COMMITMENTS AND CONTINGENCIES | 9 Months Ended |
Sep. 30, 2013 |
Commitments and Contingencies Disclosure [Abstract] | ' |
COMMITMENTS AND CONTINGENCIES | ' |
| 12. | COMMITMENTS AND CONTINGENCIES |
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Contingent Consideration Liability for the Acquisition of Combat Training Solutions, Inc. |
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On December 22, 2011, CTI entered into a Stock Purchase Agreement (“SPA”) with CTS and the sole stockholder of CTS. Pursuant to the SPA, CTI purchased all of the issued and outstanding capital stock of CTS using a combination of cash, shares of our common stock plus other consideration that is contingent on future financial performance of CTS. The contingent consideration ranges from $0 to $5.75 million and is based on the financial performance of the acquired business during the combined calendar years 2012 and 2013, to be paid after calendar year 2013 when CTS’s financial performance is known. Up to $5.5 million of the contingent payment is based on CTS achieving certain cumulative gross margin thresholds during the calendar years ending December 31, 2012 and 2013. This payment will consist of a combination of cash and our common stock. An additional payment of $250,000 of our common stock is contingent upon CTS achieving cumulative gross margin of $6.0 million during calendar years ending December 31, 2012 and 2013. |
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See Note 13 for an estimate of the fair value of this liability and a description of how we estimate its fair value. |
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Legal |
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Civil Action No. 06-706 in Superior Court of the Commonwealth of Massachusetts |
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On January 23, 2006, before we owned CTI, the former owners of CTI (from whom we purchased CTI) (the “Former Owners”) acquired all of the outstanding capital stock of Omniglow Corporation (the “Transaction”) and changed the name of the company to Cyalume Technologies, Inc. Prior to, or substantially simultaneously with, the Transaction, CTI sold certain assets and liabilities related to Omniglow Corporation’s novelty and retail business to certain former Omniglow Corporation stockholders and management (the “Omniglow Buyers”). This was done because CTI sought to retain only the Omniglow Corporation assets and current liabilities associated with its government, military and safety business. During 2006, CTI and the Omniglow Buyers commenced litigation and arbitration proceedings against one another. Claims include breaches of a lease and breaches of various other agreements between CTI and the Omniglow Buyers. These proceedings are known as Civil Action No. 06-706 in Superior Court of the Commonwealth of Massachusetts (the “Court”). |
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On December 19, 2008, while Civil Action 06-706 was still unresolved, we acquired CTI (the “Acquisition”). According to the Stock Purchase Agreement between the Former Owners and us, the Former Owners retained the responsibility for paying for all costs and liabilities associated with Civil Action No. 06-706. |
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On July 18, 2011, CTI received an Order for Entry of Final Judgment in Civil Action No. 06-706 in which the Court awarded approximately $2.6 million in damages to Omniglow, LLC. Prejudgment interest at the rate of 12% percent per annum since the filing of the complaint in 2006 will accrue on approximately $1.3 million of the damages. The Court also awarded Omniglow, LLC reimbursement of attorney fees and costs of approximately $235,000, on which interest at the rate of 12% percent per annum will accrue beginning with the date of the final ruling. |
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On July 12, 2012, the Court issued an Amended Final Judgment and, on September 20, 2012, a Final Judgment. There were no changes to the previously described damage awards. In response, on October 17, 2012, we filed our Notice of Appeal and on August 2, 2013, we filed our Formal Appeal. Our appeal contains a number of bases for overturning the awards. |
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Although we have appealed the final judgment, we previously recorded a contingent legal obligation in the full amount of the final ruling (approximately $3.9 million). Since the Former Owners (i) retained the responsibility for paying the costs and liabilities associated with Civil Action No. 06-706 and (ii) are related parties under U.S. GAAP due to their ownership interest in us and their membership on our board of directors, the Company recorded approximately $4.3 million, which includes the $3.9 million contingent legal obligation and other costs incurred while litigating Civil Action No. 06-706, within due from related party, net on the condensed consolidated balance sheet as of September 30, 2013. This due from related party, net amount is offset by an allowance of approximately $3.7 million as of September 30, 2013, which is recorded on the provision for uncollectible receivable – related party line item on the Company’s condensed consolidated statements of comprehensive loss. The overall due from related party, net amount is approximately $563,000 as of September 30, 2013. In connection with certain financial transactions being negotiated by the Company, management expects a modification to an indemnification agreement limiting the collectible amount of this related party receivable to approximately $563,000. |
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Arbitration with Former Employee |
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On December 22, 2011, CTI entered into the SPA with CTS and Antonio Colon, the sole stockholder of CTS. Pursuant to the SPA, CTI purchased all of the issued and outstanding capital stock of CTS in return for consideration that included contingent consideration ranging from $0 to $5.75 million, which is based on CTS’s financial performance during the period of January 1, 2012 through December 31, 2013. |
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On June 15, 2012, we received a copy of a demand for arbitration filed by Mr. Colon with the American Arbitration Association. The demand alleges, among other things, that CTI had constructively terminated Mr. Colon’s employment without cause and that Cyalume and CTI had breached certain provisions of the SPA. Mr. Colon seeks, among other things, payment of the maximum potential contingent consideration amount of $5.75 million, payment of salary, wages, bonuses and benefits pursuant to Mr. Colon’s employment agreement with CTI, and reimbursement of his attorneys’ fees and costs related to this matter. |
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Cyalume and CTI considered the allegations in the Demand for Arbitration by Mr. Colon to be without merit and, in addition, the position of Cyalume and CTI was that Mr. Colon was not constructively terminated. On August 17, 2012, Mr. Colon filed a Complaint in Federal Court and on September 11, 2012, he filed to have the arbitration withdrawn. In addition, on September 11, 2012, Mr. Colon chose to cease working for us. |
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CTI filed a Motion to Dismiss the Complaint in Federal Court and to compel the controversy to arbitration before the American Arbitration Association. The District Court for the District of Delaware held a hearing on January 23, 2013, at which it dismissed the Complaint in Federal Court without prejudice and indicated that the arbitration should proceed. On September 23, 2013, the parties entered into an agreement to resolve this matter, the terms of which call for the Company to make a series of payments over five years to Mr. Colon and to transfer a property located in Colorado Springs, CO to Mr. Colon. The property was originally acquired by the Company at the time of the CTS acquisition on December 22, 2011. |
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Commitments to Related Parties |
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See Note 10 for descriptions of a lease agreement, a note payable and a management agreement with related parties. |
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