| Commitments and Contingencies | 12. Commitments and contingencies Operating and Capital Leases Our primary operating lease commitment as of June 30, 2017, related to our headquarters in San Jose, California, requires monthly lease payments through September 2026. We recognize rent expense on a straight-line basis over the lease period. Where leases contain escalation clauses, rent abatements, or concessions, such as rent holidays and landlord or tenant incentives or allowances, we apply them in the determination of straight-line rent expense over the lease term. Rent expense for all facility leases was $2.0 million and $2.0 million for the three months ended June 30, 2017 and 2016, respectively, and $4.0 million and $4.3 million for the six months ended June 30, 2017 and 2016, respectively. As of June 30, 2017, the future minimum commitments under our operating leases were as follows (in thousands):
Operating
Leases
Remainder of 2017
$
4,513
2018
9,073
2019
7,871
2020
7,307
2021
7,374
2022 and thereafter
34,165
Net minimum lease payments
$
70,303
Legal Contingencies Linex Patent Litigation . In March 2013, Linex Technologies, Inc., a non-producing entity, or Linex, filed suit against us in United States District Court for the Southern District of Florida. Linex alleged that certain of our networking technology infringes United States Patent Nos. 6,493,377 and 7,167,503. We filed an answer in May 2013. In January 2014, the court granted the plaintiff’s request for a stay of the matter, pending reexamination of the patents at issue by the United States Patent and Trademark Office, or USPTO. In September 2014, Linex amended certain patent claims and canceled certain other patent claims based upon the USPTO’s completed reexaminations, and in October 2014, the court lifted the stay of the matter. In January 2015, Linex filed an amended complaint to incorporate facts related to the completed reexaminations, and we filed an answer responding to the complaint and raising additional defenses. In June 2015, the court stayed the action pending the USPTO’s completion of further ex parte reexaminations of the patents at issue. In July 2017, the USPTO issued a reexamination certificate with all of the claims cancelled for the ‘377 patent. We believe that we have meritorious defenses to Linex’s allegations and intend to continue vigorously defending against the action. Atlas/ComEd, Atlas/PG&E, and Atlas/FP&L Patent Litigation . In November 2015, Atlas IP, LLC filed separate suits against our customers Commonwealth Edison Company, or ComEd, and Pacific Gas and Electric Co., or PG&E alleging infringement of United States Patent No. 5,371,734 by communications between smart meters and access points over a neighborhood area network using wireless communication modules and networking equipment supplied by us. In May 2016, Atlas filed a similar suit against our customer Florida Power & Light Company, or FP&L. We have agreed to assume the defense in each of these suits. ComEd PG&E . FP&L . We believe that we have meritorious defenses to Atlas IP’s allegations in each of these matters, and intend to continue vigorously defending the actions as required. Acoustic Technology Patent Litigation. In July 2016, Acoustic Technology, Inc., a non-producing entity, filed suit in United States District Court for the Eastern District of Texas, Marshall Division against us. The lawsuit alleges infringement of United States Patent Nos. 5,986,574, and 6,509,841 by certain meters and networking technology and services that we provide. The patents will expire in late 2017 and early 2018. We filed a motion to dismiss, as well as a motion to transfer the matter to the Northern District of California, in September 2016. The motion to transfer was granted in March 2017. Also in March 2017, we filed several petitions for inter partes review with the USPTO, requesting the USPTO to find certain claims of the Acoustic Patents to be unpatentable. In July 2017, the court stayed the suit pending review of the petitions for inter partes review by the USPTO. We believe that we have meritorious defenses to Acoustic’s allegations and intend to vigorously defend ourselves. In addition to the matters described above, from time to time we may be subject to other legal proceedings and claims in the ordinary course of business. We have received, and may in the future continue to receive, claims from third parties asserting infringement of their intellectual property rights. We may, from time to time, also be subject to various legal or government claims, disputes, or investigations. Such matters may include, but not be limited to, claims, disputes, or investigations related to warranty, refund, breach of contract, employment, intellectual property, government regulation, compliance or other matters. Future litigation may be necessary to defend ourselves and our customers by determining the scope, enforceability and validity of third-party rights or to establish our rights. There can be no assurance with respect to the outcome of any current or future litigation brought against us or pursuant to which we have indemnification obligations and the outcome could have a material adverse impact on our business, operating results and financial condition. As of June 30, 2017, we have not recorded any amounts for contingent losses associated with the matters described above based on our belief that losses, while reasonably possible, are not probable. Unless otherwise stated, we are currently unable to predict the final outcome of these lawsuits and therefore cannot determine the likelihood of loss nor estimate a range of possible loss. We are directly involved with various unresolved legal actions and claims, and are indirectly involved with proceedings by administrative bodies such as public utility commissions, arising in the ordinary course of business. We do not believe that any liability from any reasonably foreseeable disposition of such legal actions and claims, individually or in the aggregate, would have a material effect on our consolidated financial statements. There are many uncertainties associated with any litigation or claim, and we cannot be certain that these actions or other third-party claims will be resolved without costly litigation, fines and/or substantial settlement payments. If that occurs, our business, financial condition and results of operations could be materially and adversely affected. If information becomes available that causes us to determine that a loss in any of our pending litigation matters, claims or settlements is probable, and a reasonable estimate of the loss associated with such events can be made, we will record the estimated loss at that time. Customer Performance and Other Commitments Certain customer agreements require us to obtain letters of credit or surety bonds in support of our obligations under such arrangements. These letters of credit or surety bonds typically provide a guarantee to the customer for future performance, which usually covers the deployment phase of a contract and may on occasion cover the operations and maintenance phase of service contracts. As of June 30, 2017 and December 31, 2016, we had a total of $15.7 million and $17.2 million, respectively, of standby letters of credit issued under a credit facility with a financial institution. As of June 30, 2017 and December 31, 2016, $0.5 million (AUD $0.6 million) and $4.6 million (AUD $6.1 million) of these standby letters of credit were denominated in Australian dollars, respectively, and $3.3 million (AED 12.4 million) and $4.5 million (AED 16.4 million) of these standby letters of credit were denominated in United Arab Emirates Dirham, respectively. In accordance with the terms of our credit facility, fluctuations in the exchange rate will increase or decrease the amount available to us under the credit facility. On December 18, 2015, we entered into a senior secured credit facilities credit agreement, or Credit Facility, with Silicon Valley Bank and HSBC, which provides a revolving loan facility in an aggregate amount not to exceed $75.0 million, with an available letter of credit sub-facility in the aggregate amount of $75.0 million and an available swingline sub-facility in the aggregate amount of $5.0 million. As of June 30, 2017, there were no borrowings outstanding under the Credit Facility; however, this line of credit is backing $15.7 million of letters of credit, leaving $59.3 million of available capacity for cash borrowings or additional letters of credit or swingline loan, subject to compliance with financial covenants and other customary conditions to borrowings, which varies at each period end. As of June 30, 2017, we were in compliance with the financial covenants in the credit agreement. As of June 30, 2017, we had a $16.8 million unsecured surety bond. The surety bond provides a financial guarantee to support performance obligations under certain customer agreements. In the event any such letters of credit or surety bonds are called, we would be obligated to reimburse the issuer of the letters of credit or surety bond. We do not believe there will be any claims against currently outstanding letters of credit or surety bonds. Indemnification Commitments Directors, Officers and Employees . In accordance with our bylaws and/or pursuant to indemnification agreements we have entered into with directors, officers and certain employees, we have indemnification obligations to our directors, officers and employees for claims brought against these persons arising out of certain events or occurrences while they are serving at our request in such a capacity. We maintain a director and officer liability insurance coverage to reduce our exposure to such obligations, and payments made under these agreements. To date, there have been no indemnification claims by these directors, officers and employees. Customers and Third-Party Device Manufacturers . Refer to the discussion above under the heading Legal Contingencies for a description of our indemnification obligations. Our contracts with customers and third-party device manufacturers typically provide indemnification for claims filed by third-parties alleging that our products and services sold to the customer or manufacturer infringe or misappropriate any patent, copyright, trademark or other intellectual property right. In our customer contracts, we also typically provide an indemnification for third-party claims resulting from death, personal injury or property damage caused by the negligence or willful misconduct of our employees and agents in connection with the performance of certain contracts. Under our customer and third-party device manufacturer indemnities, we typically agree to defend the utility customer or third-party device manufacturer, as the case may be, from such claims, and pay any resulting costs, damages and attorneys’ fees awarded against the indemnified party with respect to such claims, provided that (a) the indemnified party promptly notifies us in writing of the claim, (b) the indemnified party provides reasonable assistance to us at our expense, and (c) we have sole control of the defense and all related settlement negotiations. Insurance . We maintain various insurance coverages, subject to policy limits, that enable us to recover a portion of any amounts paid by us in connection with our obligation to indemnify our customers and third-party device manufacturers. However, because our maximum liability associated with such indemnification obligations generally is not stated explicitly in the related agreements, and further because many states prohibit limitations of liability for such indemnified claims, the maximum potential amount of future payments we could be required to make under these indemnification provisions could significantly exceed insurance policy limits. |
