to minimize the use of unobservable inputs (internal assumptions about how market participants would price assets and liabilities). The following fair value hierarchy is used to classify assets and liabilities based on the observable inputs and unobservable inputs used in order to value the assets and liabilities:

Level 1:

Quoted prices in active markets for identical assets or liabilities. An active market for an asset or liability is a market in which transactions for the asset or liabilitypurchase can occur with sufficient frequency and volume to provide pricing information on an ongoing basis.

Level 2:

Observable inputs other than Level 1 inputs. Examples of Level 2 inputs include quoted prices in active markets for similar assets or liabilities and quoted prices for identical assets or liabilities in markets that are not active.

Level 3:

Unobservable inputs based on our assessment of the assumptions that market participants would use in pricing the asset or liability.

The following table presents information about the Company’s assets that are measured at fair value on a recurring basis at September 30, 2019, and indicatescashless basis. The Warrants will expire on December 19, 2024 or earlier upon redemption or liquidation.

If the fair value hierarchy of the valuation inputs the Company utilized to determine such fair value:

Description

  Level   September 30, 2019 

Assets:

    

Marketable securities held in Trust Account

   1   $233,279,783 

Note 8 — Subsequent Events

The Company evaluates subsequent events and transactions that occur after the balance sheet date up to the date that the condensed consolidated financial statements were issued. Except as described below, the Company did not identify any subsequent events that would have required adjustment or disclosure in the condensed consolidated financial statements.

On October 30, 2019, the Company entered into an amendment to the Merger Agreement to extend the outside date which would allow a party to terminate the agreement under certain circumstances if the Merger had not been consummated by such date from October 31, 2019 to November 6, 2019.

On November 7, 2019, Pivotal, the Company and MGG Investment Group, LP (“MGG”) entered into a commitment letter pursuant to the Forward Purchase Contract. The commitment letter provides that, subject to the terms and conditions set forth therein, Pivotal and MGG may enter into definitive documentation pursuant to which Pivotal may borrow, and MGG and/or certain of its affiliates have agreed to lend, up to $150 million of 5-year convertible notes (the “Convertible Notes”), with that principal amount being reduced to the extent that more than $80 million remains in the trust account after giving effect to any redemptions by the public stockholders. As an example, if the trust account holds $130 million in cash after giving effect to such redemptions, then Pivotal may issue $100 million in Convertible Notes. The Convertible Notes will pay interest at a rate of 8% per year, with 4% being paid in cash and 4% being paid in additional Convertible Notes. Pivotal will have the option to require the Convertible Notes to be converted into shares of Pivotal common stock at the then-current stock price if thereported last reported sale price of the Pivotal common stockCompany’s Common Stock equals or exceeds $18.00 per share for any 20 trading days inwithin a 30-trading day period ending three business days before the Company sends the notice of redemption to the Warrant holders, the Company may redeem all the Public Warrants at a price of $0.01 per Warrant upon not less than 30 trading-day period. Pivotal may repay all or a portion ofdays’ prior written notice.

If the Convertible Notes (including any paid-in kind interest) at any time without any prepayment penalty. InCompany calls the event of such a prepayment, the holders of the Convertible NotesPublic Warrants for redemption, management will have the option to require all holders that wish to exercise the Public Warrants to do so on a cashless basis. The exercise price and number of shares of Common Stock issuable upon exercise of the Warrants may be adjusted in certain circumstances including in the event of a stock dividend, or recapitalization, reorganization, merger or consolidation. The Warrants will not be adjusted for issuance of Common Stock at a price below its exercise price. The Company will not be required to net cash settle the Warrants.

The Private Warrants are identical to the Public Warrants except that the Private Warrants will be exercisable on a cashless basis and be non-redeemable so long as they are held by the initial purchasers or their permitted transferees. If the Private Warrants are held by someone other than the initial purchasers or their permitted transferees, the Private Warrants will be redeemable by the Company and exercisable by such holders on the same basis as the Public Warrants.

Shares Subject to Forfeiture

On December 19, 2019, in connection with the consummation of the Business Combination, 550,000 shares of Common Stock held by Pivotal Acquisition Holdings LLC were subjected to an additional lockup that will be released only if the last reported sale price of the Common Stock equals or exceeds $15.00 for a period of 20 consecutive trading days during the five-year period following the Closing Date. If the last reported sale price of Common Stock does not equal or exceed $15.00 within five years from the Closing Date, such shares of Common Stock will be forfeited to the Company for no consideration. These shares are reported as outstanding in our financial statements.

Note 8 – Earnings (loss) per share

Basic earnings (loss) per common share (“EPS”) is calculated by dividing the net earnings (loss) for the year by the weighted-average number of common shares outstanding during the period. Due to the Company’s net loss for the three months ended March 31, 2020 and 2019, all potential common stock equivalents were anti-dilutive.

The following table summarizes basic and diluted earnings (loss) per share or the three months ended March 31, 2020 and 2019 (in thousands, except per share amounts):

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Basic and diluted loss per share:

 

 

 

 

 

 

 

 

Net loss

 

$

(12,526

)

 

$

(13,491

)

Weighted average common shares outstanding - basic

 

 

42,529,017

 

 

 

42,302,775

 

Dilutive effect of potentially issuable shares

 

 

-

 

 

 

-

 

Weighted average common shares outstanding - diluted

 

 

42,529,017

 

 

 

42,302,775

 

Basic loss per share

 

$

(0.29

)

 

$

(0.32

)

Dilutive effect of potentially issuable shares

 

 

-

 

 

 

-

 

Diluted loss per share

 

$

(0.29

)

 

$

(0.32

)

Common share equivalents excluded due to anti-dilutive effect

 

 

-

 

 

 

-

 

Note 9 – Income taxes

A valuation allowance has been established against our net U.S. federal and state deferred tax assets, including net operating loss (“NOL”) carryforwards. As a result, our income tax position is primarily related to foreign tax activity and U.S. deferred taxes for tax deductible goodwill and other indefinite-lived liabilities. During the three months ended March 31, 2020 and 2019, the Company recorded an income tax provision of $0.2 million and $0.1 million, respectively, resulting in an effective tax rate of


(1.6)% and (0.7)%, respectively. These effective tax rates differ from the U.S. federal statutory rate primarily due to the effects of foreign tax rate differences and the valuation allowance against our domestic deferred tax assets.

Note 10 – Commitments and contingencies

The Company is involved in various legal proceedings, which may arise occasionally in the normal course of business. While the ultimate results of such matters generally cannot be predicted with certainty, management does not expect such matters to have a material effect on the financial position and results of operations as of March 31, 2020.

The Company has four letters of credit totaling $0.8 million as additional security for lease guarantees related to four leased properties.

Risks and Uncertainties

Impacts of COVID-19 pandemic on KLDiscovery’s Business

The potential impacts of the COVID-19 pandemic on the Company’s business are currently not estimable or determinable.  The Company has made modifications to employee travel, employee work locations, and cancellation of certain events, among other modifications. The Company has implemented a salary exchange program pursuant to which certain employees have taken a temporary reduction in salary that ranges from 2% to 20% in exchange for receiving additional stock options and restricted stock units to purchase shares of PivotalCommon Stock in future periods. In addition, to strengthen its cash position, the Company borrowed $29.0 million under its Revolving Credit Facility. The Company will continue to actively monitor the situation and may take further actions that alter its business operations as may be required by federal, state or local authorities or that it determines is in the best interests of its employees, customers, partners, suppliers and stockholders.  It is not clear what the potential effects any such alterations or modifications may have on the Company’s business, including the effects on its customers and prospects, or on its financial results for the remainder of fiscal year 2020.

On March 27, 2020, the Coronavirus Aid, Relief and Economic Security (the “CARES Act”) was enacted and signed into law. The Company has evaluated the business provisions in the CARES Act and adopted the deferral of the employer portion of the social security payroll tax (6.2%) outlined in the CARES Act. The deferral is effective from the enactment date through December 31, 2020. The deferred amount will be paid in two installments and the amount will be considered timely paid if 50% of the deferred amount is paid by December 31, 2021 and the remainder by December 31, 2022. The Company is monitoring local legislation in jurisdictions in all countries it conducts business in and is adopting these local stimulus benefits as it deems appropriate.

Note 11 – Related parties

On December 22, 2015, the Company entered into a consulting agreement with Carlyle Investment Management, LLC, an affiliate of The Carlyle Group, Inc., for advisory, consulting and other services in relation to the strategic and financial management of the Company. For the three months ended March 31, 2019, the Company recognized $0.3 million in management consulting fees, reflected within “General and administrative expenses” in the accompanying consolidated Statements of Comprehensive Loss. The agreement was terminated on December 19, 2019.

In connection with the Business Combination, the Company assumed Debentures of which $101.1 million are owed to affiliates of MGG Investment Group, an affiliate of Kevin Griffin, a director of the Company as of March 31, 2020. For the three months ended March 31, 2020 and 2019, the Company recognized $3.0 million and $0 million in interest expense, respectively related to the Debentures.

Note 12 – Subsequent events

The Company has evaluated subsequent events through the dates on which this Quarterly Report on Form 10-Q was filed, the date on which these financial statements were issued, and identified no additional items for disclosure.



Item 2.     Management’s Discussion and Analysis of Financial Condition and Results of Operations

We believe that this Quarterly Report on Form 10-Q contains statements that are forward-looking and as such are not historical facts. This includes, without limitation, statements regarding the financial position, business strategy and the plans and objectives of management for future operations. These statements constitute projections, forecasts and forward-looking statements, and are not guarantees of performance. Such statements can be identified by the fact that they do not relate strictly to historical or current facts. When used in this Report, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. When we discuss our strategies or plans, we are making projections, forecasts or forward-looking statements. Such statements are based on the beliefs of, as well as assumptions made by and information currently available to, our management. The forward-looking statements contained in this Report are based on current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described in the section titled “Risk Factors” in Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 (our “Annual Report”). These risks and uncertainties may be amplified by the COVID-19 pandemic and its potential impact on our business and the global economy. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

Throughout this section, unless otherwise noted “we,” “us,” “our,” “Company,” “KLDiscovery,” “KLD”, “KLDiscovery Inc.” or “LD Topco, Inc.” refer to KLDiscovery Inc. and its consolidated subsidiaries. As a result of the Business Combination, (i) KLDiscovery Inc.’s consolidated financial results for periods prior to December 19, 2019 reflect the financial results of LD Topco, Inc. and its consolidated subsidiaries, as the accounting predecessor to KLDiscovery Inc., and (ii) for periods from and after this date, KLDiscovery Inc.’s financial results reflect those of KLDiscovery Inc. and its consolidated subsidiaries (including LD Topco, Inc. and its subsidiaries) as the successor following the Business Combination. The following overview provides a summary of the sections included in this Management’s Discussion and Analysis of Financial Condition and Results of Operations:

Executive Summary — a general description of our business and key highlights for the three months ended March 31, 2020.

Results of Operations — an analysis of our results of operations in our condensed consolidated financial statements.

Liquidity and Capital Resources — an analysis of our cash flows, sources and uses of cash, commitments and contingencies and quantitative and qualitative disclosures about market risk.

Critical Accounting Policies and Estimates — a discussion of critical accounting policies requiring judgments and estimates.

Executive Summary

We are one of the leading eDiscovery providers and the leading data recovery services provider to corporations, law firms, government agencies and individual consumers. We provide technology-enabled services and software to help law firms, corporations, government agencies and consumers solve complex data challenges. We have broad geographical coverage in the eDiscovery and data recovery industries with more than 40 locations in 19 countries, 10 data centers and 22 data recovery labs around the globe. Our legal technology services cover both eDiscovery and information governance services to support the litigation, regulatory compliance, and internal investigation needs of our clients. We offer data collection and forensic investigation, early case assessment, electronic discovery and data processing, application software, data hosting, and managed review services. In addition, through our global Ontrack Data Recovery name, we deliver world-class data recovery, email extraction and restoration, data destruction and tape management services.

KEY COMPONENTS OF OUR RESULTS OF OPERATIONS

Data proliferation is contributing to growth in the eDiscovery and information governance market. Data is growing at an exponential rate due to several factors, including the adoption of mobile devices, accessibility of hosted systems and increased reliance on electronic data storage. We are well positioned to gain market share from the growth of electronically stored information given our prior and continued investment in our infrastructure and proprietary technologies that allows us to


efficiently identify, preserve, collect, process, review and host complex data sets. We will continue to develop and enhance our technology which will position us to continue to evolve as the market changes.

The eDiscovery and information governance market is highly fragmented and price competitive. While many of our competitors rely on third party software tools to provide their services, we offer our services utilizing our own end-to-end proprietary tools as well as third party platforms. Because we can provide service offerings utilizing proprietary technology, we have more flexibility in pricing, and we are not hindered by third party licensing software expenses. As such, our proprietary tools allow us to be less impacted by significant price compression than our competitors.

Historically, on-premise tools have been the dominant deployment solution. However, recently the market has shifted to cloud-based solutions and this shift could result in increased revenue for us as we offer our own proprietary cloud-based solutions.

We classify our legal technology revenue as follows:

Collections and Processing Services: We have remote and onsite collection services. Our proprietary workflows and tools allow us to ingest, extract native file metadata and index in a normalized format. We have near duplication tools to quickly discard duplicative or irrelevant data, significantly minimizing the data that needs to be reviewed. Our analytics include predictive coding which allows us to automatically classify millions of documents in a matter of hours. We offer email threading that looks at relationships between email messages to identify the most content inclusive messages to avoid redundant review and we have language identification that can automatically identify the primary language in all documents in the data set. The collection of data is billed either by the unit or hour and the data that is processed and produced is billed by gigabyte, page or by file.

Forensics and Consulting Services: We provide the expertise and tools needed to extract and analyze digital evidence to support a client’s legal matter. Our forensics experts help extract critical evidence, recover any data that individuals may have sought to erase or hide, retrieve key data buried in documents and organize data contained in multiple information sources to give our client the insight and knowledge they need. Our forensics and consulting services are billed by either hour or unit.

Professional Services: We manage complex eDiscovery matters and partner with our clients to assist through the lifecycle of a case. Our professional services are billed on an hourly basis.

Managed Review Services: We use our extensive eDiscovery project management experience, technological excellence and global presence to provide clients with a secure, seamless and cost-effective managed review solution. We assemble review teams of experienced legal professionals for any type of case. Each team member is a qualified attorney who has passed a selective screening process and has received training from a KLDiscovery review manager to ensure the most efficient and defensible review of a client’s documents. Document review managers have extensive project management experience to oversee the entire review process and work with the client’s legal team as an integrated partner. Our industry experts have developed advanced managed review processes and tools and deliver services in state-of-the-art facilities, handle subject matter versatility, are platform agnostic, possess expert working knowledge of predictive coding and technology assisted review workflows, have multilingual capabilities and focus on quality. Our managed review services are billed on an hourly basis.

Hosting: We have flexible technology options and platforms to host our client’s data for the life of the matter. We offer secure data centers around the globe to support data across jurisdictions and privacy laws. Hosting is billed by gigabyte.

Subscription: We offer subscription pricing options to provide cost predictability over time. Subscriptions cover a range of our services and are typically a fixed fee billed monthly for contract terms averaging 1 to 3 years.

We classify our data recovery revenue as follows:

Data Recovery Services: We recover lost data from devices that store digital information, including data centers, cloud, business servers, workstations, laptops and mobile devices. Pricing is per device.

PowerControls and Data Recovery Software: We enable search and recovery of data from database files and physically sound devices. Pricing is typically an annual or multi-year agreement at a fixed price.

For the three months ended March 31, 2020 and March 31, 2019, our legal technology revenue was $66.8 million and $62.6 million, respectively, and our data recovery revenue was $11.5 million and $12.4 million, respectively. Additionally, we have longstanding relationships with our clients and for the three months ended March 31, 2020 and 2019, no single client accounted for more than 5% of our revenues.

Non-U.S. GAAP Financial Measures

We prepare audited financial statements in accordance with U.S. GAAP. We also disclose and discuss other non-U.S. GAAP financial measures such as EBITDA and adjusted EBITDA. We believe that these measures are relevant and provide useful


supplemental information to investors by providing a baseline for evaluation and comparing our operating performance against that of other companies in our industry.

The non-U.S. GAAP financial measures that we use may not be comparable to similarly titled measures reported by other companies and in the future, we may disclose different non-U.S. GAAP financial measures in order to help our investors meaningfully evaluate and compare our results of operations to our previously reported results of operations or to those of other companies in our industry. We believe these non-U.S. GAAP financial measures reflect our ongoing operating performance because the isolation of non-cash charges, such as amortization and depreciation, and other items, such as interest, income taxes, management fees and equity compensation, acquisition and transaction costs, restructuring costs, systems establishment and costs associated with strategic initiatives which are incurred outside the ordinary course of our business, provides information about our cost structure and helps us to track our operating progress. We encourage investors and potential investors to carefully review the U.S. GAAP financial information and compare them with our EBITDA and adjusted EBITDA.

Adjusted EBITDA

We define EBITDA as net income (loss) plus interest (income) expense, income tax expense (benefit), depreciation and amortization. We view adjusted EBITDA as our operating performance measure and as such, we believe that the most directly comparable U.S. GAAP financial measure is net loss. In calculating adjusted EBITDA, we exclude from net loss certain items that we believe are not reflective of our ongoing business and exclusion of these items allows us to provide additional analysis of the financial components of the day-to-day operation of our business. We have outlined below the type and scope of these exclusions:

Acquisition, financing and transaction costs generally represented by non-ordinary course earn-out valuation changes, rating agency fees, letter of credit and revolving facility fees, as well as professional service fees and direct expenses related to acquisitions. Because we do not acquire businesses on a predictable cycle, we do not consider the amount of acquisition- and integration-related costs to be a representative component of the day-to-day operating performance of our business.

Strategic initiatives expenses relate to costs resulting from pursuing strategic business opportunities. We do not consider the amounts to be representative of the day-to-day operating performance of our business.

Management fees, stock compensation and other primarily represents consulting fees and portion of compensation paid to our employees and executives through stock-based instruments. Determining the fair value of the stock-based instruments involves a high degree of judgment and estimation and the expenses recorded may not align with the actual value realized upon the future exercise or termination of the related stock-based awards. Therefore, we believe it is useful to exclude stock-based compensation to better understand the long-term performance of our core business.

Restructuring costs generally represent non-ordinary course costs incurred in connection with a change in a contract or a change in the makeup of our personnel often related to an acquisition. We do not consider the amount of restructuring costs to be a representative component of the day-to-day operating performance of our business.

Systems establishment costs relate to non-ordinary course expenses incurred to develop our IT infrastructure, including system automation and enterprise resource planning system implementation. We do not consider the amount to be representative of a component of the day-to-day operating performance of our business.

Our presentation of adjusted EBITDA should not be construed as an inference that our future results will be unaffected by any of these adjustments, or that our projections and estimates will be realized in their entirety or at all. In addition, because of these limitations, adjusted EBITDA should not be considered as a measure of liquidity or discretionary cash available to us to fund our cash needs, including investing in the growth of our business and meeting our obligations.

The use of adjusted EBITDA instead of U.S. GAAP measures has limitations as an analytical tool, and adjusted EBITDA should not be considered in isolation, or as a substitute for analysis of our results of operations and operating cash flows as reported under U.S. GAAP. For example, adjusted EBITDA does not reflect:

our cash expenditures or future requirements for capital expenditures;

changes in, or cash requirements for, our working capital needs;

interest expense, or the cash requirements necessary to service interest or principal payments, on our indebtedness;

any cash income taxes that we may be required to pay;

any cash requirements for replacements of assets that are depreciated or amortized over their estimated useful lives and may have to be replaced in the future; or

all non-cash income or expense items that are reflected in our statements of cash flows.



RESULTS OF OPERATIONS

Impacts of COVID-19 pandemic on the Company’s Business

The potential impacts of the COVID-19 pandemic on our business are currently not estimable or determinable.  We are conducting business as usual with some modifications to employee travel, employee work locations, and cancellation of certain events, among other modifications. We have implemented a salary exchange program pursuant to which certain employees have taken a temporary reduction in salary that ranges from 2% to 20% in exchange for receiving additional stock options and restricted stock units to purchase shares of our Common Stock in future periods. In addition, to strengthen our cash position, we borrowed $29.0 million under our Revolving Credit Facility. We will continue to actively monitor the situation and may take further actions that alter our business operations as may be required by federal, state or local authorities or that we determine is in the best interests of our employees, customers, partners, suppliers and stockholders.  It is not clear what the potential effects any such alterations or modifications may have on our business, including the effects on our customers and prospects, or on our financial results for the remainder of fiscal year 2020.

On March 27, 2020, the CARES Act was enacted and signed into law. We have evaluated the business provisions in the CARES Act and adopted the deferral of the employer portion of the social security payroll tax (6.2%) outlined in the CARES Act. The deferral is effective from the enactment date through December 31, 2020. The deferred amount will be paid in two installments and the amount will be considered timely paid if 50% of the deferred amount is paid by December 31, 2021 and the remainder by December 31, 2022. We are monitoring local legislation in jurisdictions in all countries we conduct business in and are adopting these local stimulus benefits as we deem appropriate.

For the three months ended March 31, 2020 compared with the three months ended March 31, 2019

The following table sets forth statements of operations data for each of the periods indicated:

 

 

Three Months Ended March 31,

 

(in millions)

 

2020

 

 

2019

 

Revenues

 

$

78.3

 

 

$

75.0

 

Cost of revenues

 

 

39.5

 

 

 

37.4

 

Gross profit

 

 

38.8

 

 

 

37.6

 

Operating expenses

 

 

38.1

 

 

 

38.8

 

Loss from operations

 

 

0.7

 

 

 

(1.2

)

Interest expense

 

 

13.0

 

 

 

12.1

 

Other expense

 

 

-

 

 

 

0.1

 

Loss before income taxes

 

 

(12.3

)

 

 

(13.4

)

Income tax provision

 

 

0.2

 

 

 

0.1

 

Net loss

 

 

(12.5

)

 

 

(13.5

)

Total other comprehensive (loss) income, net of tax

 

 

(4.4

)

 

 

0.8

 

Comprehensive loss

 

 

(16.9

)

 

 

(12.7

)

Revenues

Revenues increased by $3.3 million, or 4.4%, to $78.3 million for the three months ended March 31, 2020 as compared to $75.0 million for the three months ended March 31, 2019. This increase is primarily due to an increase of $4.2 million in legal technology revenue, partially offset by a decrease of $0.9 million in data recovery revenue. Legal technology revenue increased primarily due to increased managed review revenue. Data recovery revenue decreased due to a lower volume of data recovery jobs than in the prior year.

Cost of Revenues

Cost of revenues increased by $2.1 million, or 5.6%, to $39.5 million for the three months ended March 31, 2020 as compared to $37.4 million for the three months ended March 31, 2019.  This increase is due to increased costs associated with managed review revenues partially offset by lower amortization of acquired technologies of approximately $0.4 million due to fully amortized assets.  As a percentage of revenue, our cost of revenues for the three months ended March 31, 2020 remained relatively consistent at 50.4% as compared to 49.9% for the three months ended March 31, 2019.

Gross Profit

Gross profit increased by $1.2 million, or 3.2%, to $38.8 million for the three months ended March 31, 2020 as compared to $37.6 million for the three months ended March 31, 2019. Gross profit increased primarily due to the factors noted above. As a percentage of revenue, our gross profit for the three months ended March 31, 2020 decreased slightly to 49.6% as compared to 50.1% for the three months ended March 31, 2019.


Operating Expenses

Operating expenses decreased by $0.7 million, or 1.8%, to $38.1 million for the three months ended March 31, 2020 as compared to $38.8 million for the three months ended March 31, 2019. This decrease is primarily due to lower expenses of $0.9 million for depreciation and amortization due to acquired assets being fully amortized, a $0.6 million reduction in marketing expense and a $0.6 million reduction in wages of our sales personnel, partially offset by a $1.3 million increase for professional fees driven by incremental expenses required for public company filings and compliance after the Company became a public company in late 2019. As a percentage of revenue, our operating expenses for the three months ended March 31, 2020 decreased to 48.7% as compared to 51.7% for the three months ended March 31, 2019 due to the factors noted above.

Interest Expense

Interest expense increased by $0.9 million, or 7.4%, to $13.0 million for the three months ended March 31, 2020 as compared to $12.1 million for the three months ended March 31, 2019. This increase is primarily due to the increase in outstanding debt, partially offset by lower interest rates during the three months ended March 31, 2020 compared to the three months ended March 31, 2019.

Income Tax Provision (Benefit)

During the three months ended March 31, 2020 and 2019, we recorded an income tax provision of $0.2 million and $0.1 million, respectively, resulting in an effective tax rate of (1.6)% and (0.7)%, respectively. These effective tax rates differ from the U.S. federal statutory rate primarily due to the effects of foreign tax rate differences, U.S. state and local income taxes and the valuation allowance against our domestic deferred tax assets. The effective rate for the three months ended March 31, 2020 increased from the three months ended March 31, 2019 primarily due to a change in the allocation of our pre-tax earnings and losses among countries with differing statutory tax rates.  

On March 27, 2020, the President signed into U.S. federal law the CARES Act, which is aimed at providing emergency assistance and health care for individuals, families, and businesses affected by the COVID-19 pandemic and generally supporting the U.S. economy. The CARES Act, among other things, includes provisions relating to refundable payroll tax credits, deferment of employer-side social security payments, NOL carryback periods, alternative minimum tax credit refunds, modifications to the net interest deduction limitations and technical corrections to tax depreciation methods for qualified improvement property. In particular, under the CARES Act, (i) for taxable years beginning before 2021, NOL carryforwards and carrybacks may offset 100% of taxable income, (ii) NOLs arising in 2018, 2019, and 2020 taxable years may be carried back to each of the preceding five years to generate a refund and (iii) for taxable years beginning in 2019 and 2020, the base for interest deductibility is increased from 30% to 50% of taxable income. We are analyzing the different aspects of the CARES Act to determine whether any specific provisions may impact us.  Similar tax legislation has been enacted in other countries where we operate, and we are also analyzing the different aspects of these legislative developments to determine whether any specific provision may impact us.

Net Loss

Net loss for the three months ended March 31, 2020 was $12.5 million compared to $13.5 million for the three months ended March 31, 2019. Net loss decreased for the three months ended March 31, 2020 as compared to the three months ended March 31, 2019 due to the factors noted above.

Adjusted EBITDA

 

 

For the Three Months Ended March 31,

 

(in millions)

 

2020

 

 

2019

 

Net Loss

 

$

(12.5

)

 

$

(13.5

)

Interest expense

 

 

13.0

 

 

 

12.1

 

Income tax expense (benefit)

 

 

0.2

 

 

 

0.1

 

Depreciation and amortization expense

 

 

11.8

 

 

 

12.5

 

EBITDA

 

$

12.5

 

 

$

11.2

 

Acquisition, financing and transaction costs

 

 

0.1

 

 

 

0.2

 

Strategic Initiatives:

 

 

 

 

 

 

 

 

Sign-on bonus amortization

 

 

0.2

 

 

 

0.1

 

Non-recoverable draw

 

 

0.3

 

 

 

1.1

 

Total strategic initiatives

 

 

0.5

 

 

 

1.2

 

Management fees, stock compensation and other

 

 

0.9

 

 

 

1.2

 

Restructuring costs

 

 

0.6

 

 

 

0.7

 

Systems establishment

 

 

0.5

 

 

 

0.6

 

Adjusted EBITDA

 

$

15.0

 

 

$

15.1

 


Liquidity and Capital Resources

Our primary cash needs have been to meet debt service requirements and to fund working capital and capital expenditures. We fund these requirements from cash generated by our operations, as well as funds available under our revolving credit facility (our “Revolving Credit Facility”). Although our eDiscovery solutions and information archiving services are billed on a monthly basis in arrears with amounts typically due within 30 to 45 days, the eDiscovery industry tends towards longer collectability trends. As a result, we have typically collected on the majority of our eDiscovery accounts receivables within 90 to 95 days, which is consistent within the industry. With respect to our data recovery services, they are billed as the services are provided, with payments due within 30 days of billing. We typically collect on our data recovery services accounts receivables within 30 to 45 days. Lastly, the majority of our data recovery software is billed monthly in advance with amounts typically due within 30 to 45 days; however, depending on the client contract, billing can occur annually, quarterly or monthly. We have experienced no material seasonality trends as it relates to collection on our accounts receivables. As of March 31, 2020, we had $50.6 million in cash compared to $43.4 million as of December 31, 2019. As of March 31, 2020, we had $509.0 million of outstanding borrowings compared to $480.6 million as of December 31, 2019. We expect to finance our operations over the next 12 months primarily through existing cash balances and cash flow.

2016 Credit Agreement

The Facilities

On December 9, 2016, we entered into a Credit Agreement (as amended or supplemented to date, the “2016 Credit Agreement”) with a group of lenders to establish term loan facilities and a revolving line of credit for borrowings by LD Intermediate, Inc. and LD Lower Holdings, Inc. (the “Initial Term Loans”). The Initial Term Loan borrowings of $340.0 million (the “First Lien Facility”) and $125.0 million (the “Second Lien Facility” and, together with the First Lien Facility, the “Facilities”) were to mature on December 9, 2022 and December 9, 2023, respectively.  The Second Lien Facility was repaid on December 19, 2019 in connection with the consummation of the Business Combination.

The First Lien Facility established a term loan principal payment schedule with payments due on the last day of each calendar quarter, beginning on March 31, 2017 with a payment of $2.1 million. Quarterly principal payments increased to $4.3 million beginning on March 31, 2019 with a balloon payment of $259.3 million due at maturity. The interest rate for the First Lien Facility adjusts every interest rate period, which can be one, two, three or six months in duration and is decided by us, or to the extent consented to by all Appropriate Lenders (as defined in the 2016 Credit Agreement), 12 months thereafter. Interest payment dates include the last day of each interest period and any maturity dates of the First Lien Facility; however, if any interest period exceeds three months, the respective dates that fall every three months after the beginning of an interest period is also an interest payment date. For each interest period, the interest rate per annum is 5.875% plus the Adjusted Eurocurrency Rate which is defined as an amount equal to the Statutory Reserve Rate (as defined in the 2016 Credit Agreement) multiplied by the greatest of (a) LIBOR, (b) 0.00% per annum and (c) solely with respect to the Initial Term Loans, 1.00% per annum. As of March 31, 2020, the balance due was $301.8 million, with an interest rate of 5.875% plus an Adjusted Eurocurrency Rate of 1.90025%. As of December 31, 2019, the balance due was $306.0 million, with an interest rate of 5.875% plus an Adjusted Eurocurrency Rate of 2.05638%.

The Second Lien Facility required a balloon payment of $125.0 million due at maturity. The interest rate for the Second Lien Facility adjusted every interest rate period, which could be one, two, three or six months in duration and is decided by the Company, or to the extent consented to by all Appropriate Lenders (as defined in the 2016 Credit Agreement), 12 months thereafter. Interest payment dates included the last day of each interest period and any maturity dates of the Second Lien Facility; however, if any interest period exceeds three months, the respective dates that fall every three months after the beginning of an interest period was also an interest payment date. For each interest period, the interest rate per annum was 10.0% plus the Adjusted Eurocurrency Rate which was defined as an amount equal to the Statutory Reserve Rate multiplied by the greatest of (a) LIBOR, (b) 0.00% per annum and (c) solely with respect to the Initial Term Loans, 1.00% per annum. The Second Lien Facility was repaid upon consummation of the Business Combination on December 19, 2019.

The Facilities are secured by substantially all of our assets and contain certain covenants. As of March 31, 2020 and December 31, 2019, we were in compliance with all covenants.

The 2016 Credit Agreement includes a mandatory excess cash flow prepayment within ten days after delivery of the annual audited financial statements commencing with the year ended December 31, 2017. The Excess Cash Flow amount is specifically defined in Section 1.01 of the 2016 Credit Agreement. The Excess Cash Flow calculation starts with net income and then adds back a series of non-cash expenses, capital expenditures, M&A, and debt related amounts to arrive at a final amount due.

The amount of the Excess Cash Flow payment is reduced if the First Lien Net Leverage Ratio falls below certain thresholds. Such percentage in respect of any Excess Cash Flow Period shall be reduced to 50%, 25% or 0% if the First Lien Net Leverage Ratio as of the last day of the year to which such Excess Cash Flow Period relates was equal to or less than 3.75 to 1.00, 3.25 to 1.00 or 2.75 to 1.00, respectively.


We were not required to make any additional principal payments under the Excess Cash Flow covenant for the three months ended March 31, 2019 or March 31, 2020 and do not anticipate making any additional principal payments under the Excess Cash Flow covenant for the year ended December 31, 2020.

Revolving Credit Facility

The 2016 Credit Agreement also provides for a Revolving Credit Facility of up to $30.0 million that matures December 9, 2021. Borrowings under the Revolving Credit Facility may be subject to meeting certain financial covenants set forth in the 2016 Credit Agreement, including the First Lien Net Leverage Ratio. We may draw up to $30.0 million under the Revolving Credit Facility, on a term loan basis, with either an adjustable eurocurrency loan interest rate of 5.375%, 5.625%, or 5.875% with interest rates based on the First Lien Net Leverage Ratio plus an amount equal to the LIBOR, or a base rate loan interest rate of 4.375%, 4.635%, or 4.875% plus the Base Rate (as defined in the 2016 Credit Agreement). As of March 31, 2020 and December 31, 2019, we had $29.0 million and $0.0 million outstanding under our Revolving Credit Facility, respectively, and $0.8 million and $0.9 million, respectively, in letters of credit issued as of March 31, 2020 and December 31, 2019 with $0.2 million available borrowing capacity under the Revolving Credit Facility as of March 31, 2020.

The Initial Term Loan borrowings pursuant to the 2016 Credit Agreement were issued at an original issue discount of $11.9 million and $6.3 million for the First Lien Facility and Second Lien Facility, respectively. The original issue discount is amortized using the effective yield method over the respective term of each Facility.

We incurred closing fees in connection with the entry into the Facilities and the Revolving Credit Facility pursuant to the 2016 Credit Agreement of $13.6 million. These closing fees were deferred on December 9, 2016, along with fees of $0.6 million related to our prior term loan facility that we refinanced in connection with our entry into the 2016 Credit Agreement and are amortized over their respective terms. We are always evaluating opportunities for a more advantageous indebtedness structure, which may include a refinancing or replacement of our Facilities and/or our Revolving Credit Facility.

Convertible Debenture Notes

In connection with the Business Combination on December 19, 2019, we issued $200 million aggregate principal amount Debentures due 2024 in a private placement to certain “accredited investors” pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act. The equity structure as of the date of the Business Combination included 2,097,974 shares of common stock and 1,764,719 warrants for the issuance of common stock to the Debenture holders related to the Debenture issuance. The proceeds of the Debentures were used in part to repay our outstanding Second Lien Facility and amounts outstanding under the Revolving Credit Facility.

The Debentures will mature on December 19, 2024 unless earlier converted, redeemed or repurchased. The Debentures will bear interest at an annual rate of 4.00% in cash and 4.00% in kind, payable quarterly on the last business day of March, June, September and December. In addition, on each anniversary of the Closing Date, we will add to the principal amount (subject to reduction for any principal amount repaid) of the Debentures an amount equal to 3.00% of the original aggregate principal amount of the Debentures outstanding, which will accrue from the last payment and will be payable at maturity, upon conversion or upon an optional redemption, if no prior payment was made.

At any time, upon notice as set forth in the Debentures, the Debentures will be redeemable at our option, in whole or in part, at a price equal to 100% of the principal amount of the Debentures redeemed, plus accrued and unpaid interest thereon.

Subject to approval to allow for the full conversion of the Debentures into common stock, the Debentures will be convertible into shares of our common stock at the option of the Debenture holders at any time priorand from time to time at a price of $18 per share, subject to certain adjustments. However, in the maturity ofevent we elect to redeem any Debentures, the Convertible Notes,holders will have a right to purchase common stock from us in an amount equal to the amount redeemed at the conversion price.

The Debentures contain covenants that limit our ability to, among other things: (i) incur additional debt; (ii) create liens on assets; (iii) engage in certain transactions with affiliates; or (iv) designate our subsidiaries as unrestricted subsidiaries. The Debentures provide for customary events of Convertible Notes prepaiddefault, including non-payment, failure to comply with covenants or other agreements in the Debentures and certain events of bankruptcy or insolvency. If an event of default occurs and continues, the holders of at a price equal to the average closing share price for Pivotal common stock for the five trading days prior to the dateleast 25% in aggregate principal amount of the repayment. Alloutstanding Debentures may declare the entire principal and accrued but unpaid interest willamount of all the Debentures to be due and payable on the fifth anniversary of the consummation of the Business Combination. The commitment letter provides that under the definitive documentation governing the Convertible Notes, Pivotal will be restrictedimmediately.


Our net cash flows from selling any additional senior or junior debt securities while the Convertible Notes are outstanding without the prior consent of the holders of the Convertible Notes. Such definitive documentation will also contain certain other affirmative covenants customarily included in similar debt instruments issued by public companies. The closing of the issuance of the Convertible Notes (the “Note Closing”) is conditioned upon the consummation of the Business Combination being scheduled to occur immediately following the Note Closing, with the proceeds from the Convertible Notes able to be used to fund the minimum cash consideration set forth in the Merger Agreement.

Item 2. Management’s Discussionoperating, investing and Analysis

Forward-Looking Statements

This Quarterly Report on Form10-Q includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “continue,” or the negative of such terms or other similar expressions. Factors that might cause or contribute to such a discrepancy include, but are not limited to, those described in our other Securities and Exchange Commission (“SEC”) filings. References to “we”, “us”, “our” or the “Company” are to Pivotal Acquisition Corp., except where the context requires otherwise. The following discussion should be read in conjunction with our condensed consolidated financial statements and related notes thereto included elsewhere in this report.

Overview

We are a blank check company incorporated in Delaware on August 2, 2018financing activities for the purposethree months ended March 31, 2020 and 2019 were as follows:

 

 

Three Months Ended March 31, 2020

 

 

Three Months Ended March 31, 2019

 

Net cash provided by (used in):

 

 

 

 

 

 

 

 

Operating activities

 

$

(11,956

)

 

$

(18,340

)

Investing activities

 

$

(5,101

)

 

$

(2,182

)

Financing activities

 

$

24,526

 

 

$

1,593

 

Effect of foreign exchange rates

 

$

(265

)

 

$

22

 

Net increase (decrease in cash)

 

$

7,204

 

 

$

(18,907

)

Cash Flows Used in Operating Activities

Net cash used in operating activities was $12.0 million for the three months ended March 31, 2020 as compared to net cash used in operating activities of effecting$18.3 million for the three months ended March 31, 2019. The decrease in net cash used is due to a merger, share exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses or entities.

We consummated the Offering on February 4, 2019. All activity through September 30, 2019 relates to our formation, the Offering and simultaneous private placement of Private Placement Warrants (each as described below), our search for a target business with which to complete an initial business combination and the proposed acquisition of LD.

Recent Developments

On May 20, 2019, as amended on October 30, 2019, we entered into the Merger Agreement by and among the Company, Merger Sub, LD and Carlyle Equity Opportunity GP, L.P. See Note 6$1.0 million reduction in Item 1 above for a description of the Merger Agreement and the transactions contemplated thereby.

Results of Operations

We will not generate any operating revenues until the closing and completion of our initial business combination. We generatenon-operating income in the form of interest income on marketable securities held in the Trust Account. We are incurring expenses as a result of being a public company (for legal, financial reporting, accounting and auditing compliance),net loss, as well as a $3.0 million increase in non-cash expenses and a $2.5 million decrease in cash used for working capital. The period over period decrease in non-cash items is primarily due diligence expenses.to a $3.3 million increase in non-cash interest offset by a $0.7 million decrease in depreciation and amortization. The decrease in cash used for working capital for the period is primarily due to a $6.1 million increase in accounts payable and accrued expenses and a $1.0 million decrease in prepaid expense and other current assets, offset by a $4.1 million increase in accounts receivable and a $0.5 million increase in deferred revenue. Trade accounts receivable fluctuate from period to period depending on the period to period change in revenue and the timing of collections. Accounts payable fluctuate from period to period depending on the timing of purchases and payments.

Cash Flows Used in Investing Activities

Net cash used in investing activities was $5.1 million for the three months ended March 31, 2020 as compared to net cash used in investing activities of $2.2 million for the three months ended March 31, 2019. The increase in cash used is due to $2.3 million cash payments related to acquisitions in 2020 and increased purchases of property and equipment of $0.6 million.

Cash Flows Provided by Financing Activities

For the three months ended September 30, 2019, we hadMarch 31, 2020, net incomecash provided by financing activities of $654,498, which consisted of interest income on marketable securities held in the Trust Account of $1,141,748, offset by an unrealized loss on marketable securities held in our Trust Account of $15,659, operating costs of $274,695 and a provision for income taxes of $196,896.

For the nine months ended September 30, 2019, we had net income of $1,707,342, which consisted of interest income on marketable securities held in the Trust Account of $3,279,783, offset by operating costs of $1,017,122 and a provision for income taxes of $555,319.

For the period from August 2, 2018 (inception) through September 30, 2018, we had a net loss of $993, which consisted of operating and formation costs.

Liquidity and Capital Resources

On February 4, 2019, we consummated the Offering of 23,000,000 Units, which included the full exercise by the underwriters of their option to purchase an additional 3,000,000 Units, at a price of $10.00 per Unit, generating aggregate gross proceeds of $230,000,000. Simultaneously with the closing of the Offering, we consummated the sale of 6,350,000 Private Placement Warrants to our Sponsor at a price of $1.00 per warrant, generating aggregate gross proceeds of $6,350,000.

Following the Offering and private placement, a total of $230,000,000 was placed in the Trust Account and we had $1,269,082 of cash held outside of the Trust Account, after payment of all costs$24.5 million related to the Offering,draws on the revolving credit facility of $29.0 million, offset by payments of long-term debt of $4.3 million and available for working capital purposes. We paid $4,600,000lease obligations of underwriting fees at the closing of the Offering (an additional $8,050,000 of deferred underwriting fees may be paid upon closing of a business combination) and $466,578 of Offering costs.

$0.2 million. For the ninethree months ended September 30,March 31, 2019, net cash usedprovided by financing activities of $1.6 million related to the net borrowings from our Revolving Credit Facility of $6.0 million, offset by payments of long-term debt and capital lease obligations of $4.4 million.

Contractual Obligations

Our operating lease obligations are disclosed in operating activitiesNote 4 to our unaudited consolidated financial statements included elsewhere in this Quarterly Report on Form 10-Q. Rent expense for the three months ended March 31, 2020 and 2019 was $831,130. Net income of $1,707,342 was affected by interest earned on marketable securities held in the Trust Account of $3,279,783$3.8 million and changes in operating$3.6 million, respectively.

Off-Balance Sheet Financing Arrangements

We have no obligations, assets andor liabilities which provided $741,311 of cash from operating activities.

As of September 30, 2019, we had marketable securities held in the Trust Account of $233,279,783 (including approximately $3,280,000 of interest income) primarily consisting of money market funds. Interest income on the balance in the Trust Account maywould be used by us to pay taxes. Through September 30, 2019, we did not withdraw any interest earned on the Trust Account.

We intend to use substantially all of the funds held in the Trust Account, including any amounts representing interest earned on the Trust Account not previously released to us (less taxes payable and deferred underwriting commissions) to complete our initial business combination. To the extent that our equity or debt is used, in whole or in part, as consideration to complete our initial business combination, the remaining proceeds held in the Trust Account will be used as working capital to finance the operations of the target business or businesses, make other acquisitions and pursue our growth strategies.

As of September 30, 2019, we had cash of $477,134 held outside the Trust Account. We intend to use the funds held outside the Trust Account primarily to identify and evaluate target businesses, perform business due diligence on prospective target businesses, travel to and from the offices, plants or similar locations of prospective target businesses or their representatives or owners, review corporate documents and material agreements of prospective target businesses, and structure, negotiate and complete a business combination.

considered off-balance sheet arrangements. We do not believe we will needparticipate in transactions that create relationships with unconsolidated entities or financial partnerships, often referred to raise additional funds in order to meet expenditures requiredas variable interest entities, which would have been established for operating our business. However, if our estimatesthe purpose of the costsfacilitating off-balance sheet arrangements. We have not entered into any off-balance sheet financing arrangements, established any special purpose entities, guaranteed any debt or commitments of identifying a target business, undertakingin-depth due diligence and negotiating an initial business combination are less than the actual amount necessary to do so, we may have insufficient funds available to operate our business priorother entities or purchased any nonfinancial assets.

Recent Accounting Pronouncements

See Note 1 to our initial business combination. In order to fund working capital deficiencies or finance transaction costsconsolidated financial statements included in connection with an intended initial business combination, our Sponsor, officers“Item 1 – Financial Statements” included elsewhere in this Quarterly Report on Form 10-Q for a summary of accounting standards not yet adopted.


Critical Accounting Policies and directors or their respective affiliates may, but are not obligated to, loan us funds as may be required on anon-interestEstimates basis. If we complete our initial business combination, we would repay such loaned amounts. In the event that our initial business combination does not close, we may use a portion of the working capital held outside the Trust Account to repay such loaned amounts but no proceeds from our Trust Account would be used for such repayment. Up to $1,500,000 of such loans may be convertible into warrants of the post business combination entity at a price of $1.00 per warrant at the option of the lender. The warrants would be identical to the Private Placement Warrants. Prior to the completion of our initial business combination, we do not expect to seek loans from parties other than our Sponsors, officers, directors or their respective affiliates as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our Trust Account.

Moreover, we may need to obtain additional financing to complete our initial business combination, either because the transaction requires more cash than is available from the proceeds held in our trust account or because we become obligated to redeem a significant number of our public shares upon completion of the business combination, in which case we may issue additional securities or incur debt in connection with such business combination. If we are unable to complete our initial business combination because we do not have sufficient funds available to us, we will be forced to cease operations and liquidate the Trust Account.

Off-balance sheet financing arrangements

We did not have anyoff-balance sheet arrangements as of September 30, 2019.

Contractual obligations

We do not have any long-term debt, capital lease obligations, operating lease obligations or long-term liabilities.

Critical accounting policies

The preparation ofprepare our consolidated financial statements and related disclosures in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and income and expenses during the periods reported. Actual results could materially differ from those estimates. We have identified the following critical accounting policies:

Common stock subject to possible redemption

We account for our common stock subject to possible redemption in accordance with U.S. GAAP. In applying accounting principles, it is often required to use estimates. These estimates consider the guidancefacts, circumstances and information available, and may be based on subjective inputs, assumptions and information known and unknown to us. Material changes in Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.” Common stock subject to mandatory redemption is classified as a liability instrument and is measured at fair value. Conditionally redeemable common stock (including common stock that features redemption rights that are either within the controlcertain of the holder or subjectestimates that we use could potentially affect, by a material amount, our consolidated financial position and results of operations. Although results may vary, we believe our estimates are reasonable and appropriate. There were no changes to redemption upon the occurrence of uncertain events not solely within our control) is classified as temporary equity. At all other times, common stock is classified as stockholders’ equity. Our common stock features certain redemption rights that are considered to be outside ofcritical accounting policies from those described in our control and subject to occurrence of uncertain future events. Accordingly, common stock subject to possible redemption is presented at redemption value as temporary equity, outside of the stockholders’ equity section of our condensed consolidated balance sheets.

Net loss per common share

We apply thetwo-class method in calculating earnings per share. Shares of common stock subject to possible redemption which are not currently redeemable and are not redeemable at fair value, have been excluded from the calculation of basic net loss per share since such shares, if redeemed, only participate in their pro rata share of the Trust Account earnings. Our net income is adjustedAnnual Report on Form 10-K for the portion of income that is attributable to common stock subject to possible redemption,year ended December 31, 2019, as these shares only participate infiled with the earnings of the Trust Account and not our income or losses.SEC on March 26, 2020.

Recent accounting standards

Management does not believe that any recently issued, but not yet effective, accounting pronouncements, if currently adopted, would have a material effect on our condensed consolidated financial statements.

Item 3.      Quantitative and Qualitative Disclosures About Market RiskRisk.

Following the consummation of the Offering, the net proceeds of the Offering, including amounts in the Trust Account, may be invested in U.S. government treasury bills, notes or bonds with a maturity of 180 days or less or in certain money market funds that invest solely in US treasuries. Due to the short-term nature of these investments, we believe there will be no associated material exposureInterest Rate Risk

We are subject to interest rate risk.market risk in connection with our long-term indebtedness. Our principal interest rate exposure relates to outstanding amounts under the $340 million First Lien Facility as well as the Revolving Credit Facility of $30 million. Interest rate changes generally impact the amount of our interest payments and, therefore, our future net income and cash flows, assuming other factors are held constant. Assuming the amounts outstanding at March 31, 2020 are fully drawn, each one-eighth percentage point increase or decrease in the applicable interest rates would correspondingly change our annualized interest expense by approximately $0.1 million. We do not currently hedge our interest rate exposure.

Exchange Rate Risk

Results of operations for our non-U.S. subsidiaries are translated from the designated functional currency to the reporting currency of the U.S. dollar. Revenues and expenses are translated at average exchange rates for each month, while assets and liabilities are translated at balance sheet date exchange rates. Resulting net translation adjustments are recorded as a component of stockholders’ equity in “Accumulated other comprehensive (loss) income” in our Condensed Consolidated Balance Sheets included elsewhere in this Quarterly Report on Form 10-Q

Transaction gains and losses arising from currency exchange rate fluctuations on transactions denominated in a currency other than the local functional currency are included in “Other expense” in our Consolidated Statements of Comprehensive Loss included elsewhere in this Quarterly Report on Form 10-Q. Such transaction gains and losses may be realized or unrealized depending upon whether the transaction settled during the period or remains outstanding at the balance sheet date.

During the three months ended March 31, 2020 and 2019, we generated the equivalent of $16.2 million and $16.5 million, respectively, of U.S. dollar-denominated revenues in non-U.S. subsidiaries. Each 100 basis point increase or decrease in the average foreign currency rate to U.S. dollar exchange rate for the three month period would have correspondingly changed our revenues by approximately $0.2 million for each of the three months ended March 31, 2020 and 2019. We do not currently hedge our exchange rate exposure.

Item 4.     Controls and ProceduresProcedures.

Evaluation of Disclosure Controls and Procedures

DisclosureOur management, with the participation of our Chief Executive Officer and our Chief Financial Officer, has evaluated our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act as of the end of the period covered by this Quarterly Report on Form 10-Q. Based on that evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that, as of the end of the period covered by this Quarterly Report on Form 10-Q, our disclosure controls and procedures are designed at a reasonable assurance level and are effective to ensureprovide reasonable assurance that information we are required to be disclosed by usdisclose in ourreports that we file or submit under the Exchange Act reports is recorded, processed, summarized, and reported within the time periods specified in the SEC’sSEC rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officerChief Executive Officer and principal financial officer or persons performing similar functions,Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Under the supervision and with the participation of our management, including our principal executive officer and principal financial and accounting officer, we conducted an evaluation of the effectiveness of our disclosure controls and procedures as of the end of the fiscal quarter ended September 30, 2019, as such term is defined in Rules13a-15(e) and15d-15(e) under the Exchange Act. BasedManagement’s Report on this evaluation, our principal executive officer and principal financial and accounting officer have concluded that during the period covered by this report, our disclosure controls and procedures were effective at a reasonable assurance level and, accordingly, provided reasonable assurance that the information required to be disclosed by us in reports filed under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

Changes in Internal ControlControls Over Financial Reporting

There was no change inThis Quarterly Report on Form 10-Q does not include a report of management’s assessment regarding our internal control over financial reporting that occurred(as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) due to a transition period established by rules of the SEC.

Changes to Internal Control over Financial Reporting

There have been no changes in our internal controls over financial reporting during theour most recently completedrecent fiscal quarter covered by this Quarterly Report on Form10-Qthat hashave materially affected, or isare reasonably likely to materially affect, our internal controls over financial reporting.


Inherent Limitation on the Effectiveness of Internal Control

The effectiveness of any system of internal control over financial reporting, including ours, is subject to inherent limitations, including the exercise of judgment in designing, implementing, operating, and evaluating the controls and procedures, and the inability to eliminate misconduct completely. Accordingly, any system of internal control over financial reporting, including ours, no matter how well designed and operated, can only provide reasonable, not absolute assurances. In addition, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. We intend to continue to monitor and upgrade our internal controls as necessary or appropriate for our business but cannot assure you that such improvements will be sufficient to provide us with effective internal control over financial reporting.



PART II - OTHER INFORMATIONPart II. Other Information

Item 5. 1.     Legal Proceedings.

In the ordinary conduct of our business, we are subject to lawsuits, arbitrations and administrative proceedings from time to time. We vigorously defend these claims; however, no assurances can be given as to the outcome of any pending legal proceedings. We believe, based on currently available information, that the outcome of any existing or known threatened proceedings, even if determined adversely, should not have a material adverse effect on our business, financial condition, liquidity or results of operations.

Item 1A.  Risk Factors.

Except as noted below, there have been no material changes to the risk factors disclosed in “Risk Factors” in Part I, Item 1A, of our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 as filed with the SEC on March 26, 2020.

An outbreak of disease or similar public health threat, such as a novel strain of coronavirus, could have a material adverse impact on the Company’s business, operating results and financial condition.

We are vulnerable to the general economic effects of disease outbreaks and similar public health threats. COVID-19 began to spread globally in late 2019 and has been declared a pandemic by the World Health Organization and is impacting worldwide economic activity. A public health pandemic, including COVID-19, poses the risk that we or our employees, contractors, suppliers, customers and other business partners may be prevented from conducting business activities for an indefinite period of time, including due to shutdowns that may be requested or mandated by governmental authorities. We have offices in 19 countries, including regions significantly impacted by COVID-19.  We have transitioned the majority of our workforce to a remote working model, whereby employees execute their job functions from home leveraging a two-factor authenticated and secure VPN. Notably, our document review business, which has always been conducted entirely at our facilities, has transitioned to a remote model to ensure continuity of operations. If shutdowns continue, our sales force and in-person services may be impacted, which could impact our sales and operating results.  The extent to which COVID-19 will impact our results, including the ability of our customers to continue to pay in a timely manner, is dependent on future developments, which are uncertain and unpredictable, including new information which may emerge concerning the severity of COVID-19 and the actions taken to contain it or treat its impact.  While it is not possible at this time to estimate the full impact that COVID-19 could have on our business, the continued spread of COVID-19 and the measures taken by the governments of countries affected could adversely impact our business, financial condition or results of operations.

Item 2.     Unregistered Sales of Equity Securities and Use of Proceeds from Registered SecuritiesProceeds.

In August 2018, we issued to our Sponsor an aggregate of 5,750,000 shares of Class B common stock in exchange for a capital contribution of $25,000, or approximately $0.004 per share. Such shares were issued in connection with our organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended (“Securities Act”).

On February 4, 2019, we consummated the Offering of 23,000,000 units, including 3,000,000 units subject to the underwriters’ over-allotment option. Each unit consisted of one share of Class A common stock and one redeemable warrant, with each warrant entitling the holder to purchase one share of Class A common stock at a price of $11.50 per share. The units were sold at an offering price of $10.00 per unit, generating gross proceeds of $230,000,000. Cantor Fitzgerald & Co. acted as the sole book-running manager and BTIG, LLC acted as lead manager of the offering. The securities sold in the IPO were registered under the Securities Act on a registration statement on FormS-1 (No.333-229027) which became effective under Section 8(a) of the Securities Act on January 31, 2019.

None.

Simultaneously with the consummation of the IPO, we consummated the private placement of 6,350,000 Private Placement Warrants at a price of $1.00 per Private Placement Warrant, generating total proceeds of $6,350,000. The Private Placement Warrants were purchased by the Sponsor. This issuance was made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. The Private Placement Warrants are identical to the warrants included in the units sold in the Offering, except that the Private Placement Warrants arenon-redeemable and may be exercised on a cashless basis, in each case so long as they continue to be held by the initial purchaser or its permitted transferees. The purchaser of Private Placement Warrants has agreed not to transfer, assign, or sell any of the Private Placement Warrants or Class A common stock underlying the Private Placement Warrants (except to certain permitted transferees) until 30 days after the completion of our initial Business Combination.

Transaction costs amounted to $13,116,578, consisting of $4,600,000 of underwriting fees, $8,050,000 of deferred underwriting fee and $466,578 of other costs. In addition, as of September 30, 2019, $477,134 of net Offering proceeds is held as cash outside of the Trust Account and is available for working capital purposes.

Item 6.     Exhibits and Financial Statement Schedules.

a)

Exhibits

Exhibit Index

 

Exhibit

Number

Exhibit No.

Description

3.1

Second Amended and Restated Certificate of Incorporation of KLDiscovery Inc. (incorporated by reference to

Exhibit 3.1 to the Current Report on Form 8-K filed December 26, 2019)

31.1

3.2

Amended and Restated Bylaws of KLDiscovery Inc. (incorporated by reference to Exhibit 3.2 to the Current

Report on Form 8-K filed December 26, 2019)

31.1*

Certification of ChiefPrincipal Executive Officer pursuantPursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2*

31.2

Certification of ChiefPrincipal Financial Officer pursuantPursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1*

32

Certification of ChiefPrincipal Executive Officer and Chief Financial Officer pursuantPursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

32.2*

Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

101.INS

XBRL Instance Document

101.SCH

101.SCH

XBRL Taxonomy Extension Schema Document

101.CAL

101.CAL

XBRL Taxonomy Extension Calculation Linkbase Document

101.DEF

101.DEF

XBRL Taxonomy Extension Definition Linkbase Document

101.LAB

101.LAB

XBRL Taxonomy Extension Label Linkbase Document

101.PRE

101.PRE

XBRL Taxonomy Extension Presentation Linkbase Document

*

Filed herewith.


SIGNATURES

SIGNATURES

In accordance withPursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.authorized.

 

KLDiscovery Inc.

PIVOTAL ACQUISITION CORP.

Date: November 14, 2019

By:

/s/ JonathanChristopher J. LedeckyWeiler

Name:Jonathan

Christopher J. LedeckyWeiler

Title:

Chairman of the Board and

Chief Executive Officer (Principal Executive Officer)

By:

/s/ James H.R. Brady

Name:James H.R. Brady
Title:

Chief Financial Officer

(Principal Financial and Accounting Officer)

 

13Date: May 15, 2020

28