e10vqza
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q/A
Amendment No. 1
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þ |
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended June 30, 2009
Or
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o |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from _____ to _______
Commission File Number 000-26659
Move, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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95-4438337 |
(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.) |
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910 East Hamilton Avenue
Campbell, California
(Address of Principal Executive Offices)
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95008
(Zip Code) |
(805) 557-2300
(Registrants Telephone Number, including Area Code:)
30700 Russell Ranch Road
Westlake Village, California 91362
(Former Name, Former Address and Former Fiscal Year, If Changed Since Last Report)
Indicate by check mark whether registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 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 þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the
Exchange Act.
Large Accelerated filer o |
Accelerated filer þ |
Non-Accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes o No þ
At August 3, 2009, the registrant had 154,462,248 shares of its common stock outstanding.
EXPLANATORY NOTE REGARDING RESTATEMENT
This Form 10-Q/A is an amendment to our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009, originally filed with the Securities and Exchange Commission (SEC) on August
7, 2009 (the Original Filing). This Form 10-Q/A is being filed to restate our unaudited
condensed consolidated financial statements as of June 30, 2009 and for the three and six month
periods ended June 30, 2009 and 2008 to reflect the effects of adjustments to stock-based
compensation expense. These changes are more fully described in Note 2 of the condensed
consolidated financial statements included in this Form 10Q/A.
As a result of identifying errors in stock-based compensation expense as explained below, we
restated our audited consolidated financial statements for fiscal years 2008, 2007 and 2006 in our
Form 10-K/A for the fiscal year ended December 31, 2008, restated our unaudited condensed
consolidated financial statements as of March 31, 2009 and for the three month periods ended March
31, 2009 and 2008 in our Form 10-Q/A for the quarterly period ended March 31, 2009 and restated our
unaudited condensed consolidated financial statements as of June 30, 2009 and for the three and six
month periods ended June 30, 2009 and 2008 in this Form 10-Q/A. The Form 10-K/A for the fiscal year
ended December 31, 2008 and Form 10-Q/A for the quarterly period ended March 31, 2009 are being
filed with the SEC concurrently with this Form 10-Q/A.
All amendments and restatements to the financial statements affected are non-cash in nature.
Since fiscal 2006, the Company has licensed software from a third party provider to automate
the administration of its employee equity programs and calculate its stock-based compensation
expense (the Software). In the third quarter of 2009, the Company learned that the Software
contained an error in how it calculated stock-based compensation expense and that the Software
provider had a new version of the Software that was designed to correct this error. The Company
upgraded to the new version of the Software and identified differences in the stock-based
compensation expense of prior periods. After reviewing such differences, the Company identified an
error in its accounting for stock-based compensation expense. The prior version of the Software
incorrectly calculated stock-based compensation expense by continuing to apply a weighted average
forfeiture rate to the vested portion of stock option awards until the grants final vest date,
rather than reflecting actual forfeitures as awards vested, resulting in an understatement of
stock-based compensation expense in certain periods prior to the grants final vest date. As a
result of identifying the error, on October 30, 2009, the Company concluded that accounting
adjustments were necessary to correct certain previously issued financial statements. To correct
these errors, the Company recorded a $0.1 million and $0.5 million decrease in stock based
compensation expense for the three and six months ended June 30, 2009, respectively, and a $0.7
million and $1.5 million increase in stock based compensation expense for the three and six months
ended June 30, 2008, respectively, from amounts previously reported. An explanation of the errors
and their impact on the Companys financial statements is contained in Note 2 to the financial
statements contained in Item 1 of this report.
The following sections of this Form 10-Q/A have been amended as a result of the restatements:
Part I:
Item 1. Condensed Consolidated Financials Statements and Notes thereto
Item 2. Managements Discussion and Analysis of Financial Condition and Results of
Operations, as to matters related to the restatements
Item 4. Controls and Procedures, as to matters related to the restatements
Part II:
Item 6. Exhibits, as to the certifications filed as Exhibits 31.1, 31.2, 32.1 and 32.2
For convenience of the reader, this Form 10-Q/A sets forth the Original Filing in its entirety
and includes items that have been changed as a result of the restatement as well as items that are
unchanged from the Original Filing. This Form 10-Q/A speaks as of the original filing date of the
Original Filing and has not been updated to reflect other events occurring subsequent to the
original filing date, including forward-looking statements and all items contained in this Form
10-Q/A that were not directly impacted by the restatement, which should be read in their historical
context. References to the Form 10-Q herein shall refer to this Form 10-Q/A filed on November 9,
2009 and references to the Annual Report on Form 10-K for the fiscal year ended December 31, 2008
herein shall refer to the Annual Report on Form 10-K/A filed on November 9, 2009.
2
INDEX
Move®, REALTOR.com®, Top Producer®, SeniorHousing.netTM, and
Moving.comTM are our trademarks or are exclusively licensed to us. This
quarterly report on Form 10-Q/A contains trademarks of other companies and organizations. REALTOR®
is a registered collective membership mark that may be used only by real estate professionals who
are members of the National Association of REALTORS® and subscribe to its code of ethics.
3
PART I. FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements
MOVE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
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June 30, |
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December 31, |
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2009 |
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2008 |
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(As restated)(1) |
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(As restated)(1) |
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(Unaudited) |
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(In thousands) |
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ASSETS |
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Current assets: |
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Cash and cash equivalents |
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$ |
108,887 |
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$ |
108,935 |
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Accounts receivable, net |
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12,022 |
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12,833 |
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Other current assets |
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11,386 |
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11,399 |
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Restricted cash |
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3,128 |
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Total current assets |
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135,423 |
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133,167 |
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Property and equipment, net |
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21,178 |
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21,934 |
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Long-term investments |
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111,800 |
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111,800 |
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Goodwill, net |
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16,969 |
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16,969 |
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Intangible assets, net |
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3,674 |
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3,933 |
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Restricted cash |
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3,209 |
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Other assets |
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1,629 |
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995 |
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Total assets |
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$ |
290,673 |
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$ |
292,007 |
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LIABILITIES AND STOCKHOLDERS EQUITY |
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Current liabilities: |
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Accounts payable |
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$ |
3,032 |
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$ |
4,051 |
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Accrued expenses |
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21,666 |
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22,747 |
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Deferred revenue |
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19,298 |
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23,991 |
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Obligations under capital leases |
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339 |
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Line of credit |
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64,700 |
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64,700 |
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Total current liabilities |
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108,696 |
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115,828 |
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Other non-current liabilities |
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1,162 |
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2,043 |
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Total liabilities |
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109,858 |
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117,871 |
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Commitments and contingencies (see note 18) |
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Series B convertible preferred stock |
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108,902 |
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106,297 |
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Stockholders equity: |
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Series A convertible preferred stock |
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Common stock |
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155 |
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153 |
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Additional paid-in capital |
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2,105,126 |
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2,094,135 |
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Accumulated other comprehensive income |
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(17,176 |
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(17,183 |
) |
Accumulated deficit |
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(2,016,192 |
) |
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(2,009,266 |
) |
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Total stockholders equity |
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71,913 |
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67,839 |
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Total liabilities and stockholders equity |
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$ |
290,673 |
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$ |
292,007 |
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(1) |
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See Note 2 Restatement of Notes to Condensed Consolidated Financial Statements. |
The accompanying notes are an integral part of these unaudited
Condensed Consolidated Financial Statements.
4
MOVE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
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Three Months Ended |
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Six Months Ended |
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June 30, |
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June 30, |
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2009 |
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2008 |
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2009 |
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2008 |
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(As restated)(1) |
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(As restated)(1) |
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(As restated)(1) |
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(As restated)(1) |
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(In thousands, except per share amounts) |
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(Unaudited) |
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Revenue |
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$ |
54,637 |
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$ |
61,437 |
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$ |
109,505 |
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$ |
123,379 |
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Cost of revenue |
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12,804 |
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11,214 |
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25,451 |
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22,649 |
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Gross profit |
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41,833 |
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50,223 |
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84,054 |
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100,730 |
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Operating expenses: |
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Sales and marketing |
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21,387 |
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23,140 |
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42,149 |
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47,266 |
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Product and web site development |
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6,425 |
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6,802 |
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12,808 |
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13,689 |
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General and administrative |
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11,364 |
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20,177 |
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35,001 |
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43,124 |
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Amortization of intangible assets |
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108 |
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|
197 |
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|
259 |
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|
394 |
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Litigation settlement |
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975 |
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975 |
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Total operating expenses |
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40,259 |
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50,316 |
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91,192 |
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104,473 |
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Operating income (loss) from continuing operations |
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1,574 |
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(93 |
) |
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(7,138 |
) |
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(3,743 |
) |
Interest income, net |
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314 |
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1,521 |
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449 |
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3,578 |
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Other income, net |
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386 |
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|
109 |
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|
491 |
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180 |
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Income (loss) from continuing operations before income taxes |
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2,274 |
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1,537 |
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(6,198 |
) |
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15 |
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Provision for income taxes |
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81 |
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162 |
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177 |
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203 |
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Income (loss) from continuing operations |
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2,193 |
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1,375 |
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(6,375 |
) |
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(188 |
) |
Income (loss) from discontinued operations |
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107 |
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(3,076 |
) |
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(249 |
) |
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(5,650 |
) |
Gain on disposition of discontinued operations |
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2,303 |
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2,303 |
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Net income (loss) |
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4,603 |
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(1,701 |
) |
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(4,321 |
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(5,838 |
) |
Convertible preferred stock dividend and related accretion |
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(1,307 |
) |
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(1,272 |
) |
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(2,605 |
) |
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(2,537 |
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Net income (loss) applicable to common stockholders |
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$ |
3,296 |
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$ |
(2,973 |
) |
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$ |
(6,926 |
) |
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$ |
(8,375 |
) |
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Basic income (loss) per share applicable to common stockholders: (see
note 12) |
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Continuing operations |
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$ |
0.01 |
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$ |
0.00 |
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$ |
(0.06 |
) |
|
$ |
(0.02 |
) |
Discontinued operations |
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0.02 |
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(0.02 |
) |
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|
0.01 |
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(0.04 |
) |
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Basic net income (loss) per share applicable to common stockholders |
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$ |
0.02 |
|
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.06 |
) |
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Diluted income (loss) per share applicable to common stockholders: (see
note 12) |
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Continuing operations |
|
$ |
0.01 |
|
|
$ |
0.00 |
|
|
$ |
(0.06 |
) |
|
$ |
(0.02 |
) |
Discontinued operations |
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|
0.02 |
|
|
|
(0.02 |
) |
|
|
0.01 |
|
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|
(0.04 |
) |
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Diluted net income (loss) per share applicable to common stockholders |
|
$ |
0.02 |
|
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.06 |
) |
|
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|
Shares used to calculate basic and diluted net income (loss) per
share applicable to common stockholders: (see note 12) |
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Basic |
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|
152,920 |
|
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|
151,551 |
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|
153,019 |
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|
151,383 |
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Diluted |
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|
156,552 |
|
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|
158,292 |
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|
153,019 |
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|
151,383 |
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|
(1) |
|
See Note 2 Restatement of Notes to Condensed Consolidated Financial Statements. |
The accompanying notes are an integral part of these unaudited
Condensed Consolidated Financial Statements.
5
MOVE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
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Six months ended |
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|
June 30, |
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|
2009 |
|
|
2008 |
|
|
|
(As restated)(1) |
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|
(As restated)(1) |
|
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|
(In thousands) |
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|
(Unaudited) |
|
Cash flows from operating activities: |
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Loss from continuing operations |
|
$ |
(6,375 |
) |
|
$ |
(188 |
) |
Adjustments to reconcile loss from continuing operations to net cash provided by
continuing operating activities: |
|
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|
|
|
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|
Depreciation |
|
|
5,287 |
|
|
|
5,512 |
|
Amortization of intangible assets |
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|
259 |
|
|
|
394 |
|
Provision for doubtful accounts |
|
|
811 |
|
|
|
440 |
|
Loss on sale of property and equipment |
|
|
|
|
|
|
51 |
|
Stock-based compensation and charges |
|
|
11,925 |
|
|
|
7,023 |
|
Change in market value of embedded derivative liability |
|
|
(536 |
) |
|
|
(155 |
) |
Other non-cash items |
|
|
(56 |
) |
|
|
283 |
|
|
|
|
|
|
|
|
|
|
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(51 |
) |
|
|
2,116 |
|
Other assets |
|
|
354 |
|
|
|
(2,865 |
) |
Accounts payable and accrued expenses |
|
|
(1,774 |
) |
|
|
(760 |
) |
Deferred revenue |
|
|
(4,701 |
) |
|
|
(1,092 |
) |
|
|
|
|
|
|
|
Net cash provided by continuing operating activities |
|
|
5,143 |
|
|
|
10,759 |
|
Net cash used in discontinued operating activities |
|
|
(1,225 |
) |
|
|
(4,366 |
) |
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
3,918 |
|
|
|
6,393 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
Purchases of property and equipment |
|
|
(4,453 |
) |
|
|
(5,130 |
) |
Proceeds from sale of property and equipment |
|
|
|
|
|
|
31 |
|
Maturities of short-term investments |
|
|
|
|
|
|
1,800 |
|
Purchases of short-term investments |
|
|
|
|
|
|
(21,552 |
) |
|
|
|
|
|
|
|
Net cash used in continuing investing activities |
|
|
(4,453 |
) |
|
|
(24,851 |
) |
Net cash provided by discontinued investing activities |
|
|
1,739 |
|
|
|
799 |
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(2,714 |
) |
|
|
(24,052 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options |
|
|
70 |
|
|
|
972 |
|
Tax withholding related to net share settlements of restricted stock awards |
|
|
(1,064 |
) |
|
|
|
|
Restricted cash |
|
|
81 |
|
|
|
176 |
|
Payments on capital lease obligations |
|
|
(339 |
) |
|
|
(1,002 |
) |
|
|
|
|
|
|
|
Net cash (used in) provided by financing activities |
|
|
(1,252 |
) |
|
|
146 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash equivalents |
|
|
(48 |
) |
|
|
(17,513 |
) |
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, beginning of period |
|
|
108,935 |
|
|
|
45,713 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period |
|
$ |
108,887 |
|
|
$ |
28,200 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
See Note 2 Restatement of Notes to Condensed Consolidated Financial Statements. |
The accompanying notes are an integral part of these unaudited
Condensed Consolidated Financial Statements.
6
MOVE, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Business
Move, Inc. and its subsidiaries (the Company) operate an online network of web sites for
real estate search, finance, moving and home enthusiasts and the network is an important resource
for consumers seeking the information and connections they need before, during and after a move.
The Companys flagship consumer web sites are Move.com, REALTOR.com® and Moving.com. The Company
also provides lead management software for real estate agents and brokers through its Top Producer®
business.
2. Restatement
During the three months ended September 30, 2009, the Company identified errors in stock-based
compensation expense. The Company restated its audited consolidated financial statements for fiscal
years 2008, 2007 and 2006 in its Form 10-K/A for the fiscal year ended December 31, 2008, restated
its unaudited condensed consolidated financial statements as of March 31, 2009 and for the three
month periods ended March 31, 2009 and 2008 in its Form 10-Q/A for the quarterly period ended March
31, 2009 and restated its unaudited condensed consolidated financial statements as of June 30, 2009
and for the three and six month periods ended June 30, 2009 and 2008 in this Form 10-Q/A as
described below.
Since fiscal 2006, the Company has licensed software from a third party provider to automate
the administration of its employee equity programs and calculate its stock-based compensation
expense (the Software). During the three months ended September 30, 2009, the Company learned
that the Software contained an error in how it calculated stock-based compensation expense and that
the Software provider had a new version of the Software that was designed to correct this error.
The Company upgraded to the new version of the Software and identified differences in the
stock-based compensation expense of prior periods. After reviewing such differences, the Company
concluded that there was an error in its accounting for stock-based compensation expense. The
prior version of the Software incorrectly calculated stock-based compensation expense by continuing
to apply a weighted average forfeiture rate to the vested portion of stock option awards until the
grants final vest date, rather than reflecting actual forfeitures as awards vested, resulting in
an understatement of stock-based compensation expense in certain periods prior to the grants final
vest date. Thus, the accounting error relates to the timing of estimated stock-based compensation
expense recognition. As stock-based compensation expense is a non-cash item, there is no impact to
net cash provided by operations in any period.
As a result, the Company has restated the accompanying unaudited condensed consolidated
financial statements as of June 30, 2009 and for the three and six months ended June 30, 2009 and
2008 to reflect the restatement of stock-based compensation expense. The Company recorded a $0.1
million and $0.5 million decrease in stock based compensation expense for the three and six months
ended June 30, 2009, respectively, and a $0.7 million and $1.5 million increase in stock based
compensation expense for the three and six months ended June 30, 2008, respectively, from amounts
previously reported. The Condensed Consolidated Balance Sheet also reflects the cumulative
restatement of adjustments made as of June 30, 2009.
The following tables present the effect of the restatement adjustments by financial statement
line item for the Condensed Consolidated Balance Sheet as of June 30, 2009 and the Condensed
Consolidated Statements of Operations for the three and six months ended June 30, 2009 and 2008 and
the Condensed Consolidated Statement of Cash Flows for the six months ended June 30, 2009 and 2008.
In the Condensed Consolidated Balance Sheet, the effect of the adjustments on Additional
paid-in capital and Accumulated deficit as of June 30, 2009 was as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
As Previously |
|
|
|
|
|
|
Reported |
|
Adjustment |
|
As Restated |
Additional paid in capital |
|
$ |
2,101,441 |
|
|
$ |
3,685 |
|
|
$ |
2,105,126 |
|
Accumulated deficit |
|
$ |
(2,012,507 |
) |
|
$ |
(3,685 |
) |
|
$ |
(2,016,192 |
) |
7
In the Condensed Consolidated Statement of Operations, the effect of the adjustments for the
three and six months ended June 30, 2009 and 2008 was as follows (in thousands, except per share
amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
|
As Previously |
|
|
|
|
|
|
|
|
|
|
As Previously |
|
|
|
|
|
|
|
|
|
Reported |
|
|
Adjustment |
|
|
As Restated |
|
|
Reported |
|
|
Adjustment |
|
|
As Restated |
|
Revenue |
|
$ |
54,637 |
|
|
$ |
|
|
|
$ |
54,637 |
|
|
$ |
61,437 |
|
|
$ |
|
|
|
$ |
61,437 |
|
Cost of revenue |
|
|
12,804 |
|
|
|
|
|
|
|
12,804 |
|
|
|
11,214 |
|
|
|
|
|
|
|
11,214 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
41,833 |
|
|
|
|
|
|
|
41,833 |
|
|
|
50,223 |
|
|
|
|
|
|
|
50,223 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
|
21,387 |
|
|
|
|
|
|
|
21,387 |
|
|
|
23,140 |
|
|
|
|
|
|
|
23,140 |
|
Product and web site development |
|
|
6,425 |
|
|
|
|
|
|
|
6,425 |
|
|
|
6,802 |
|
|
|
|
|
|
|
6,802 |
|
General and administrative |
|
|
11,465 |
|
|
|
(101 |
) |
|
|
11,364 |
|
|
|
19,433 |
|
|
|
744 |
|
|
|
20,177 |
|
Amortization of intangible assets |
|
|
108 |
|
|
|
|
|
|
|
108 |
|
|
|
197 |
|
|
|
|
|
|
|
197 |
|
Litigation settlement |
|
|
975 |
|
|
|
|
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
40,360 |
|
|
|
(101 |
) |
|
|
40,259 |
|
|
|
49,572 |
|
|
|
744 |
|
|
|
50,316 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) from
continuing operations |
|
|
1,473 |
|
|
|
101 |
|
|
|
1,574 |
|
|
|
651 |
|
|
|
(744 |
) |
|
|
(93 |
) |
Interest income, net |
|
|
314 |
|
|
|
|
|
|
|
314 |
|
|
|
1,521 |
|
|
|
|
|
|
|
1,521 |
|
Other income, net |
|
|
386 |
|
|
|
|
|
|
|
386 |
|
|
|
109 |
|
|
|
|
|
|
|
109 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before income taxes |
|
|
2,173 |
|
|
|
101 |
|
|
|
2,274 |
|
|
|
2,281 |
|
|
|
(744 |
) |
|
|
1,537 |
|
Provision for income taxes |
|
|
81 |
|
|
|
|
|
|
|
81 |
|
|
|
162 |
|
|
|
|
|
|
|
162 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations |
|
|
2,092 |
|
|
|
101 |
|
|
|
2,193 |
|
|
|
2,119 |
|
|
|
(744 |
) |
|
|
1,375 |
|
Income (loss) from discontinued
operations |
|
|
107 |
|
|
|
|
|
|
|
107 |
|
|
|
(3,076 |
) |
|
|
|
|
|
|
(3,076 |
) |
Gain on disposition of
discontinued operations |
|
|
2,303 |
|
|
|
|
|
|
|
2,303 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
4,502 |
|
|
|
101 |
|
|
|
4,603 |
|
|
|
(957 |
) |
|
|
(744 |
) |
|
|
(1,701 |
) |
Convertible preferred stock
dividend and related accretion |
|
|
(1,307 |
) |
|
|
|
|
|
|
(1,307 |
) |
|
|
(1,272 |
) |
|
|
|
|
|
|
(1,272 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to
common stockholders |
|
$ |
3,195 |
|
|
$ |
101 |
|
|
$ |
3,296 |
|
|
$ |
(2,229 |
) |
|
$ |
(744 |
) |
|
$ |
(2,973 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic income (loss) per share
applicable to common
stockholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
0.01 |
|
|
$ |
|
|
|
$ |
0.01 |
|
|
$ |
0.01 |
|
|
$ |
(0.01 |
) |
|
$ |
(0.00 |
) |
Discontinued operations |
|
|
0.02 |
|
|
|
|
|
|
|
0.02 |
|
|
|
(0.02 |
) |
|
|
|
|
|
|
(0.02 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per
share applicable to common
stockholders |
|
$ |
0.02 |
|
|
$ |
|
|
|
$ |
0.02 |
|
|
$ |
(0.01 |
) |
|
$ |
(0.01 |
) |
|
$ |
(0.02 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted income (loss) per share
applicable to common
stockholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
0.01 |
|
|
$ |
|
|
|
$ |
0.01 |
|
|
$ |
0.01 |
|
|
$ |
(0.01 |
) |
|
$ |
(0.00 |
) |
Discontinued operations |
|
|
0.02 |
|
|
|
|
|
|
|
0.02 |
|
|
|
(0.02 |
) |
|
|
|
|
|
|
(0.02 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per
share applicable to common
stockholders |
|
$ |
0.02 |
|
|
$ |
|
|
|
$ |
0.02 |
|
|
$ |
(0.01 |
) |
|
$ |
(0.01 |
) |
|
$ |
(0.02 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
|
As Previously |
|
|
|
|
|
|
|
|
|
|
As Previously |
|
|
|
|
|
|
|
|
|
Reported |
|
|
Adjustment |
|
|
As Restated |
|
|
Reported |
|
|
Adjustment |
|
|
As Restated |
|
Revenue |
|
$ |
109,505 |
|
|
$ |
|
|
|
$ |
109,505 |
|
|
$ |
123,379 |
|
|
$ |
|
|
|
$ |
123,379 |
|
Cost of revenue |
|
|
25,451 |
|
|
|
|
|
|
|
25,451 |
|
|
|
22,649 |
|
|
|
|
|
|
|
22,649 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
84,054 |
|
|
|
|
|
|
|
84,054 |
|
|
|
100,730 |
|
|
|
|
|
|
|
100,730 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
|
42,149 |
|
|
|
|
|
|
|
42,149 |
|
|
|
47,266 |
|
|
|
|
|
|
|
47,266 |
|
Product and web site development |
|
|
12,808 |
|
|
|
|
|
|
|
12,808 |
|
|
|
13,689 |
|
|
|
|
|
|
|
13,689 |
|
General and administrative |
|
|
35,487 |
|
|
|
(486 |
) |
|
|
35,001 |
|
|
|
41,604 |
|
|
|
1,520 |
|
|
|
43,124 |
|
Amortization of intangible assets |
|
|
259 |
|
|
|
|
|
|
|
259 |
|
|
|
394 |
|
|
|
|
|
|
|
394 |
|
Litigation settlement |
|
|
975 |
|
|
|
|
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
91,678 |
|
|
|
(486 |
) |
|
|
91,192 |
|
|
|
102,953 |
|
|
|
1,520 |
|
|
|
104,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) from
continuing operations |
|
|
(7,624 |
) |
|
|
486 |
|
|
|
(7,138 |
) |
|
|
(2,223 |
) |
|
|
(1,520 |
) |
|
|
(3,743 |
) |
Interest income, net |
|
|
449 |
|
|
|
|
|
|
|
449 |
|
|
|
3,578 |
|
|
|
|
|
|
|
3,578 |
|
Other income, net |
|
|
491 |
|
|
|
|
|
|
|
491 |
|
|
|
180 |
|
|
|
|
|
|
|
180 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before income taxes |
|
|
(6,684 |
) |
|
|
486 |
|
|
|
(6,198 |
) |
|
|
1,535 |
|
|
|
(1,520 |
) |
|
|
15 |
|
Provision for income taxes |
|
|
177 |
|
|
|
|
|
|
|
177 |
|
|
|
203 |
|
|
|
|
|
|
|
203 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations |
|
|
(6,861 |
) |
|
|
486 |
|
|
|
(6,375 |
) |
|
|
1,332 |
|
|
|
(1,520 |
) |
|
|
(188 |
) |
Loss from discontinued operations |
|
|
(249 |
) |
|
|
|
|
|
|
(249 |
) |
|
|
(5,650 |
) |
|
|
|
|
|
|
(5,650 |
) |
Gain on disposition of
discontinued operations |
|
|
2,303 |
|
|
|
|
|
|
|
2,303 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(4,807 |
) |
|
|
486 |
|
|
|
(4,321 |
) |
|
|
(4,318 |
) |
|
|
(1,520 |
) |
|
|
(5,838 |
) |
Convertible preferred stock
dividend and related accretion |
|
|
(2,605 |
) |
|
|
|
|
|
|
(2,605 |
) |
|
|
(2,537 |
) |
|
|
|
|
|
|
(2,537 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to
common stockholders |
|
$ |
(7,412 |
) |
|
$ |
486 |
|
|
$ |
(6,926 |
) |
|
$ |
(6,855 |
) |
|
$ |
(1,520 |
) |
|
$ |
(8,375 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted income (loss)
per share applicable to common
stockholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
(0.06 |
) |
|
$ |
|
|
|
$ |
(0.06 |
) |
|
$ |
(0.01 |
) |
|
$ |
(0.01 |
) |
|
$ |
(0.02 |
) |
Discontinued operations |
|
|
0.01 |
|
|
|
|
|
|
|
0.01 |
|
|
|
(0.04 |
) |
|
|
|
|
|
|
(0.04 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income
(loss) per share applicable to
common stockholders |
|
$ |
(0.05 |
) |
|
$ |
0.00 |
|
|
$ |
(0.05 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.01 |
) |
|
$ |
(0.06 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9
In the Condensed Consolidated Statement of Cash Flows, the effect of the adjustment on Income
(loss) from continuing operations and Stock-based compensation and charges for the six months ended
June 30, 2009 and 2008 was as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended June 30, 2009 |
|
|
As Previously |
|
|
|
|
|
|
Reported |
|
Adjustment |
|
As Restated |
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
$ |
(6,861 |
) |
|
$ |
486 |
|
|
$ |
(6,375 |
) |
Adjustments to reconcile net loss from continuing
operations to net cash provided by operating
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Stock based compensation and charges |
|
$ |
12,411 |
|
|
$ |
(486 |
) |
|
$ |
11,925 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended June 30, 2008 |
|
|
As Previously |
|
|
|
|
|
|
Reported |
|
Adjustment |
|
As Restated |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations |
|
$ |
1,332 |
|
|
$ |
(1,520 |
) |
|
$ |
(188 |
) |
Adjustments to reconcile net income (loss) to net
cash provided by operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Stock based compensation and charges |
|
$ |
5,503 |
|
|
$ |
1,520 |
|
|
$ |
7,023 |
|
3. Basis of Presentation
The Companys unaudited Condensed Consolidated Financial Statements have been prepared in
accordance with accounting principles generally accepted in the United States of America (GAAP),
including those for interim financial information and with the instructions for Form 10-Q and
Article 10 of Regulation S-X issued by the Securities and Exchange Commission (SEC). Accordingly,
they do not include all of the information and note disclosures required by GAAP for complete
financial statements. These statements are unaudited and, in the opinion of management, all
adjustments (which include only normal recurring adjustments) considered necessary for a fair
presentation have been included. These unaudited Condensed Consolidated Financial Statements should
be read in conjunction with the audited financial statements and notes thereto included in the
Companys Form 10-K/A for the year ended December 31, 2008, which was filed with the SEC on
November 9, 2009. The results of operations for these interim periods are not necessarily
indicative of the operating results for a full year.
4. Significant Accounting Policies
In December 2007, the Financial Accounting Standards Board (FASB) issued Statement of
Financial Accounting Standards (SFAS) No. 141(R), Business Combinations (SFAS 141(R)), and
SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements (SFAS No. 160).
SFAS No. 141(R) requires an acquirer to measure the identifiable assets acquired, the liabilities
assumed and any noncontrolling interest in the acquiree at their fair values on the acquisition
date, with goodwill being the excess value over the net identifiable assets acquired. SFAS No. 160
clarifies that a noncontrolling interest in a subsidiary should be reported as equity in the
consolidated financial statements. The calculation of earnings per share will continue to be based
on income amounts attributable to the parent. SFAS No. 141(R) and SFAS No. 160 are effective for
financial statements issued for fiscal years beginning after December 15, 2008. The Company adopted
SFAS No. 141(R) and SFAS No. 160 as of January 1, 2009 which did not have a material effect on the
Companys consolidated financial position or results of operations.
In April 2008, the FASB issued FASB Staff Position (FSP) FAS No. 142-3, Determination of
the Useful Life of Intangible Assets (FSP FAS No. 142-3). FSP FAS No. 142-3 amends the factors
that should be considered in developing renewal or extension assumptions used to determine the
useful life of a recognized intangible asset under SFAS No. 142, Goodwill and Other Intangible
Assets (SFAS No. 142). The intent of FSP FAS No. 142-3 is to improve the consistency between
the useful life of a recognized intangible asset under SFAS No. 142 and the period of expected cash
flows used to measure the fair value of the assets under SFAS No. 141(R), and other guidance under
GAAP. FSP FAS No. 142-3 is effective for financial statements issued for fiscal years beginning
after December 15, 2008. The Company adopted FSP FAS No. 142-3 as of January 1, 2009 which did not
have a material effect on the Companys consolidated financial position or results of operations.
In June 2008, the FASBs Emerging Issues Task Force (EITF) reached a consensus on EITF No.
07-5, Determining Whether an Instrument (or Embedded Feature) is Indexed to an Entitys Own Stock
(EITF 07-5). EITF 07-5 would require the entity to account for embedded conversion options as
derivatives and record them on the balance sheet as a liability with subsequent fair value changes
recorded in the income statement. EITF 07-5 is effective for financial statements issued for
fiscal years beginning after December 15, 2008. The Company adopted EITF 07-5 as of January 1,
2009 which did not have a material effect on the Companys consolidated financial position or
results of operations.
10
In April 2009, the FASB issued FSP FAS 115-2 and FAS 124-2,Recognition and
Presentation of Other-Than-Temporary Impairment (FSP 115-2/124-2). FSP 115-2/124-2 amends the
requirements for the recognition and measurement of other-than-temporary impairments for debt
securities by modifying the pre-existing intent and ability indicator. Under FSP 115-2/124-2, an
other-than-temporary impairment is triggered when there is intent to sell the security, it is more
likely than not that the security will be required to be sold before recovery, or the security is
not expected to recover the entire amortized cost basis of the security. Additionally, FSP
115-2/124-2 changes the presentation of other-than-temporary impairment in the income statement for
those impairments involving credit losses. The credit loss component will be recognized in earnings
and the remainder of the impairment will be recorded in other comprehensive income. The Company
adopted FSP 115-2/124-2 as of April 1, 2009 which did not have a material effect on the Companys
consolidated financial position or results of operations.
5. Discontinued Operations
In the fourth quarter of 2007, the Company decided to divest its Homeplans business, which had
been reported as part of its Consumer Media segment. On April 15, 2008, the Company closed the sale
of the business for a sales price of $1.0 million in cash. The transaction did not result in any
significant gain or loss on disposition.
In the second quarter of 2008, the Company decided to divest its Welcome Wagon® business,
which had been reported as part of its Consumer Media segment. On June 22, 2009, the Company
closed the sale of the business for a sales price of $2.0 million. The Company received $1.0
million in cash and a $1.0 million promissory note. The principal balance of the note is due on or
before October 1, 2010. The outstanding principal bears an interest rate of 7% per annum, with
quarterly interest payments due commencing on October 1, 2009. The transaction resulted in a gain
on disposition of discontinued operations of $1.2 million for the three and six months ended June
30, 2009.
As part of the sale in 2002 of the Companys ConsumerInfo division to Experian Holdings, Inc.
(Experian), $10.0 million of the purchase price was put in escrow to secure the Companys
indemnification obligations (the Indemnity Escrow). Under the terms of the stock purchase
agreement, the Companys maximum potential liability for claims by Experian was capped at $29.25
million less the balance in the Indemnity Escrow, which amount was approximately $8.5 million.
During 2008, Experian demanded $29.25 million in indemnity payments. The Company denied liability
and a bifurcated arbitration proceeding ensued to resolve the dispute. Subsequent to the
completion of the first phase of the arbitration proceedings, on April 20, 2009, the parties
settled the dispute and entered into a full release of all claims under which Experian received
$7.4 million from the Indemnity Escrow and the Company received the balance of the escrow of $1.1
million, which is included in gain on disposition of discontinued operations for the three and six
months ended June 30, 2009.
Pursuant to SFAS No. 144, the Companys Consolidated Financial Statements for all periods
presented reflects the reclassification of its Homeplans and Welcome Wagon® divisions as
discontinued operations. Accordingly, the revenue, costs and expenses, and cash flows of these
divisions have been excluded from the respective captions in the Condensed Consolidated Statements
of Operations and Condensed Consolidated Statements of Cash Flows and have been reported as Income
(loss) from discontinued operations, net of applicable income taxes of zero; and as Net cash used
in discontinued operating activities and Net cash provided by discontinued investing activities.
Total revenue and income (loss) from discontinued operations are reflected below (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Revenue |
|
$ |
4,094 |
|
|
$ |
7,842 |
|
|
$ |
9,609 |
|
|
$ |
17,553 |
|
Total operating expenses |
|
|
4,003 |
|
|
|
10,918 |
|
|
|
8,813 |
|
|
|
23,077 |
|
Impairment of long-lived assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
126 |
|
Restructuring charges |
|
|
(16 |
) |
|
|
|
|
|
|
1,045 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from discontinued operations |
|
$ |
107 |
|
|
$ |
(3,076 |
) |
|
$ |
(249 |
) |
|
$ |
(5,650 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on disposition of discontinued operations |
|
$ |
2,303 |
|
|
$ |
|
|
|
$ |
2,303 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6. Restructuring Charges
In the third and fourth quarters of 2008, the Companys Board of Directors approved
restructuring and integration plans with the objective of eliminating duplicate resources and
redundancies and implementing a new operating structure to lower total operating expenses. As a
result of these plans, the Company incurred a restructuring charge from continuing operations of
$4.4 million for the year ended December 31, 2008. Included in this charge were lease obligations
and related charges of $3.0 million for the consolidation of the Companys operations in Westlake
Village, California and the vacancy of a portion of the leased facility. In addition, the charge
included severance and other payroll-related expenses of $1.4 million associated with the reduction
in workforce of 74 employees whose positions with the Company were eliminated. These workforce
reductions affected 27 employees in cost of revenue positions, 31 employees in sales and marketing,
5 employees in product and web site development and 11 employees in general and administrative
positions. The Company incurred a restructuring charge from discontinued operations of $1.6 million associated with severance and other
payroll-related expenses for 199
11
employees who were terminated.
During the six months ended June 30, 2009, the Company incurred an additional restructuring
charge from discontinued operations of $1.1 million associated with lease termination charges and
additional employee termination costs.
A summary of activity for the three and six months ended June 30, 2009 related to these
restructuring plans is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease |
|
|
|
|
|
|
|
|
|
|
Obligations |
|
|
|
|
|
|
Employee |
|
|
and |
|
|
|
|
|
|
Termination |
|
|
Related |
|
|
|
|
|
|
Benefits |
|
|
Charges |
|
|
Total |
|
Accrued restructuring at December 31, 2008 |
|
$ |
1,404 |
|
|
$ |
2,144 |
|
|
$ |
3,548 |
|
Restructuring charges incurred from discontinued operations |
|
|
61 |
|
|
|
1,000 |
|
|
|
1,061 |
|
Change in estimates |
|
|
(42 |
) |
|
|
|
|
|
|
(42 |
) |
Payments |
|
|
(1,365 |
) |
|
|
(469 |
) |
|
|
(1,834 |
) |
|
|
|
|
|
|
|
|
|
|
Accrued restructuring at March 31, 2009 |
|
$ |
58 |
|
|
$ |
2,675 |
|
|
$ |
2,733 |
|
Change in estimates |
|
|
(23 |
) |
|
|
|
|
|
|
(23 |
) |
Payments |
|
|
(35 |
) |
|
|
(1,478 |
) |
|
|
(1,513 |
) |
|
|
|
|
|
|
|
|
|
|
Accrued restructuring at June 30, 2009 |
|
$ |
|
|
|
$ |
1,197 |
|
|
$ |
1,197 |
|
|
|
|
|
|
|
|
|
|
|
Substantially all of the remaining restructuring liabilities at June 30, 2009 will be paid in
2009.
7. Short-term and Long-term Investments
The following table summarizes the Companys short-term and long-term investments (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
|
|
|
|
Net |
|
|
|
|
|
|
|
|
|
|
Net |
|
|
|
|
|
|
Adjusted |
|
|
Unrealized |
|
|
Carrying |
|
|
Adjusted |
|
|
Unrealized |
|
|
Carrying |
|
|
|
Cost |
|
|
Gain/(Loss) |
|
|
Value |
|
|
Cost |
|
|
Gain/(Loss) |
|
|
Value |
|
Long-term investments: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate auction rate securities |
|
$ |
129,400 |
|
|
$ |
(17,600 |
) |
|
$ |
111,800 |
|
|
$ |
129,400 |
|
|
$ |
(17,600 |
) |
|
$ |
111,800 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term investments |
|
$ |
129,400 |
|
|
$ |
(17,600 |
) |
|
$ |
111,800 |
|
|
$ |
129,400 |
|
|
$ |
(17,600 |
) |
|
$ |
111,800 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Companys long-term investments consist primarily of high-grade (AAA rated) student loan
auction rate securities issued by student loan funding organizations, which loans are 97%
guaranteed under FFELP (Federal Family Education Loan Program). These auction rate securities
(ARS) were intended to provide liquidity via an auction process that resets the interest rate,
generally every 28 days, allowing investors to either roll over their holdings or sell them at par.
All purchases of these auction rate securities were in compliance with the Companys investment
policy. In February 2008, auctions for the Companys investments in these securities failed to
settle on their respective settlement dates. Consequently, the investments are not currently
liquid and the Company will not be able to access these funds until a future auction of these
investments is successful, the securities mature or a buyer is found outside of the auction
process. Maturity dates for these ARS investments range from 2030 to 2047 with principal
distributions occurring on certain securities prior to maturity. The Company currently has the
ability and the intent to hold these ARS investments until their fair value recovers, until they
reach maturity or until they can be sold in a market that facilitates orderly transactions. As of
June 30, 2009, the Company has classified $111.8 million of the ARS investment balance as Long-term
Investments because of the Companys inability to determine when these investments in ARS will
become liquid. The Company also modified its investment strategy and increased its investments in
more liquid money market and treasury bill investments. Citigroup Global Markets, Inc. (CGMI) was
the Companys investment advisor in connection with the investment in the ARS. On September 17,
2008, the Company commenced arbitration against CGMI before the Financial Industry Regulatory
Authority (FINRA).
The Company reviews its potential investment impairments in accordance with SFAS No. 115,
Accounting for Certain Investments in Debt and Equity Securities, FSP 115-2/124-2 and the related
guidance issued by the FASB and SEC in order to determine the classification of the impairment as
temporary or other-than-temporary. A temporary impairment charge results in an unrealized loss
being recorded in the other comprehensive income (loss) component of stockholders equity. An
other-than-temporary impairment charge is recorded as a realized loss in the Condensed Consolidated
Statement of Operations and reduces net income (loss) for the applicable accounting period if the
loss is due to the credit loss component with the remainder of the other-than-temporary impairment
being recorded in other comprehensive income. An other-than-temporary impairment is triggered when
there is intent to sell the security, it is more likely than not that the security will be required
to be sold before recovery, or the security is not expected to recover the entire amortized cost
basis of the security. The Company determined that any impairment to its ARS investments would be
temporary and, as such, records any unrealized loss to other comprehensive income.
12
The Companys ARS investments were measured at fair value as of June 30, 2009 and 2008,
respectively, and an unrealized loss of $8.4 million for the six months ended June 30, 2008 was
included in other comprehensive income. See Note 8 Fair Value Measurements for additional
information concerning fair value measurement of the Companys ARS investments. As of June 30,
2009, the unrealized losses associated with the ARS investments have existed for longer than one
year.
8. Fair Value Measurements
On January 1, 2008, the Company adopted the methods of fair value as described in SFAS No.
157, Fair Value Measurement (SFAS 157) which refines the definition of fair value, provides a
framework for measuring fair value and expands disclosures about fair value measurements. SFAS 157
defines fair value as the price that would be received to sell an asset or paid to transfer a
liability (an exit price) in an orderly transaction between market participants at the reporting
date. The statement establishes consistency and comparability by providing a fair value hierarchy
that prioritizes the inputs to valuation techniques into three broad levels, which are described
below:
|
|
|
Level 1 inputs are quoted market prices in active markets for
identical assets or liabilities (these are observable market inputs). |
|
|
|
|
Level 2 inputs are inputs other than quoted prices included within
Level 1 that are observable for the asset or liability (includes
quoted market prices for similar assets or identical or similar assets
in markets in which there are few transactions, prices that are not
current or vary substantially). |
|
|
|
|
Level 3 inputs are unobservable inputs that reflect the entitys own
assumptions in pricing the asset or liability (used when little or no
market data is available). |
Financial assets and liabilities included in our financial statements and measured at fair
value are classified based on the valuation technique level in the table below (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurement at June 30, 2009 |
|
|
|
Total |
|
|
Level 1 |
|
|
Level 2 |
|
|
Level 3 |
|
Description: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents (1) |
|
$ |
108,887 |
|
|
$ |
108,887 |
|
|
$ |
|
|
|
$ |
|
|
Long-term investments (2) |
|
|
111,800 |
|
|
|
|
|
|
|
|
|
|
|
111,800 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets at fair value |
|
$ |
220,687 |
|
|
$ |
108,887 |
|
|
$ |
|
|
|
$ |
111,800 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Embedded derivative liability (3) |
|
$ |
64 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
64 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Cash and cash equivalents consist primarily of treasury bills with original maturity
dates of three months or less and money market funds for which we determine fair value
through quoted market prices. |
|
(2) |
|
Long-term investments consist of student loan, FFELP-backed, ARS issued by student loan
funding organizations. Typically the fair value of ARS investments approximates par value
due to the frequent resets through the auction process. While the Company continues to earn
interest on its ARS investments at the maximum contractual rate, these investments are not
currently trading and therefore do not have a readily determinable market value. The Company
used a discounted cash flow model to determine the estimated fair value of its investment in
ARS as of June 30, 2009. The assumptions used in preparing the discounted cash flow model
includes estimates for interest rates, timing and amount of cash flows and expected holding
period of the ARS. Based on this assessment of fair value, the Company determined there was
no change in the fair value of its ARS investments for the three and six month period ended
June 30, 2009. |
|
(3) |
|
The embedded derivative liability, which is included within other liabilities,
represents the value associated with the right of the holders of Series B Preferred Stock to
receive additional guaranteed dividends in the event of a change of control. There is no
current observable market for this type of derivative and, as such, we determined the value
of the embedded derivative based on a lattice model using inputs such as an assumed
corporate bond borrowing rate, market price of the Companys stock, probability of a change
in control, and volatility. |
The following table provides a reconciliation of the beginning and ending balances for the
major class of assets and liabilities measured at fair value using significant unobservable inputs
(Level 3) (in thousands):
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Embedded |
|
|
|
Long-term |
|
|
Derivative |
|
|
|
Investments |
|
|
Liability |
|
Balance at January 1, 2009 |
|
$ |
111,800 |
|
|
$ |
600 |
|
Transfers in and /or out of Level 3 |
|
|
|
|
|
|
|
|
Total gains/losses included in earnings |
|
|
|
|
|
|
(90 |
) |
Total losses included in other comprehensive income |
|
|
|
|
|
|
|
|
Purchases, sales, issuances and settlements, net |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at March 31, 2009 |
|
$ |
111,800 |
|
|
$ |
510 |
|
Transfers in and /or out of Level 3 |
|
|
|
|
|
|
|
|
Total gains/losses included in earnings |
|
|
|
|
|
|
(446 |
) |
Total losses included in other comprehensive income |
|
|
|
|
|
|
|
|
Purchases, sales, issuances and settlements, net |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at June 30, 2009 |
|
$ |
111,800 |
|
|
$ |
64 |
|
|
|
|
|
|
|
|
9. Revolving Line of Credit
On May 8, 2008, the Company entered into a revolving line of credit providing for borrowings
of up to $64.8 million with CGMI for a term of one year. On May 6, 2009, the line of credit was
extended to May 21, 2009.
Effective May 21, 2009, the Company entered into an amendment to its revolving line of credit
facility with CGMI. The amendment extended the date by which the Company is required to repay
outstanding principal advances to May 20, 2010 and revised the interest rate applicable to such
advances. The per annum interest rate was revised to a rate equal to the lesser of (a) the Open
Federal Funds Rate plus 3.8% or (b) CGMIs and its affiliates proprietary CGM Working Capital
Rate. As of June 30, 2009, the interest rate was 2.32%.
The available borrowings may not exceed 50% of the par value of the Companys ARS investment
balances and could be limited further if the quoted market value of these securities drops below
70% of par value. As of June 30, 2009, there was $64.7 million in outstanding borrowings against
this line of credit.
10. Goodwill and Other Intangible Assets
Goodwill by segment is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Real Estate Services |
|
$ |
12,594 |
|
|
$ |
12,594 |
|
Consumer Media |
|
|
4,375 |
|
|
|
4,375 |
|
|
|
|
|
|
|
|
Total |
|
$ |
16,969 |
|
|
$ |
16,969 |
|
|
|
|
|
|
|
|
The Company has both indefinite and definite-lived intangibles. Indefinite-lived intangibles
consist of $2.0 million of trade names and trademarks acquired during the year ended December 31,
2006. Definite-lived intangible assets consist of certain trade names, trademarks, brand names,
purchased technology, and other miscellaneous agreements entered into in connection with business
combinations and are amortized over expected periods of benefits. There are no expected residual
values related to these intangible assets. Intangible assets, by category, are as follows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
Gross |
|
|
Accumulated |
|
|
Gross |
|
|
Accumulated |
|
|
|
Amount |
|
|
Amortization |
|
|
Amount |
|
|
Amortization |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade names,
trademarks, brand
names, and domain
Names |
|
$ |
2,530 |
|
|
$ |
515 |
|
|
$ |
2,530 |
|
|
$ |
514 |
|
Purchased technology |
|
|
1,400 |
|
|
|
667 |
|
|
|
1,400 |
|
|
|
566 |
|
NAR operating agreement |
|
|
1,578 |
|
|
|
1,127 |
|
|
|
1,578 |
|
|
|
1,052 |
|
Other |
|
|
1,450 |
|
|
|
975 |
|
|
|
1,450 |
|
|
|
893 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
6,958 |
|
|
$ |
3,284 |
|
|
$ |
6,958 |
|
|
$ |
3,025 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense, excluding discontinued operations, for intangible assets was $0.1
million and $0.3 million for the three and six months ended June 30, 2009, respectively, and $0.2
million and $0.4 million for the three and six months ended June 30, 2008, respectively.
Amortization expense for the next five years is estimated to be as follows (in thousands):
14
|
|
|
|
|
Years Ended December 31, |
|
Amount |
|
|
|
|
|
2009 (remaining 6 months) |
|
$ |
214 |
|
2010 |
|
|
417 |
|
2011 |
|
|
416 |
|
2012 |
|
|
341 |
|
2013 |
|
|
99 |
|
11. Stock-Based Compensation and Charges
As noted in Note 2, the Company restated its audited consolidated financial statements for
fiscal years 2008, 2007 and 2006 in its Form 10-K/A for the fiscal year ended December 31, 2008,
restated its unaudited condensed consolidated financial statements as of March 31, 2009 and for the
three month periods ended March 31, 2009 and 2008 in its Form 10-Q/A for the quarterly period ended
March 31, 2009 and restated its unaudited condensed consolidated financial statements as of June
30, 2009 and for the three and six month periods ended June 30, 2009 and 2008 in this Form 10-Q/A
as it relates to its accounting for stock based compensation expense.
The Company accounts for stock issued to non-employees in accordance with the provisions of
SFAS No. 123 Accounting for Stock-based Compensation (SFAS No. 123) and EITF No. 96-18
Accounting for Equity Instruments That Are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods and Services.
The Company grants restricted stock awards to members of its Board of Directors as
compensation. During the six months ended June 30, 2009, the Company granted 60,000 shares of
restricted stock to the members of the ad hoc Executive Committee of its Board of Directors. Half
of these shares vested on the grant date and half of the shares will vest, subject to certain terms
and restrictions, one year from the grant date. Additionally, during the six months ended June 30,
2009, the Company granted 175,420 shares of restricted stock to all non-employee members of its
Board of Directors (except any director who is entitled to a seat on the Board of Directors on a
contractual basis). These shares, subject to certain terms and restrictions, will vest on the
third anniversary of their issuance and the costs are being recognized over their respective
vesting period. There were 453,713 and 345,293 unvested shares of restricted stock issued to
members of the Companys Board of Directors as of June 30, 2009 and 2008, respectively. Total cost
recognized was $117,000 and $12,000 for the three months ended June 30, 2009 and 2008,
respectively, and $265,000 and $108,000 for the six months ended June 30, 2009 and 2008,
respectively. Total cost recognized for the three and six months ended June 30, 2008 are net of
approximately $85,000 of costs reversed due to the forfeiture of restricted shares during the
period. These costs are included in stock-based compensation and charges.
During the six months ended June 30, 2009, the Company issued 1,800,000 shares of restricted
stock to its new Chief Executive Officer as part of his employment agreement with the Company.
These shares had a fair value of $2.7 million, with 700,000 shares vested immediately, and, subject
to certain terms and restrictions, 500,000 shares vesting one year from the grant date and 600,000
shares vesting two years from the grant date. The fair value of the first 700,000 shares was
recognized as stock-based compensation immediately, with the fair value of the remaining shares
being amortized over the respective vesting period. The officer returned 700,000 shares of common
stock, with a fair value of $1.1 million, to reimburse the Company for the officers share of
income tax withholdings due as a result of this transaction. The $1.1 million payment to the
relevant taxing authorities is reflected as a financing activity within the Condensed Consolidated
Statements of Cash Flows. Total cost recognized during the three and six months ended June 30, 2009
was $0.3 million and $1.6 million, respectively, and is included in stock-based compensation and
charges.
During fiscal 2006 and 2007, the Board of Directors awarded performance-based restricted stock
units to certain of the Companys executive officers. Based on the original terms of the awards,
the officers were to earn shares of the Companys stock based on the Companys attainment of
certain performance goals relating to its revenues and operating income (as defined by the
Management Development and Compensation Committee of the Board of Directors) for the fiscal year
ending December 31, 2008. During the year ended December 31, 2007, the Management Development and
Compensation Committee of the Board of Directors approved modifications of the performance targets
and vesting periods of the original awards, reducing the original restricted stock units available
for vesting based on 2008 performance by 50% for each of the executives, and revising the financial
performance targets for 2008 based on current market conditions and the Companys expected
performance. The committee also established financial performance targets for 2009, which provided
the potential for executives to earn the remaining 50% of the restricted stock units previously
granted by the Companys meeting those performance goals.
As a result of the modification, pursuant to SFAS 123R, a new measurement date was
established. The modification was entered into because the 2006 grants required a three-year
projection of financial performance in a highly competitive and rapidly changing market and the
Management Development and Compensation Committee of the Board of Directors wanted to better
reflect the current strategy of the Company while adhering to the original goals of increased and
sustained performance. As a result, the likelihood of achieving the original targets was
improbable and previously recognized compensation under the award was reversed. Based on operating
results for the year ended December 31, 2008, the financial
15
performance targets were not achieved and, as a result, 2,027,000 restricted stock units were
forfeited as of December 31, 2008. In addition, the Company no longer believes the performance
goals established for 2009 are achievable, and there are no plans to modify those goals. As of
June 30, 2009, there were 777,500 restricted stock units outstanding at a fair value of $3.6
million.
During the six months ended June 30, 2009, the Board of Directors awarded 700,000 shares of
performance-based restricted stock units to its new Chief Executive Officer. These awards will be
earned based on the attainment of certain performance goals (as yet to be defined) relating to the
Companys revenues and EBITDA for the fiscal year ending December 31, 2011. The Company is unable
to assess the likelihood of achieving the targets since they have not yet been defined and
recognition of compensation for these units has therefore been deferred. As of June 30, 2009, the
fair value of these restricted stock units was $1.1 million.
The fair value of each option award is estimated on the date of grant using a Black-Scholes
option valuation model that uses the ranges of assumptions in the following table. Our computation
of expected volatility is based on a combination of historical and market-based implied volatility.
The expected term is based on the Companys weighted average vesting period combined with the
post-vesting holding period. The risk-free interest rates are based on U.S. Treasury zero-coupon
bonds for the periods in which the options were granted.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30, |
|
June 30, |
|
|
2009 |
|
2008 |
|
2009 |
|
2008 |
Risk-free interest rates |
|
|
2.02%-2.54 |
% |
|
|
3.03-3.41 |
% |
|
|
0.11%-2.54 |
% |
|
|
1.65%-3.41 |
% |
Expected term (in years) |
|
|
5.85 |
|
|
|
5.85 |
|
|
|
5.85 |
|
|
|
5.85 |
|
Dividend yield |
|
|
0 |
% |
|
|
0 |
% |
|
|
0 |
% |
|
|
0 |
% |
Expected volatility |
|
|
85 |
% |
|
|
65 |
% |
|
|
85 |
% |
|
|
65 |
% |
The Company periodically evaluates its forfeiture rates and updates the rates it uses in the
determination of its stock-based compensation expense. During the three and six months ended June
30, 2009 and 2008, respectively, the Company updated the estimated forfeiture rates it uses in the
determination of its stock-based compensation expense; this change was a result of an assessment
that included an analysis of the actual number of equity awards that had been forfeited to date
compared to prior estimates and an evaluation of future estimated forfeitures. The impact of
changes to the forfeiture rates on non-cash compensation expense was immaterial.
During the six months ended June 30, 2009, the Company granted options to purchase 3,000,000
shares of the Companys common stock to its new Chief Executive Officer. The fair value of these
shares was $3.2 million. 750,000 shares were immediately vested with the remaining shares to vest
monthly over a period of three years beginning on the first anniversary of the grant date. As a
result, the Company recorded stock-based compensation of $0.7 million for the six months ended June
30, 2009.
During the six months ended June 30, 2009, the Company accelerated the vesting for two former
executive officers and extended the time to exercise for one of the former officers as part of
their separation agreements. As a result, the Company recorded additional stock-based compensation
expenses of $7.2 million for the six months ended June 30, 2009.
During the six months ended June 30, 2008, the Company modified the vesting and extended the
time to exercise for several former executive employees as part of their separation agreements. As
a result of these modifications, the Company recorded additional stock-based compensation expense
of $0.8 million for the six months ended June 30, 2008.
The following chart summarizes the stock-based compensation and charges that have been
included in the following captions for each of the periods presented (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
Cost of revenue |
|
$ |
46 |
|
|
$ |
31 |
|
|
$ |
83 |
|
|
$ |
69 |
|
Sales and marketing |
|
|
604 |
|
|
|
103 |
|
|
|
877 |
|
|
|
209 |
|
Product and web site development |
|
|
187 |
|
|
|
84 |
|
|
|
327 |
|
|
|
269 |
|
General and administrative |
|
|
451 |
|
|
|
2,534 |
|
|
|
10,638 |
|
|
|
6,476 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total from continuing operations |
|
|
1,288 |
|
|
|
2,752 |
|
|
|
11,925 |
|
|
|
7,023 |
|
Total from discontinued operations |
|
|
33 |
|
|
|
70 |
|
|
|
63 |
|
|
|
65 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation and charges |
|
$ |
1,321 |
|
|
$ |
2,822 |
|
|
$ |
11,988 |
|
|
$ |
7,088 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In addition to costs related to stock options, stock-based compensation and charges in general
and administrative includes costs related to the amortization of restricted stock grants for all
periods presented.
16
12. Net Income (Loss) Per Share
The following table sets forth the computation of basic and diluted net income (loss) per
share applicable to common stockholders for the periods indicated (in thousands, except per share
amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
Numerator: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations |
|
$ |
2,193 |
|
|
$ |
1,375 |
|
|
$ |
(6,375 |
) |
|
$ |
(188 |
) |
Income (loss) from discontinued operations |
|
|
2,410 |
|
|
|
(3,076 |
) |
|
|
2,054 |
|
|
|
(5,650 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
4,603 |
|
|
|
(1,701 |
) |
|
|
(4,321 |
) |
|
|
(5,838 |
) |
Convertible preferred stock dividend and related accretion |
|
|
(1,307 |
) |
|
|
(1,272 |
) |
|
|
(2,605 |
) |
|
|
(2,537 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common stockholders |
|
$ |
3,296 |
|
|
$ |
(2,973 |
) |
|
$ |
(6,926 |
) |
|
$ |
(8,375 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common stockholders from
continuing operations |
|
$ |
886 |
|
|
$ |
103 |
|
|
$ |
(8,980 |
) |
|
$ |
(2,725 |
) |
Net income (loss) applicable to common stockholders from
discontinued operations |
|
|
2,410 |
|
|
|
(3,076 |
) |
|
|
2,054 |
|
|
|
(5,650 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common stockholders |
|
$ |
3,296 |
|
|
$ |
(2,973 |
) |
|
$ |
(6,926 |
) |
|
$ |
(8,375 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average shares outstanding |
|
|
152,920 |
|
|
|
151,551 |
|
|
|
153,019 |
|
|
|
151,383 |
|
Add: dilutive effect of options, warrants and restricted stock |
|
|
3,632 |
|
|
|
6,741 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fully diluted weighted average shares outstanding |
|
|
156,552 |
|
|
|
158,292 |
|
|
|
153,019 |
|
|
|
151,383 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic income (loss) per share applicable to common stockholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
0.01 |
|
|
$ |
0.00 |
|
|
$ |
(0.06 |
) |
|
$ |
(0.02 |
) |
Discontinued operations |
|
|
0.02 |
|
|
|
(0.02 |
) |
|
|
0.01 |
|
|
|
(0.04 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
0.02 |
|
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.06 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted income (loss) per share applicable to common stockholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
$ |
0.01 |
|
|
$ |
0.00 |
|
|
$ |
(0.06 |
) |
|
$ |
(0.02 |
) |
Discontinued operations |
|
|
0.02 |
|
|
|
(0.02 |
) |
|
|
0.01 |
|
|
|
(0.04 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
0.02 |
|
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
$ |
(0.06 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Because their effects would be anti-dilutive for the periods presented, the above computation
of diluted income (loss) per share excludes stock options, warrants and restricted stock of
46,146,288 and 63,796,627 for the three and six months ended June 30, 2009, respectively, and
63,195,830 for the three and six months ended June 30, 2008.
13. Other Comprehensive Income (Loss)
The components of other comprehensive income (loss) are (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
|
(As restated) |
|
Net income (loss) |
|
$ |
4,603 |
|
|
$ |
(1,701 |
) |
|
$ |
(4,321 |
) |
|
$ |
(5,838 |
) |
Unrealized gain (loss) on marketable securities |
|
|
1 |
|
|
|
2 |
|
|
|
(3 |
) |
|
|
(3 |
) |
Unrealized loss on non-current auction rate securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,400 |
) |
Foreign currency translation |
|
|
57 |
|
|
|
11 |
|
|
|
10 |
|
|
|
(81 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss) |
|
$ |
4,661 |
|
|
$ |
(1,688 |
) |
|
$ |
(4,314 |
) |
|
$ |
(14,322 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
14. Related-party Transactions
The Company provided product development services to the National Association of Realtors
(NAR) and recognized $1.1 million and $2.0 million in revenues for the three and six months ended
June 30, 2009, respectively. The Company also makes payments to NAR required under its operating
agreement with NAR and under certain other advertising agreements. Total amounts paid under these
agreements were $0.4 million and $0.9 million for the three and six months ended June 30,
17
2009 and 2008, respectively.
15. Segment Information
Segment information is presented in accordance with SFAS No. 131, Disclosures about Segments
of an Enterprise and Related Information. This standard is based on a management approach, which
requires segmentation based upon the Companys internal organization and disclosure of revenue and
operating expenses based upon internal accounting methods. The Companys management evaluates
performance and allocates resources based on two segments consisting of Real Estate Services for
those products and services offered to industry professionals trying to reach new movers and manage
their relationships with them and Consumer Media for those products and services offered to other
advertisers who are trying to reach those consumers in the process of a move. This is consistent
with the data that is made available to our management to assess performance and make decisions.
In the second quarter of 2008, the Company decided to divest its Welcome Wagon® business, which had
been reported as part of its Consumer Media segment and, as a result, the operating results of this
business has been reclassified as discontinued operations for all periods presented. The sale of
the Welcome Wagon business was completed in the second quarter of 2009.
The expenses presented below for each of the two business segments include an allocation of
certain corporate expenses that are identifiable and benefit those segments and are allocated for
internal management reporting purposes. The unallocated expenses are those corporate overhead
expenses that are not directly attributable to a segment and include: corporate expenses, such as
finance, legal, executive, corporate brand marketing, certain corporate technology costs (including
internal business systems), and human resources; expenses associated with new business initiatives;
and amortization of intangible assets. There is no inter-segment revenue. Assets and liabilities
are not fully allocated to segments for internal reporting purposes.
Summarized information, by segment, as excerpted from internal management reports is as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
|
June 30, 2009 (As restated) |
|
|
June 30, 2008 (As restated) |
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
49,011 |
|
|
$ |
5,626 |
|
|
$ |
|
|
|
$ |
54,637 |
|
|
$ |
54,214 |
|
|
$ |
7,223 |
|
|
$ |
|
|
|
$ |
61,437 |
|
Cost of revenue |
|
|
10,357 |
|
|
|
1,975 |
|
|
|
472 |
|
|
|
12,804 |
|
|
|
9,452 |
|
|
|
1,533 |
|
|
|
229 |
|
|
|
11,214 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
38,654 |
|
|
|
3,651 |
|
|
|
(472 |
) |
|
|
41,833 |
|
|
|
44,762 |
|
|
|
5,690 |
|
|
|
(229 |
) |
|
|
50,223 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
|
18,647 |
|
|
|
1,692 |
|
|
|
1,048 |
|
|
|
21,387 |
|
|
|
18,063 |
|
|
|
3,413 |
|
|
|
1,664 |
|
|
|
23,140 |
|
Product and web site development |
|
|
5,300 |
|
|
|
500 |
|
|
|
625 |
|
|
|
6,425 |
|
|
|
5,841 |
|
|
|
337 |
|
|
|
624 |
|
|
|
6,802 |
|
General and administrative |
|
|
4,513 |
|
|
|
549 |
|
|
|
6,302 |
|
|
|
11,364 |
|
|
|
6,630 |
|
|
|
1,317 |
|
|
|
12,230 |
|
|
|
20,177 |
|
Amortization of intangible assets |
|
|
|
|
|
|
|
|
|
|
108 |
|
|
|
108 |
|
|
|
|
|
|
|
|
|
|
|
197 |
|
|
|
197 |
|
Litigation settlement |
|
|
|
|
|
|
|
|
|
|
975 |
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
28,460 |
|
|
|
2,741 |
|
|
|
9,058 |
|
|
|
40,259 |
|
|
|
30,534 |
|
|
|
5,067 |
|
|
|
14,715 |
|
|
|
50,316 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
from continuing operations |
|
$ |
10,194 |
|
|
$ |
910 |
|
|
$ |
(9,530 |
) |
|
$ |
1,574 |
|
|
$ |
14,228 |
|
|
$ |
623 |
|
|
$ |
(14,944 |
) |
|
$ |
(93 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, 2009 (As restated) |
|
|
June 30, 2008 (As restated) |
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
99,548 |
|
|
$ |
9,957 |
|
|
$ |
|
|
|
$ |
109,505 |
|
|
$ |
110,008 |
|
|
$ |
13,371 |
|
|
$ |
|
|
|
$ |
123,379 |
|
Cost of revenue |
|
|
20,684 |
|
|
|
3,864 |
|
|
|
903 |
|
|
|
25,451 |
|
|
|
18,964 |
|
|
|
3,102 |
|
|
|
583 |
|
|
|
22,649 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
78,864 |
|
|
|
6,093 |
|
|
|
(903 |
) |
|
|
84,054 |
|
|
|
91,044 |
|
|
|
10,269 |
|
|
|
(583 |
) |
|
|
100,730 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
|
36,555 |
|
|
|
3,519 |
|
|
|
2,075 |
|
|
|
42,149 |
|
|
|
37,411 |
|
|
|
6,784 |
|
|
|
3,071 |
|
|
|
47,266 |
|
Product and web site development |
|
|
10,655 |
|
|
|
1,037 |
|
|
|
1,116 |
|
|
|
12,808 |
|
|
|
11,605 |
|
|
|
788 |
|
|
|
1,296 |
|
|
|
13,689 |
|
General and administrative |
|
|
8,990 |
|
|
|
1,005 |
|
|
|
25,006 |
|
|
|
35,001 |
|
|
|
16,254 |
|
|
|
2,727 |
|
|
|
24,143 |
|
|
|
43,124 |
|
Amortization of intangible assets |
|
|
|
|
|
|
|
|
|
|
259 |
|
|
|
259 |
|
|
|
|
|
|
|
|
|
|
|
394 |
|
|
|
394 |
|
Litigation settlement |
|
|
|
|
|
|
|
|
|
|
975 |
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
56,200 |
|
|
|
5,561 |
|
|
|
29,431 |
|
|
|
91,192 |
|
|
|
65,270 |
|
|
|
10,299 |
|
|
|
28,904 |
|
|
|
104,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
from continuing operations |
|
$ |
22,664 |
|
|
$ |
532 |
|
|
$ |
(30,334 |
) |
|
$ |
(7,138 |
) |
|
$ |
25,774 |
|
|
$ |
(30 |
) |
|
$ |
(29,487 |
) |
|
$ |
(3,743 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18
16. Income Taxes
As a result of historical net operating losses, we have generally not recorded a provision for
income taxes. However, during the year ended December 31, 2006, we recorded certain indefinite
lived intangible assets as a result of the purchase of Moving.comTM which
creates a permanent difference as the amortization can be recorded for tax purposes but not for
book purposes. A deferred tax provision of $41,000 and $82,000 was recorded in the three and six
months ended June 30, 2009 and 2008, respectively. A reversal of $40,000 to the tax provision was
recorded in the three months ended June 30, 2009 as a result of federal alternative minimum taxes
incurred in the utilization of net operating losses against our taxable income and a $80,000 and
$95,000 tax provision was recorded in the three and six months ended June 30, 2009, respectively,
for state income taxes. An additional $121,000 tax provision was recorded in the three and six
months ended June 30, 2008 for state income taxes.
As of June 30, 2009, we do not have any accrued interest or penalties related to uncertain tax
positions. The Companys policy is to recognize interest and penalties related to uncertain tax
positions in income tax expense. We do not have any interest or penalties related to uncertain tax
positions in income tax expense for the three or six months ended June 30, 2009 and 2008. The tax
years 1993-2008 remain open to examination by the major taxing jurisdictions to which we are
subject.
17. Settlement of Disputes and Litigation
On August 2, 2007, ActiveRain Corp. (ActiveRain) sued the Company in the
United States District Court, Central District of California alleging, among other things, that the
Company breached a mutual nondisclosure agreement entered into between the Company and ActiveRain
in connection with negotiations in early 2007 for the potential acquisition of ActiveRain by the
Company. The discussions were terminated by the Company prior to entering into a definitive
acquisition agreement. On February 11, 2009, the parties entered into a settlement agreement in
which the Company agreed to pay an immaterial amount, and the case was dismissed with prejudice.
As part of the sale in 2002 of the Companys ConsumerInfo division to Experian Holdings, Inc.
(Experian), $10.0 million of the purchase price was put in escrow to secure the Companys
indemnification obligations (the Indemnity Escrow). Prior to the termination of the Indemnity
Escrow, Experian demanded indemnification from the Company for claims made against Experian or its
subsidiaries by several parties in civil actions and by the Federal Trade Commission (FTC),
including allegations of unfair and deceptive advertising in connection with ConsumerInfos
furnishing of credit reports and providing Advice for Improving Credit that appeared on its web
site both before, during, and after the Companys ownership of ConsumerInfo.
On April 20, 2009, the parties settled the dispute and entered into a full release of all
claims under which Experian received $7.4 million from the Indemnity Escrow and the Company
received the balance of the escrow of $1.1 million which was included in Gain on disposition of
discontinued operations in the Condensed Consolidated Statement of Operations.
In June 2002, Tren Technologies Holdings LLC., (Tren) sued the Company, the National
Association of REALTORS® (NAR) and the National Association of Home Builders (NAHB)
in the United States District Court, Eastern District of Pennsylvania for patent infringement based
on the Companys operation of the REALTOR.com® and HomeBuilder.com® web
sites. In October 2003, Kevin Keithley (Keithley) sued the Company, NAR and NAHB in the United
States District Court for the Northern District of California (the District Court) asserting that
he was the exclusive licensee of a patent involved in the case brought by Tren, and alleging the
same infringement and seeking the same relief as in the Tren action. On May 24, 2006, the court in
Pennsylvania dismissed the Tren case without prejudice. In September 2006, Keithley amended his
complaint to add Tren as a Plaintiff.
On November 19, 2008, the District Court judge issued an order granting the Companys motion
for summary judgment as to non-infringement and invalidity based on indefiniteness and denied the
other motions as moot. On March 4, 2009, the District Court entered final judgment in favor of the
Company. Keithley and Tren appealed the District Courts judgment with the U.S. Court of Appeals
for the Federal Circuit and the Company cross-appealed.
On May 22, 2009, the parties entered into an agreement resolving the patent infringement
claims brought against the Company, NAR and NAHB. Pursuant to the agreement, the Company received
a fully paid worldwide license to the patent at issue in the case for the consideration as
reflected on the Condensed Consolidated Statements of Operations. The District Court dismissed with
prejudice all claims against the Company, NAR and NAHB.
18. Commitments and Contingencies
Legal Proceedings
We are currently involved in certain legal proceedings, as discussed in Note 23, Commitments
and ContingenciesLegal Proceedings, to our Consolidated Financial Statements contained in Item 8
in our Annual Report on Form 10-K/A for the year ended December 31, 2008 (Annual Report) and
below in this Note 18. As of the date of this Form 10-Q, and except as disclosed below, there have
been no material developments in the legal proceedings disclosed in our Annual Report, and the
19
Company is not a party to any other litigation or administrative proceedings that management
believes will have a material adverse effect on the Companys business, results of operations,
financial condition or cash flows.
CGMI was the Companys investment advisor in connection with the Companys investment in ARS.
In February, 2008, the auctions for ARS failed and thereby rendered the Companys investment
illiquid (See Note 7). On September 17, 2008, the Company commenced an arbitration against CGMI
before the FINRA by filing a Statement of Claim alleging breach of fiduciary duty, breach of
contract and breach of contractual duty of good faith and fair dealing, violation of SEC Rule 10b-5
and FINRA Rule 2310, violation of SEC Rule 15c1-2, violation of the Investment Advisers Act, 15
U.S.C. Secs. 80b-1 et seq., and negligent misrepresentation. The Company is seeking that CGMI
return the funds that the Company entrusted to CGMI, compensatory and punitive damages, pre and
post judgment interest, attorneys fees, and other remedies the FINRA panel deems appropriate. The
FINRA arbitration originally scheduled for August 2009 was postponed by the FINRA arbitrators by
one month.
In December 2005, CIVIX-DDI, LLC (CIVIX) filed suit against NAR, the Company, Hotels.com,
L.P. and Hotels.com GP LLC in the United States District Court for the Northern District of
Illinois, Eastern Division. CIVIX subsequently added Yahoo! Inc. as a defendant. The complaint
alleges that the defendants, including the Company and NAR, infringe four CIVIX patents by
offering, providing, using and operating location-based searching services through the
REALTOR.com® web site and requests an unspecified amount of damages
(including treble damages for willful infringement and attorneys fees) and an injunction. The
Company is defending both itself and NAR. In September 2007, the court stayed the case pending
completion of reexamination of the patents in suit by the United States Patent and Trademark Office
(USPTO). In June and July 2009, the USPTO indicated that it would allow certain claims, or
amended claims, in three of the four patents in suit. Accordingly, the Company expects that the
stay will be lifted and the litigation will resume. The Company intends to vigorously defend
against the allegations made in the lawsuit. At this time, however, the Company is unable to
estimate the effect of the continuation of this case on our results of operations or financial
position.
Contingencies
From time to time, the Company is party to various other litigation and administrative
proceedings relating to claims arising from its operations in the ordinary course of business. As
of the date of this Form 10-Q and except as set forth herein, the Company is not a party to any
other litigation or administrative proceedings that management believes would have a material
adverse effect on the Companys business, results of operations, financial condition or cash flows.
19. Supplemental Cash Flow Information
During the six month period ended June 30, 2009:
|
|
|
The Company paid $904,000 in interest. |
|
|
|
|
The Company issued 1,800,000 shares of restricted common stock to its new Chief Executive
Officer with 700,000 shares vested immediately, and, subject to certain terms and restrictions,
500,000 shares vesting one year from the grant date and 600,000 shares vesting two years from
the grant date. The charge associated with these shares was $2.7 million and is being recognized
over the vesting periods. |
|
|
|
|
The Company issued 60,000 shares of restricted common stock to the members of the ad hoc
Executive Committee of its Board of Directors. Half of these shares vested on the grant date
and half of the shares will vest one year from the grant date. The charge associated with these
shares was $85,000 and is being recognized over the vesting periods. |
|
|
|
|
The Company issued 175,420 shares of restricted common stock to the non-employee members of
its Board of Directors which vest over three years. The charge associated with these shares was
$368,000 and is being recognized over the three-year vesting period. |
|
|
|
|
The Company received a $1.0 million promissory note in conjunction with the sale of its
Welcome Wagon division. The principal balance of the note is due on or before October 1, 2010.
The outstanding principal bears an interest rate of 7% per annum, with quarterly interest
payments due commencing on October 1, 2009. |
|
|
|
|
The Company issued $2.0 million in additional Series B Preferred Stock as in-kind dividends. |
During the six month period ended June 30, 2008:
|
|
|
The Company paid $63,000 in interest. |
|
|
|
|
The Company issued 130,000 shares of restricted common stock to two executive officers which
vest over three years. The charge associated with these shares was $323,000 and is being
recognized over the three-year vesting period. |
|
|
|
|
The Company issued 160,793 shares of restricted common stock to members of its Board of
Directors which vest over three years. The charge associated with these shares was $467,000 and
is being recognized over the three-year vesting period. |
20
|
|
|
The Company issued $1.9 million in additional Series B Preferred Stock as in-kind dividends. |
20. Subsequent Events
In July 2009, the Company hired a new Chief Financial Officer. In connection with his
employment contract, the Company issued 750,000 stock options, 225,000 restricted stock units and
150,000 restricted stock awards.
In July 2009, the Company sold certain product lines associated with the Enterprise business
for a sales price of $1.4 million.
The Company has completed an evaluation of all subsequent events through August 6, 2009, the
date the Company filed its Form 10-Q for the quarter ended June 30, 2009, and has evaluated
subsequent events through November 9, the date of filing this Form 10-Q/A for the quarter ended
June 30, 2009, and concluded that no subsequent events, other than those described above, occurred
that required recognition or disclosure.
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
This Form 10-Q/A and the following Managements Discussion and Analysis of Financial
Condition and Results of Operations include forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. This Act provides a safe harbor for
forward-looking statements to encourage companies to provide prospective information about
themselves so long as they identify these statements as forward-looking and provide meaningful
cautionary statements identifying important factors that could cause actual results to differ from
the projected results. All statements other than statements of historical fact that we make in this
Form 10-Q/A are forward-looking. In particular, the statements herein regarding industry prospects
and our future consolidated results of operations or financial position are forward-looking
statements. Forward-looking statements reflect our current expectations and are inherently
uncertain. Our actual results may differ significantly from our expectations. Factors that could
cause or contribute to such differences include those discussed below and elsewhere in this Form
10-Q/A, as well as those discussed in our Annual Report on Form 10-K/A for the year ended December
31, 2008, and in other documents we file with the Securities and Exchange Commission (SEC). This
Form 10-Q/A should be read in conjunction with our Annual Report on Form 10-K/A for the year ended
December 31, 2008.
Our Business
Move, Inc. and its subsidiaries (Move, we, our or us) operate an online network of web
sites for real estate search, finance, moving and home enthusiasts and the network is an important
resource for consumers seeking the information and connections they need before, during and after a
move. Our flagship consumer web sites are Move.com, REALTOR.com® and Moving.com. We also provide
lead management software for real estate agents and brokers through our Top Producer® business.
On our web sites, we display comprehensive real estate property content, with over four
million resale, new home and rental listings, as well as extensive move-related information and
tools. We hold a significant leadership position in terms of web traffic, attracting an average of
9.1 million consumers to our network per month during the six months ended June 30, 2009 according
to comScore Media Metrix, a substantial lead over the number two real estate site. We also have
strong relationships with the real estate industry, including content agreements with approximately
900 multiple listing services (MLSs) across the country and exclusive relationships with the
National Association of REALTORS® (NAR) and the National Association of Home Builders (NAHB).
Basis of Presentation
Our unaudited Condensed Consolidated Financial Statements reflect the historical results of
Move, Inc. and its subsidiaries. All significant intercompany accounts and transactions have been
eliminated.
Business Trends and Conditions
In recent years, our business has been, and we expect will continue to be, influenced by a
number of macroeconomic, industry-wide and product-specific trends and conditions:
|
|
|
Market and economic conditions. In recent years, the U.S. economy has
experienced low interest rates, and volatility in the equities
markets. Through 2005, housing starts remained strong, while the
supply of apartment housing generally exceeded demand. For a number of
years prior to 2007, owning a home became much more attainable for the
average consumer due to the availability of flexible mortgage options,
which required minimal down payments and provided low interest rates.
During this period, home builders spent less on advertising, given the
strong demand for new houses, and homeowners who were looking to sell
a home only had to list it at a reasonable price in most areas of the
U.S. to sell in 60 days or less. Conversely, demand for rental units
declined and apartment owners did not spend as much money on
advertising, as they have sought to achieve cost savings during the
difficult market for rentals. These trends had an |
21
|
|
|
impact on our
ability to grow our business. |
|
|
|
|
Beginning in the second half of 2006, the market dynamics started to
reverse. Interest rates rose and mortgage options began to decline.
The housing market became saturated with new home inventory in many
large metropolitan markets and the available inventory of resale homes
began to climb as demand softened. The impact of the rise in interest
rates caused demand for homes to decline in mid-2007. In the second
half of 2007, the availability of mortgage financing became very
sparse. The lack of liquidity coupled with increased supply of homes
and declining prices had a significant impact on real estate
professionals, our primary customers. |
|
|
|
|
Throughout 2008, market conditions continued to decline and in late
September of 2008, the stock market declines negatively impacted the
liquidity of the markets in general and have contributed to the
decline in consumer spending. With the exception of very few markets,
new home starts have essentially stopped. Consumer confidence has
declined and while mortgage rates have appeared to decline, the credit
standards are perceived to be the tightest they have been in the last
15 years. The combination of these factors has had a negative impact
on the demand for homes. These changing conditions resulted in fewer
home purchases and forced many real estate professionals to reconsider
their marketing spend. In 2006, we saw many customers begin to shift
their dollars from conventional offline channels, such as newspapers
and real estate guides, to the Internet. We saw many brokers move
their spending online and many home builders increased their marketing
spend to move existing inventory, even as they slowed their production
and our business grew as a result. However, as the slow market
continued into 2008, it has caused our rate of growth to decline.
While the advertising spend by many of the large agents and brokers
appears steady, some of the medium and smaller businesses and agents
have reduced expenses to remain in business and this has caused our
growth rate to continue to decline and we have experienced a decline
in revenue as we moved into 2009. |
|
|
|
|
Evolution of Our Product and Service Offerings and Pricing Structures |
Real Estate Services segment: Our Real Estate Services began as a provider of Internet
applications to real estate professionals. It became apparent that our customers valued the media
exposure that the Internet offered them, but not all of the technology that we were offering.
Many of our customers objected to our proposition that they purchase our templated web site in
order to gain access to our networks. In addition, we were charging a fixed price to all customers
regardless of the market in which they operate or the size of their business.
We responded to our customers needs and revamped our service offerings. We began to price our
REALTOR.com® services based on the size of the market and the number of properties the customer
displayed. Although for many of our customers this change led to substantial price increases over
our former pricing, this change was reasonably well-accepted by our customer base.
In 2006, we changed the business model for our New Homes and Rentals businesses. In the past,
we had charged homebuilders and rental owners to list their properties on our HomeBuilder.com® and
RENTNET® web sites. When we launched the Move.comtm web site on May 1, 2006, we
replaced our new homes site, HomeBuilder.com, and our apartment rentals site, RENTNET.com, with
Move.com. In conjunction with this change, we began to display new home and apartment listings for
no charge. Instead, we generated revenue from enhanced listings, including our Showcase Listing and
Featured Listing products, as well as other forms of advertising on the sites. Featured Listings,
which appear above the algorithmically-generated search results, are priced on a fixed
cost-per-click basis. When we launched the Move.comtm web site, existing
listing subscription customers were transitioned into our new products having comparable value for
the duration of their existing subscription. Although the consumer was provided with significantly
more content, the number of leads to our paying customers declined.
In todays market, our customers are facing a decline in their business and have to balance
their marketing needs with their ability to pay. As a result, they are demanding products that
perform and provide measurable results for their marketing spend. We are evaluating customer
feedback and balancing that with the need for an improved consumer experience and will modify our
products and our pricing to be responsive to both.
Consumer Media segment: The decline in consumer confidence and the resulting decline in
consumer spending has caused many of our traditional consumer advertisers to reduce their spending.
These economic conditions have contributed to the continued decline in our revenue in this segment.
It could take considerable time before this segment yields meaningful growth, if it does so at all.
Significant growth will require that we introduce new targeted products that are responsive to
advertisers demands and are presented to consumers much more timely.
Restructuring Charges
In the third and fourth quarters of 2008, our Board of Directors approved restructuring and
integration plans with the objective of eliminating duplicate resources and redundancies and
implementing a new operating structure to lower total operating expenses. As a result of these
plans, we incurred a restructuring charge from continuing operations of $4.4 million for the year
ended December 31, 2008. Included in this charge were lease obligations and related charges of $3.0
million for
22
the consolidation of our operations in Westlake Village, California and the vacancy of a portion of
the leased facility. In addition, the charge included severance and other payroll-related expenses
of $1.4 million associated with the reduction in workforce of 74 employees whose positions with us
were eliminated. These workforce reductions affected 27 employees in cost of revenue positions, 31
employees in sales and marketing, 5 employees in product and web site development and 11 employees
in general and administrative positions. We incurred a restructuring charge from discontinued
operations of $1.6 million associated with severance and other payroll-related expenses for 199
employees who were terminated.
During the six months ended June 30, 2009, we incurred an additional restructuring charge from
discontinued operations of $1.1 million associated with lease termination and employee severance
charges.
A
summary of activity for the three and six months ended June 30, 2009 related to these restructuring
plans is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease |
|
|
|
|
|
|
|
|
|
|
Obligations |
|
|
|
|
|
|
Employee |
|
|
and |
|
|
|
|
|
|
Termination |
|
|
Related |
|
|
|
|
|
|
Benefits |
|
|
Charges |
|
|
Total |
|
Accrued restructuring at December 31, 2008 |
|
$ |
1,404 |
|
|
$ |
2,144 |
|
|
$ |
3,548 |
|
Restructuring charges incurred from discontinued operations |
|
|
61 |
|
|
|
1,000 |
|
|
|
1,061 |
|
Change in estimates |
|
|
(42 |
) |
|
|
|
|
|
|
(42 |
) |
Payments |
|
|
(1,365 |
) |
|
|
(469 |
) |
|
|
(1,834 |
) |
|
|
|
|
|
|
|
|
|
|
Accrued restructuring at March 31, 2009 |
|
$ |
58 |
|
|
$ |
2,675 |
|
|
$ |
2,733 |
|
Change in estimates |
|
|
(23 |
) |
|
|
|
|
|
|
(23 |
) |
Payments |
|
|
(35 |
) |
|
|
(1,478 |
) |
|
|
(1,513 |
) |
|
|
|
|
|
|
|
|
|
|
Accrued restructuring at June 30, 2009 |
|
$ |
|
|
|
$ |
1,197 |
|
|
$ |
1,197 |
|
|
|
|
|
|
|
|
|
|
|
Substantially all of the remaining restructuring liabilities at June 30, 2009 will be paid in
2009.
Discontinued Operations
In the fourth quarter of 2007, we decided to divest our Homeplans business, which had been
reported as part of our Consumer Media segment. On April 15, 2008, we closed the sale of the
business for a sales price of $1.0 million in cash. The transaction did not result in any
significant gain or loss on disposition.
In the second quarter of 2008, we decided to divest our Welcome Wagon® business, which had
been reported as part of our Consumer Media segment. On June 22, 2009, the Company closed the sale
of the business for a sales price of $2.0 million. The Company received $1.0 million in cash and
recorded a $1.0 million note receivable. The principal balance of the note is due on or before
October 1, 2010. The outstanding principal bears an interest rate of 7% per annum, with quarterly
interest payments due commencing on October 1, 2009. The transaction resulted in a gain on
disposition of discontinued operations of $1.2 million for the three and six months ended June 30,
2009.
As part of the sale in 2002 of the Companys ConsumerInfo division to Experian Holdings, Inc.
(Experian), $10.0 million of the purchase price was put in escrow to secure the Companys
indemnification obligations (the Indemnity Escrow). Under the terms of the stock purchase
agreement, the Companys maximum potential liability for claims by Experian was capped at $29.25
million less the balance in the Indemnity Escrow, which amount was approximately $8.5 million.
During 2008, Experian demanded $29.25 million in indemnity payments. The Company denied liability
for that sum and a bifurcated arbitration proceeding ensued to resolve the dispute. Subsequent to
the completion of the first phase of the arbitration proceedings, on April 20, 2009, the parties
settled the dispute and entered into a full release of all claims under which Experian received
$7.4 million from the Indemnity Escrow and the Company received the balance of the escrow of $1.1
million, which is included in gain on disposition of discontinued operations for the three and six
months ended June 30, 2009.
Pursuant to SFAS No. 144, our Consolidated Financial Statements for all periods presented
reflect the reclassification of our Homeplans and Welcome Wagon® divisions as discontinued
operations. Accordingly, the revenue, costs and expenses, and cash flows of these divisions have
been excluded from the respective captions in the Consolidated Statements of Operations and
Consolidated Statements of Cash Flows and have been reported as Loss from discontinued
operations, net of
23
applicable income taxes of zero; and as Net cash used in discontinued operating activities and
Net cash provided by discontinued investing activities. Total revenue and loss from
discontinued operations are reflected below (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Revenue |
|
$ |
4,094 |
|
|
$ |
7,842 |
|
|
$ |
9,609 |
|
|
$ |
17,553 |
|
Total operating expenses |
|
|
4,003 |
|
|
|
10,918 |
|
|
|
8,813 |
|
|
|
23,077 |
|
Impairment of long-lived assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
126 |
|
Restructuring charges |
|
|
(16 |
) |
|
|
|
|
|
|
1,045 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from discontinued operations |
|
$ |
107 |
|
|
$ |
(3,076 |
) |
|
$ |
(249 |
) |
|
$ |
(5,650 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on disposition of discontinued operations |
|
$ |
2,303 |
|
|
$ |
|
|
|
$ |
2,303 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Critical Accounting Policies
Our discussion and analysis of our financial condition and results of operations is based upon
our unaudited Condensed Consolidated Financial Statements, which have been prepared in accordance
with U.S. generally accepted accounting principles. The preparation of these unaudited Condensed
Consolidated Financial Statements requires us to make estimates and judgments that affect the
reported amounts of assets, liabilities, revenues and expenses, and related disclosure of
contingent assets and liabilities. On an ongoing basis, we evaluate our estimates, including those
related to revenue recognition, uncollectible receivables, intangible and other long-lived assets
and contingencies. We base our estimates on historical experience and on various other assumptions
that are believed to be reasonable under the circumstances, the results of which form the basis for
making judgments about the carrying values of assets and liabilities that are not readily apparent
from other sources. Actual results may differ from these estimates under different assumptions or
conditions. There were no significant changes to our critical accounting policies during the six
months ended June 30, 2009, as compared to those policies disclosed in our Annual Report on Form
10-K/A for the fiscal year ended December 31, 2008.
Legal Contingencies
We are currently involved in certain legal proceedings, as discussed in Note 23, Commitments
and ContingenciesLegal Proceedings, to our Consolidated Financial Statements contained in Item 8
in our Annual Report on Form 10-K/A for the year ended December 31, 2008, and in Note 18,
Commitments and Contingencies to our Unaudited Condensed Consolidated Financial Statements
contained in Item 1 of Part I of this Form 10-Q/A. Because of the uncertainties related to both
the amount and range of potential liability in connection with legal proceedings, we are unable to
make a reasonable estimate of the liability that could result from unfavorable outcomes in our
remaining pending litigation. As additional information becomes available, we will assess the
potential liability related to our pending litigation and determine whether reasonable estimates of
the liability can be made. Unfavorable outcomes, or significant estimates of our potential
liability, could materially impact our results of operations and financial position.
Results of Operations
Three Months Ended June 30, 2009 and 2008
Revenue
Revenue decreased $6.8 million, or 11%, to $54.6 million for the three months ended June 30
2009, compared to $61.4 million for the three months ended June 30, 2008. The decrease in revenue
was due to decreases of $5.2 million in the Real Estate Services segment and $1.6 million in the
Consumer Media segment. These changes by segment are explained in the segment information below.
Cost of Revenue
Cost of revenue increased $1.6 million, or 14%, to $12.8 million for the three months ended
June 30, 2009, compared to $11.2 million for the three months ended June 30, 2008. The increase was
primarily due to higher product fulfillment costs of $0.8 million resulting from improvements made
to the featured product lines, increased costs of $0.6 million associated with development services
to NAR and other cost increases of $0.2 million.
Gross margin percentage decreased to 77% for the three months ended June 30, 2009, compared to
82% for the three months ended June 30, 2008. The decrease is due to reduced higher margin
advertising revenue; increased product fulfillment and development services costs; and overall
fixed overhead expenses being applied against lower revenues.
Operating Expenses
Sales and marketing. Sales and marketing expenses decreased $1.7 million, or 7%, to $21.4
million for the three months ended June 30, 2009, compared to $23.1 million for the three months
ended June 30, 2008. The decrease was primarily due to
24
a decrease in online distribution costs of $2.0 million and other cost decreases of $0.3 million,
partially offset by a $0.6 million increase in personnel related costs.
Product and web site development. Product and web site development expenses decreased $0.4
million, or 6%, to $6.4 million for the three months ended June 30, 2009, compared to $6.8 million
for the three months ended June 30, 2008 as a result of reduced outside consulting costs.
General and administrative. General and administrative expenses decreased $8.8 million, or
44%, to $11.4 million for the three months ended June 30, 2009, compared to $20.2 million for the
three months ended June 30, 2008. The decrease was primarily due to a decrease in personnel
related costs of $5.4 million, including a $2.2 million decrease in non-cash stock based
compensation, a $1.4 million decrease in legal costs, a $0.6 million decrease in consulting costs,
a $0.5 million decrease in depreciation expense, a $0.4 million decrease in rent expense as a
result of our restructuring efforts and other cost decreases of $0.5 million.
Amortization of intangible assets. Amortization of intangible assets was $0.1 million and $0.2
million for the three months ended June 30, 2009 and 2008, respectively.
Litigation settlement. We recorded a litigation settlement charge of $1.0 million for the
three months ended June 30, 2009. There were no litigation settlement charges for the three months
ended June 30, 2008. These settlements are discussed in Note 17, Settlement of Disputes and
Litigation to our Condensed Consolidated Financial Statements contained in Item 1 of this Form
10-Q/A.
Stock-based compensation and charges. The following chart summarizes the stock-based
compensation and charges that have been included in the following captions for each of the periods
presented (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
|
(As restated) |
|
|
(As restated) |
|
Cost of revenue |
|
$ |
46 |
|
|
$ |
31 |
|
Sales and marketing |
|
|
604 |
|
|
|
103 |
|
Product and web site development |
|
|
187 |
|
|
|
84 |
|
General and administrative |
|
|
451 |
|
|
|
2,534 |
|
|
|
|
|
|
|
|
Total from continuing operations |
|
$ |
1,288 |
|
|
$ |
2,752 |
|
|
|
|
|
|
|
|
Stock-based compensation and charges decreased $1.5 million for the three months ended June
30, 2009 compared to the three months ended June 30, 2008 primarily due to fewer stock option
grants and an increase in forfeitures.
Interest Income, Net
Interest income, net, decreased $1.2 million to $0.3 million for the three months ended June
30, 2009, compared to $1.5 million for the three months ended June 30, 2008, primarily due to
decreases in interest yields on short-term and long-term investments and an increase in interest
expense due to new short-term borrowings under our line of credit.
Other Income, Net
Other income, net, remained relatively constant for three months ended June 30, 2009 and 2008,
respectively. Other income was generated primarily from the revaluation of an embedded derivative
liability resulting from the issuance of convertible preferred stock in December 2005.
Income Taxes
As a result of historical net operating losses, we have generally not recorded a provision for
income taxes. However, during the year ended December 31, 2006, we recorded certain indefinite
lived intangible assets as a result of the purchase of Moving.comTM which
creates a permanent difference as the amortization can be recorded for tax purposes but not for
book purposes. A deferred tax provision of $41,000 was recorded in the three months ended June 30,
2009 and 2008, respectively. A reversal of $40,000 to the tax provision was recorded in the three
months ended June 30, 2009 as a result of federal alternative minimum taxes incurred in the
utilization of net operating losses against our taxable income and an $80,000 tax provision was
recorded in the three months ended June 30, 2009 for state income taxes. An additional $121,000
tax provision was recorded in the three months ended June 30, 2008 for state income taxes.
At December 31, 2008, we had gross net operating loss carryforwards (NOLs) for federal and
state income tax purposes of approximately $934.6 million and $351.3 million, respectively. The
federal NOLs begin to expire in 2018 and the state NOLs will expire from 2009 until 2027. Gross net
operating loss carryforwards for both federal and state tax purposes may be subject to an annual
limitation under relevant tax laws. We have provided a full valuation allowance on our deferred tax
assets, consisting primarily of net operating loss carryforwards, due to the likelihood that we may
not generate sufficient taxable
25
income during the carryforward period to utilize the net operating loss carryforwards.
Segment Information
Segment information is presented in accordance with SFAS No. 131, Disclosures about Segments
of an Enterprise and Related Information. This standard is based on a management approach, which
requires segmentation based upon our internal organization and disclosure of revenue and operating
expenses based upon internal accounting methods. Our management evaluates performance and allocates
resources based on two segments consisting of Real Estate Services, for those products and services
offered to industry professionals trying to reach new movers and manage their relationships with
them, and Consumer Media, for those products and services offered to other advertisers who are
trying to reach consumers in the process of a move. This is consistent with the data that is made
available to our management to assess performance and make decisions. As described in the
Discontinued Operations section above, we sold our Homeplans and Welcome Wagon® businesses and,
as a result, the operating results of these businesses have been reclassified as discontinued
operations for all periods presented.
The expenses presented below for each of the business segments include an allocation of
certain corporate expenses that are identifiable and benefit those segments, and are allocated for
internal management reporting purposes. The unallocated expenses are those corporate overhead
expenses that are not directly attributable to a segment, and include: corporate expenses, such as
finance, legal, executive, corporate brand marketing, certain corporate technology costs (including
internal business systems), and human resources; expenses associated with new business initiatives;
and amortization of intangible assets. There is no inter-segment revenue. Assets and liabilities
are not fully allocated to segments for internal reporting purposes.
Summarized information by segment, as excerpted from internal management reports, is as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
|
June 30, 2009 (As restated) |
|
|
June 30, 2008 (As restated) |
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
49,011 |
|
|
$ |
5,626 |
|
|
$ |
|
|
|
$ |
54,637 |
|
|
$ |
54,214 |
|
|
$ |
7,223 |
|
|
$ |
|
|
|
$ |
61,437 |
|
Cost of revenue |
|
|
10,357 |
|
|
|
1,975 |
|
|
|
472 |
|
|
|
12,804 |
|
|
|
9,452 |
|
|
|
1,533 |
|
|
|
229 |
|
|
|
11,214 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
38,654 |
|
|
|
3,651 |
|
|
|
(472 |
) |
|
|
41,833 |
|
|
|
44,762 |
|
|
|
5,690 |
|
|
|
(229 |
) |
|
|
50,223 |
|
Sales and marketing |
|
|
18,647 |
|
|
|
1,692 |
|
|
|
1,048 |
|
|
|
21,387 |
|
|
|
18,063 |
|
|
|
3,413 |
|
|
|
1,664 |
|
|
|
23,140 |
|
Product and web site development |
|
|
5,300 |
|
|
|
500 |
|
|
|
625 |
|
|
|
6,425 |
|
|
|
5,841 |
|
|
|
337 |
|
|
|
624 |
|
|
|
6,802 |
|
General and administrative |
|
|
4,513 |
|
|
|
549 |
|
|
|
6,302 |
|
|
|
11,364 |
|
|
|
6,630 |
|
|
|
1,317 |
|
|
|
12,230 |
|
|
|
20,177 |
|
Amortization of intangible assets |
|
|
|
|
|
|
|
|
|
|
108 |
|
|
|
108 |
|
|
|
|
|
|
|
|
|
|
|
197 |
|
|
|
197 |
|
Litigation settlement |
|
|
|
|
|
|
|
|
|
|
975 |
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
28,460 |
|
|
|
2,741 |
|
|
|
9,058 |
|
|
|
40,259 |
|
|
|
30,534 |
|
|
|
5,067 |
|
|
|
14,715 |
|
|
|
50,316 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
from continuing operations |
|
$ |
10,194 |
|
|
$ |
910 |
|
|
$ |
(9,530 |
) |
|
$ |
1,574 |
|
|
$ |
14,228 |
|
|
$ |
623 |
|
|
$ |
(14,944 |
) |
|
$ |
(93 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Real Estate Services
Real Estate Services consists of products and services that promote and connect real estate
professionals to consumers through our REALTOR.com®, New Homes and Rentals on
Move.comTM and SeniorHousingNet.com web sites, in addition to our customer
relationship management applications for REALTORS® offered through our Top Producer® business. Our
revenue is derived from a variety of advertising and software services, including enhanced
listings, company and property display advertising, customer relationship management applications
and web site sales which we sell to those businesses interested in reaching our targeted audience
or those professionals interested in being more effective in managing their contact with consumers.
Real Estate Services revenue decreased $5.2 million, or 10%, to $49.0 million for the three
months ended June 30, 2009, compared to $54.2 million for the three months ended June 30, 2008
primarily due to a decrease in our REALTOR.com® and New Homes businesses. The REALTOR.com business
experienced lower Featured HomesTM and listing enhancement revenue directly
related to reduced purchasing by one large broker customer. In addition, there was reduced
spending on listing enhancement and Featured Homes products by our agent customers due to general
economic conditions partially offset by increased revenues generated by our improved Featured
CommunityTM product. Our New Homes business experienced a significant decrease
in revenue resulting from the downturn in the new construction market. Real Estate Services
revenue represented 90% of total revenue for the three months ended June 30, 2009, compared to 88%
of total revenue for the three months ended June 30, 2008.
Real Estate Services expenses decreased $1.2 million, or 3%, to $38.8 million for the three
months ended June 30, 2009, compared to $40.0 million for the three months ended June 30, 2008.
There was a $2.1 million decrease in general and
26
administrative expenses primarily due to a $1.6 million decrease in personnel related expenses
and other cost reductions of $0.5 million. Product and web site development expenses decreased
$0.5 million primarily due to reduced outside consulting costs. These decreases were partially
offset by an increase in cost of revenue of $0.9 million primarily due to an increase in product
fulfillment costs associated with improvements to the Featured CommunityTM
products and increased costs associated with development services to NAR. Sales and marketing
expenses increased $0.5 million primarily due to increased personnel related costs of $1.0 million
partially offset by decreased online distribution costs of $0.5 million.
Real Estate Services generated operating income of $10.2 million for the three months ended
June 30, 2009, compared to operating income of $14.2 million for the three months ended June 30,
2008, primarily due to reduced revenues discussed above.
Consumer Media
Consumer Media consists of on-line advertising products and lead generation tools including
display, text-link and rich advertising positions, directory products, price quote tools and
content sponsorships which we sell to businesses interested in reaching our targeted audience.
Consumer Media revenue decreased $1.6 million, or 22%, to $5.6 million for the three months
ended June 30, 2009, compared to $7.2 million for the three months ended June 30, 2008. The
decrease was primarily generated by a decline in our online display revenue due to reduced revenue
per impression as a result of declining market demand for online advertising. Consumer Media
revenue represented 10% of total revenue for the three months ended June 30, 2009, compared to 12%
of total revenue for the three months ended June 30, 2008.
Consumer Media expenses decreased $1.9 million, or 29%, to $4.7 million for the three months
ended June 30, 2009, compared to $6.6 million for the three months ended June 30, 2008. The
decrease was primarily due to a $1.4 million decrease in online distribution costs and a $0.7
million decrease in personnel related costs, partially offset by increased lead generation costs.
Consumer Media generated operating income of $0.9 million for the three months ended June 30,
2009, compared to $0.6 million for the three months ended June 30, 2008 primarily due to factors
outlined above.
Unallocated
Unallocated expenses decreased $5.4 million, or 36%, to $9.5 million for the three months
ended June 30, 2009, compared to $14.9 million for the three months ended June 30, 2008. The
decrease was primarily due to a $3.2 million decrease in personnel related costs, including a $2.0
million decrease in non-cash stock based compensation, a $1.4 million decrease in legal costs, $0.4
million decrease in rent expense as a result of our restructuring efforts and other cost decreases
of $0.4 million.
Six Months Ended June 30, 2009 and 2008
Revenue
Revenue decreased $13.9 million, or 11%, to $109.5 million for the six months ended June 30,
2009, compared to $123.4 million for the six months ended June 30, 2008. The decrease in revenue
was due to decreases of $10.5 million in the Real Estate Services segment and a $3.4 million
decline in the Consumer Media segment. These changes by segment are explained in the segment
information below.
Cost of Revenue
Cost of revenue increased $2.8 million, or 12%, to $25.4 million for the six months ended June
30, 2009 from $22.6 million for the six months ended June 30, 2008. The increase was primarily due
to higher product fulfillment cost of $2.3 million resulting from improvements made to our featured
product lines, increased costs of $1.2 million associated with development services to NAR and
increased depreciation expense of $0.6 million associated with new storage hardware in our data
center. These increases were partially offset by a decrease in personnel related costs of $1.1
million and other cost decreases of $0.2 million.
Gross margin percentage decreased to 77% for the six months ended June 30, 2009, compared to
82% for the six months ended June 30, 2008. The decrease is due to reduced higher margin
advertising revenue; increased product fulfillment and development services costs; and overall
fixed overhead expenses being applied against lower revenues.
Operating Expenses
Sales and marketing. Sales and marketing expenses decreased $5.1 million, or 11%, to $42.2
million for the six months ended June 30, 2009, compared to $47.3 million for the six months ended
June 30, 2008. The decrease was primarily due to a decrease in online distribution costs of $5.9
million and other cost decreases of $0.4 million, partially offset by increases in
27
personnel related costs of $1.2 million.
Product and web site development. Product and web site development expenses decreased
approximately $0.9 million, or 6%, to $12.8 million for the six months ended June 30, 2009,
compared to $13.7 million for the six months ended June 30, 2008 as a result of reduced outside
consulting costs.
General and administrative. General and administrative expenses decreased approximately $8.1
million, or 19%, to $35.0 million for the six months ended June 30, 2009, compared to $43.1 million
for the six months ended June 30, 2008. The decrease was primarily due to a $6.3 million decrease
in personnel related expenses, excluding non-cash stock-based compensation, primarily due to our
restructuring efforts. Additionally, there was a $2.2 million decrease in legal fees, a $1.0
million decrease in outside consulting costs, a $0.9 million decrease in rent expense due to our
restructuring efforts, a $0.8 million decrease in depreciation expense and other cost decreases of
$0.9 million. These decreases were partially offset by an increase in non-cash stock based
compensation of $4.0 million primarily due to the acceleration and modification of options upon the
termination of two executive officers and restricted stock awards and options granted to the new
Chief Executive Officer that were immediately vested.
Amortization of intangible assets. Amortization of intangible assets was approximately $0.3
million and $0.4 million for the six months ended June 30, 2009 and 2008, respectively.
Litigation settlement. We recorded a litigation settlement charge of $1.0 million for the six
months ended June 30, 2009. There were no litigation settlement charges for the six months ended
June 30, 2008. These settlements are discussed in Note 17, Settlement of Disputes and Litigation
to our Condensed Consolidated Financial Statements contained in Item 1 of this Form 10-Q/A.
Stock-based compensation and charges. The following chart summarizes the stock-based
compensation and charges that have been included in the following captions for each of the periods
presented (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
|
(As restated) |
|
|
(As restated) |
|
|
|
|
|
|
|
|
|
|
Cost of revenue |
|
$ |
83 |
|
|
$ |
69 |
|
Sales and marketing |
|
|
877 |
|
|
|
209 |
|
Product and web site development |
|
|
327 |
|
|
|
269 |
|
General and administrative |
|
|
10,638 |
|
|
|
6,476 |
|
|
|
|
|
|
|
|
Total from continuing operations |
|
$ |
11,925 |
|
|
$ |
7,023 |
|
|
|
|
|
|
|
|
Stock-based compensation and charges increased $4.9 million for the six months ended June 30,
2009, compared to the six months ended June 30, 2008, primarily due to the acceleration and
modification of options upon termination for two executive officers and restricted stock awards and
options granted to the new Chief Executive Officer that were immediately vested. These increases
were partially offset by lower stock option expense as a result of fewer option grants.
Interest Income, Net
Interest income, net, decreased $3.1 million to $0.5 million for the six months ended June 30,
2009, compared to $3.6 million for the six months ended June 30, 2008, primarily due to decreases
in interest yields on short-term investments and an increase in interest expense due to new
short-term borrowings under our line of credit.
Other Income, Net
Other income, net, remained relatively constant for the six months ended June 30, 2009,
compared to the six months ended June 30, 2008. Other income was generated primarily from the
revaluation of an embedded derivative liability resulting from the issuance of convertible
preferred stock in December 2005.
Income Taxes
As a result of historical net operating losses, we have generally not recorded a provision for
income taxes. However, during the year ended December 31, 2006, we recorded certain indefinite
lived intangible assets as a result of the purchase of Moving.comTM which
creates a permanent difference as the amortization can be recorded for tax purposes but not for
book purposes. A deferred tax provision of $82,000 was recorded in the six months ended June 30,
2009 and 2008, respectively. A $95,000 tax provision was recorded in the six months ended June 30,
2009 for state income taxes. An additional $121,000 tax provision was recorded in the six months
ended June 30, 2008 for state income taxes.
28
Segment Information
Summarized information by segment, as excerpted from internal management reports, is as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 30, 2009 (As restated) |
|
|
June 30, 2008 (As restated) |
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
|
Real Estate |
|
|
Consumer |
|
|
|
|
|
|
|
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
Services |
|
|
Media |
|
|
Unallocated |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
99,548 |
|
|
$ |
9,957 |
|
|
$ |
|
|
|
$ |
109,505 |
|
|
$ |
110,008 |
|
|
$ |
13,371 |
|
|
$ |
|
|
|
$ |
123,379 |
|
Cost of revenue |
|
|
20,684 |
|
|
|
3,864 |
|
|
|
903 |
|
|
|
25,451 |
|
|
|
18,964 |
|
|
|
3,102 |
|
|
|
583 |
|
|
|
22,649 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
78,864 |
|
|
|
6,093 |
|
|
|
(903 |
) |
|
|
84,054 |
|
|
|
91,044 |
|
|
|
10,269 |
|
|
|
(583 |
) |
|
|
100,730 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
|
36,555 |
|
|
|
3,519 |
|
|
|
2,075 |
|
|
|
42,149 |
|
|
|
37,411 |
|
|
|
6,784 |
|
|
|
3,071 |
|
|
|
47,266 |
|
Product and web site development |
|
|
10,655 |
|
|
|
1,037 |
|
|
|
1,116 |
|
|
|
12,808 |
|
|
|
11,605 |
|
|
|
788 |
|
|
|
1,296 |
|
|
|
13,689 |
|
General and administrative |
|
|
8,990 |
|
|
|
1,005 |
|
|
|
25,006 |
|
|
|
35,001 |
|
|
|
16,254 |
|
|
|
2,727 |
|
|
|
24,143 |
|
|
|
43,124 |
|
Amortization of intangible assets |
|
|
|
|
|
|
|
|
|
|
259 |
|
|
|
259 |
|
|
|
|
|
|
|
|
|
|
|
394 |
|
|
|
394 |
|
Litigation settlement |
|
|
|
|
|
|
|
|
|
|
975 |
|
|
|
975 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
56,200 |
|
|
|
5,561 |
|
|
|
29,431 |
|
|
|
91,192 |
|
|
|
65,270 |
|
|
|
10,299 |
|
|
|
28,904 |
|
|
|
104,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
from continuing operations |
|
$ |
22,664 |
|
|
$ |
532 |
|
|
$ |
(30,334 |
) |
|
$ |
(7,138 |
) |
|
$ |
25,774 |
|
|
$ |
(30 |
) |
|
$ |
(29,487 |
) |
|
$ |
(3,743 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Real Estate Services
Real Estate Services revenue decreased $10.5 million, or 10%, to $99.5 million for the six
months ended June 30, 2009, compared to $110.0 million for the six months ended June 30, 2008
primarily due to a decrease in our REALTOR.com® and New Homes businesses. The REALTOR.com business
experienced lower Featured HomesTM and listing enhancement revenue directly
related to reduced purchasing by one large broker customer. In addition, there was reduced
spending on listing enhancement and Featured Homes products by our agent customers due to general
economic conditions partially offset by increased revenues generated by our improved Featured
CommunityTM product. Our New Homes business experienced a significant decrease
in revenue resulting from the downturn in the new construction market. There was a modest decline
in our Rentals product offerings. Real Estate Services revenue represented approximately 91% of
total revenue for the six months ended June 30, 2009 compared to 89% for the six months ended June
30, 2008.
Real Estate Services expenses decreased $7.3 million, or 9%, to $76.9 million for the six
months ended June 30, 2009, compared to $84.2 million for the six months ended June 30, 2008.
There was a $7.2 million decrease in general and administrative expenses primarily due to a $5.9
million decrease in personnel related costs, a $0.6 million decrease in depreciation expense and
other cost decreases of $0.7 million. The decrease in personnel related expenses included $1.4
million associated with non-cash stock based compensation and $2.0 million of severance costs
included in the six months ended June 30, 2008. Product and web site development cost decreased
$1.0 million primarily due to reduced consulting costs. Sales and marketing costs decreased $0.9
million primarily due to a $2.8 million decrease in online distribution costs partially offset by a
$1.9 million increase in personnel related costs. These decreases were partially offset by an
increase in cost of revenue of $1.7 million primarily due to increased product fulfillment costs
associated with improvements to the Featured CommunityTM products and increased
costs associated with development services to NAR.
Real Estate Services generated operating income of $22.7 million for the six months ended June
30, 2009, compared to operating income of $25.8 million for the six months ended June 30, 2008,
primarily due to the decreased revenues discussed above.
Consumer Media
Consumer Media revenue decreased $3.4 million, or 25%, to $10.0 million for the six months
ended June 30, 2009, compared to $13.4 million for the six months ended June 30, 2008. The decrease
was primarily generated by a decline in our online display revenue due to reduced revenue per
impression as a result of declining market demand for online advertising. Consumer Media revenue
represented approximately 9% of total revenue for the six months ended June 30, 2009, compared to
11% for the six months ended June 30, 2008.
Consumer Media expenses decreased $4.0 million, or 30%, to $9.4 million for the six months
ended June 30, 2009, compared to $13.4 million for the six months ended June 30, 2008. The decrease
was primarily due to a $3.0 million decrease in online distribution costs, a $1.6 million decrease
in personnel related costs and other cost decreases of $0.3 million, partially offset by a $0.9
million increase in lead generation costs.
Consumer Media generated an operating income of $0.5 million for the six months ended June 30,
2009, compared to a slight operating loss for the six months ended June 30, 2008, primarily due to
factors outlined above.
29
Unallocated
Unallocated expenses increased $0.8 million, or 3%, to $30.3 million for the six months ended
June 30, 2009, compared to $29.5 million for the six months ended June 30, 2008. The increase was
primarily due to a $5.5 million increase in non-cash stock based compensation primarily due to the
acceleration and modification of options upon the termination of two executive officers and
restricted stock awards and option granted to the new Chief Executive Officer that were immediately
vested. Additionally, there was a litigation settlement charge of $1.0 million related to patent
litigation. These increases were partially offset by a decrease in personnel related costs, net of
non-cash stock based compensation and one-time severance costs, of $2.7 million, a decrease in
legal costs of $2.2 million and a decrease of $0.8 million in rent expense as a result of our
restructuring efforts.
Liquidity and Capital Resources
Net cash provided by continuing operating activities of $5.1 million for the six months ended
June 30, 2009 was attributable to the net loss from continuing operations of $6.4 million, plus
non-cash expenses including depreciation, amortization of intangible assets, provision for doubtful
accounts, stock-based compensation and charges, change in market value of embedded derivative
liability and other non-cash items, aggregating to $17.7 million offset by changes in operating
assets and liabilities of $6.2 million.
Net cash provided by continuing operating activities of $10.8 million for the six months ended
June 30, 2008 was attributable to the net loss from continuing operations of $0.2 million, plus
non-cash expenses including depreciation, amortization of intangible assets, provision for doubtful
accounts, loss on sales of fixed assets, stock-based compensation and charges, change in market
value of embedded derivative liability and other non-cash items, aggregating to $13.6 million
offset by changes in operating assets and liabilities of $2.6 million.
Net cash used in continuing investing activities of $4.5 million for the six months ended June
30, 2009 was due to capital expenditures.
Net cash used in continuing investing activities of $24.9 million for the six months ended
June 30, 2008 was primarily attributable to net purchases of short-term investments of $19.8
million and capital expenditures of $5.1 million.
Net cash used in financing activities of $1.3 million for the six months ended June 30, 2009
was attributable to tax withholdings related to net share settlements of restricted stock awards of
$1.1 million and payments on capital lease obligations of $0.3 million partially offset by proceeds
from restricted cash and exercises of stock options aggregating $0.1 million.
Net cash provided by financing activities of $0.1 million for the six months ended June 30,
2008 was attributable to proceeds from the exercise of stock options of $1.0 million and reductions
in restricted cash of $0.1 million offset by payments on capital lease obligations of $1.0 million.
We have generated positive operating cash flows in each of the last two years. We have no
material financial commitments other than those under our loan agreement with Citigroup Global
Markets, Inc. (CGMI), operating lease agreements, online distribution and marketing agreements
and our operating agreement with NAR. We believe that existing funds, cash generated from
operations, and existing sources of debt financing are adequate to satisfy our working capital and
capital expenditure requirements for the foreseeable future.
As of June 30, 2009, our long-term investments included $111.8 million of high-grade (AAA
rated) student loan auction rate securities issued by student loan funding organizations, which
loans are 97% guaranteed under FFELP (Federal Family Education Loan Program). These auction rate
securities (ARS) were intended to provide liquidity via an auction process that resets the
interest rate, generally every 28 days, allowing investors to either roll over their holdings or
sell them at par. All purchases of these auction rate securities were in compliance with our
investment policy. In February 2008, auctions for the investments in these securities failed to
settle on their respective settlement dates. Consequently, the investments are not currently
liquid and we will not be able to access these funds until a future auction of these investments is
successful, the securities mature or a buyer is found outside of the auction process. Maturity
dates for these ARS investments range from 2030 to 2047 with principal distributions occurring on
certain securities prior to maturity. We do not have a need to access these funds for operational
purposes for the foreseeable future. We currently have the ability and the intent to hold these
ARS investments until their fair value recovers, until they reach maturity or until they can be
sold in a market that facilitates orderly transactions. As of June 30, 2009, we classified $111.8
million of the ARS investment balance as Long-term Investments because of the inability to
determine when our investments in ARS would become liquid. We have also modified our current
investment strategy and increased our investments in more liquid money market and treasury bill
investments. During the year ended December 31, 2008, we determined that there was a decline in
the fair value of our ARS investments of $17.6 million which we deemed as temporary and included in
other comprehensive income.
The valuation of our investment portfolio is subject to uncertainties that are difficult to
predict. Factors that may impact its valuation include changes in credit ratings of the securities
as well as to the underlying assets supporting those securities, rates
30
of default of the underlying assets, underlying collateral value, discount rates and ongoing
strength and quality of market credit and liquidity.
If the current market conditions deteriorate further, or the anticipated recovery in market
values does not occur, we may be required in future quarters to record additional unrealized losses
in other comprehensive income (loss) or depending on the circumstances existing at the time, such
losses may be considered other than temporary and recorded as a component of net income (loss).
On May 8, 2008, we entered into a revolving line of credit providing for borrowings of up to
$64.8 million with CGMI for a term of one year. On May 6, 2009 the line of credit was extended to
May 21, 2009. Effective May 21, 2009, we entered into an amendment to our revolving line of credit
facility with CGMI. The amendment extended the date by which we are required to repay outstanding
principal advances to May 20, 2010 and revised the interest rate applicable to such advances. The
per annum interest rate was revised to a rate equal to the lesser of (a) the Open Federal Funds
Rate plus 3.8% or (b) CGMIs and its affiliates proprietary CGM Working Capital Rate. As of June
30, 2009, the interest rate was 2.32%. The available borrowings may not exceed 50% of the par
value of the Companys ARS investment balances and could be limited further if the quoted market
value of these securities drops below 70% of par value. On September 4, 2008, as a result of our
concerns about the fluctuating credit markets, we drew down $64.7 million under the line of credit
to increase our cash position and preserve our financial flexibility. As of June 30, 2009, there
was $64.7 million in outstanding borrowings against this line of credit.
On March 11, 2009, we notified the landlord of our Plainview, New York facility of our
intention to exercise our right to early termination of the lease pursuant to the terms of our
lease agreement. The cancellation fee is $1.0 million and the cancellation will be effective after
the expiration of the fifth anniversary of the lease commencement, February 28, 2010. This will
reduce our total minimum lease commitments by $4.7 million beginning in the fiscal year ending
December 31, 2010.
|
|
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Item 3. |
|
Quantitative and Qualitative Disclosures About Market Risk |
Interest Rate Risk
Market risk represents the risk of loss that may impact our financial position, results of
operations or cash flows due to adverse changes in financial and commodity market prices and rates.
We are exposed to market risk primarily in the area of changes in United States interest rates and
conditions in the credit markets. We do not have any material foreign currency or other derivative
financial instruments. Under our current policies, we do not use interest rate derivative
instruments to manage exposure to interest rate changes. We attempt to increase the safety and
preservation of our invested principal funds by limiting default risk, market risk and reinvestment
risk. We mitigate default risk by investing in investment grade securities.
As of June 30, 2009, our long-term investments included $111.8 million of high-grade (AAA
rated) student loan auction rate securities issued by student loan funding organizations, which
loans are 97% guaranteed under FFELP (Federal Family Education Loan Program). These ARS were
intended to provide liquidity via an auction process that resets the interest rate, generally every
28 days, allowing investors to either roll over their holdings or sell them at par. All purchases
of these auction rate securities were in compliance with our investment policy. In February 2008,
auctions for the investments in these securities failed to settle on their respective settlement
dates. Consequently, the investments are not currently liquid and we will not be able to access
these funds until a future auction of these investments is successful, the securities mature or a
buyer is found outside of the auction process. Maturity dates for these ARS investments range from
2030 to 2047 with principal distributions occurring on certain securities prior to maturity. We do
not have a need to access these funds for operational purposes for the foreseeable future. We
currently have the ability and the intent to hold these ARS investments until their fair value
recovers, until they reach maturity or until they can be sold in a market that facilitates orderly
transactions. As of June 30, 2009, we have classified $111.8 million of the ARS investment balance
as Long-term Investments because of the inability to determine when our investments in ARS would
become liquid. We have also modified our current investment strategy and increased our investments
in more liquid money market and treasury bill investments. During the year ended December 31,
2008, we determined that there was a decline in the fair value of our ARS investments of $17.6
million which we deemed as temporary and included in other comprehensive income.
The valuation of our investment portfolio is subject to uncertainties that are difficult to
predict. Factors that may impact its valuation include changes in credit ratings of the securities
as well as to the underlying assets supporting those securities, rates of default of the underlying
assets, underlying collateral value, discount rates and ongoing strength and quality of market
credit and liquidity.
If the current market conditions deteriorate further, or the anticipated recovery in market
values does not occur, we may be required in future quarters to record additional unrealized losses
in other comprehensive income (loss) or depending on the circumstances existing at the time, such
losses may be considered other than temporary and recorded as a component of net income (loss).
31
|
|
|
Item 4. |
|
Controls and Procedures |
(a) Evaluation of Disclosure Controls and Procedures
Our management, under the supervision and with the participation of our Chief Executive
Officer and our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and
procedures as of the end of the period covered by this Quarterly Report on Form 10-Q/A pursuant to
Rule 13a-15 of the Securities Exchange Act of 1934 (the Exchange Act). At the time that our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2009 was originally filed, our Chief
Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures
were effective as of June 30, 2009. In connection with the restatement described in Note 2 to
our unaudited condensed consolidated financial statements, our Chief Executive Officer and Chief
Financial Officer re-evaluated our disclosure controls and procedures and determined that there was
a material weakness in our internal control over financial reporting as of June 30, 2009 relating
to the design of the controls over the calculation of stock-based compensation expense related to
the application of the forfeiture rate. Based on this re-evaluation and because of the material
weakness, our Chief Executive Officer and Chief Financial Officer have concluded that our
disclosure controls and procedures were not effective as of June 30, 2009.
(b) Changes in Internal Control Over Financial Reporting
There were no changes in our internal controls over financial reporting (as defined in Rules
13a-15(f) and 15d-15(f) under the Exchange Act) during the second quarter of 2009 covered by this
Quarterly Report on Form 10-Q/A that have materially affected, or are reasonably likely to
materially affect, our internal controls over financial reporting.
(c) Remedial Efforts to Address the Material Weakness
Subsequent to the identification of the material weakness in our internal control over
financial reporting during the three months ended September 30, 2009, we have initiated remediation
measures to address the material weakness over the calculation of stock-based compensation expense
related to the application of the forfeiture rate which includes adding a control procedure to test
the calculation of the third-party stock based compensation system reports on a quarterly basis and
upon our upgrades to new versions of the software.
PART II. OTHER INFORMATION
|
|
|
Item 1. |
|
Legal Proceedings |
We are currently involved in certain legal proceedings, as discussed in Note 23, Commitments
and Contingencies- Legal Proceedings, to our Consolidated Financial Statements contained in Item 8
in our Annual Report on Form 10-K/A for the year ended December 31, 2008 (Annual Report) and in
Note 18, Commitments and Contingencies, to the Unaudited Condensed Consolidated Financial
Statements contained in Item 1 of Part I of this Form 10-Q/A. As of the date of this Form 10-Q and
except as disclosed in Note 23 to the Consolidated Financial Statements in our Annual Report and in
Note 18 to the Unaudited Condensed Consolidated Financial Statements in this Form 10-Q, the Company
is not a party to any other litigation or administrative proceedings that management believes will
have a material adverse effect on the Companys business, results of operations, financial
condition or cash flows, and there have been no material developments in the litigation or
administrative proceedings described in those notes.
You should consider carefully the risk factors presented in our Annual Report on Form 10-K/A
for the year ended December 31, 2008, and other information included or incorporated by reference
in this Form 10-Q/A. The risks and uncertainties described in our Annual Report on Form 10-K/A are
not the only ones we face. Additional risks and uncertainties not presently known to us or that we
deem to be currently immaterial also may impair our business operations. If any of the stated risks
actually occur, our business, financial condition and operating results could be materially
adversely affected.
|
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Item 2. |
|
Unregistered Sales of Equity Securities and Use of Proceeds |
None.
|
|
|
Item 3. |
|
Defaults Upon Senior Securities |
None.
|
|
|
Item 4. |
|
Submission of Matters to a Vote of Security Holders |
The 2009 Annual Meeting of Stockholders of the Company was convened on June 25, 2009 at 9:30
a.m. All directors to
32
be elected by the holders of common stock and Series B Convertible Participating Preferred Stock
(the Series B Preferred Stock), voting as a single class, were elected at this annual meeting for
a one-year term. Notwithstanding the above, each director shall hold office until such directors
successor is elected and qualified, or until such directors earlier death, resignation or removal.
The proposal to elect seven directors to hold office for a term through the annual meeting in 2010
and until each of their successors has been duly elected and qualified received the following
votes:
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|
|
|
|
|
|
|
|
Geraldine B. Laybourne |
|
votes for |
|
|
81,984,611 |
|
|
|
votes withheld |
|
|
50,991,592 |
|
Steven H. Berkowitz |
|
votes for |
|
|
132,154,640 |
|
|
|
votes withheld |
|
|
821,563 |
|
Joe F. Hanauer |
|
votes for |
|
|
132,140,344 |
|
|
|
votes withheld |
|
|
835,860 |
|
V. Paul Unruh |
|
votes for |
|
|
132,219,388 |
|
|
|
votes withheld |
|
|
756,815 |
|
Bruce G. Willison |
|
votes for |
|
|
130,284,960 |
|
|
|
votes withheld |
|
|
2,691,244 |
|
William E. Kelvie |
|
votes for |
|
|
130,881,093 |
|
|
|
votes withheld |
|
|
2,095,111 |
|
Kenneth K. Klein |
|
votes for |
|
|
132,189,850 |
|
|
|
votes withheld |
|
|
786,354 |
|
By virtue of its ownership of the sole outstanding share of Series A preferred stock of the
Company, the NAR has the right to elect one of the Companys directors. Effective as of the 2009
Annual Meeting of Stockholders held on June 25, 2009, the NAR elected Catherine B. Whatley to serve
on the Companys board of directors and to serve as a director until the annual meeting of
stockholders to be held in 2010 or until her earlier death, resignation or removal.
By virtue of their ownership of the outstanding shares of the Series B Preferred Stock,
Elevation Partners, L.P. and its affiliate Elevation Employee Side Fund, LLC (together Elevation)
are currently entitled to elect two directors (each, a Series B Director) pursuant to the
Certificate of Designation of the Series B Preferred Stock. Effective as of the 2009 Annual Meeting
of Stockholders held on June 25, 2009, Elevation re-elected Mr. Anderson and Mr. McNamee to serve
as the Series B Directors until the annual meeting of stockholders to be held in 2010 or until
their earlier death, resignation or removal.
The shareholders also voted on a proposal to ratify the appointment of the Companys
independent auditors, Ernst & Young, LLP, for the fiscal year ending December 31, 2009. The results
of the votes were as follows:
|
|
|
|
|
votes for |
|
|
132,748,915 |
|
votes against |
|
|
188,344 |
|
votes abstained |
|
|
38,942 |
|
|
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|
Item 5. |
|
Other Information |
None
|
|
|
Exhibits |
|
|
|
|
|
10.1
|
|
Amendment No. 1 dated as of May 6, 2009 to Loan Agreement between Move, Inc. and Citigroup Global
Markets Inc. dated as of May 8, 2008. (Incorporated by reference to Exhibit 10.4 to our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009 filed May 8, 2009.) |
|
|
|
10.2
|
|
Amendment No. 2 dated May 21, 2009 to Loan Agreement between Move, Inc. and Citigroup Global
Markets Inc. dated May 6, 2008. (Incorporated by reference to Exhibit 99.1 to our Current Report
on Form 8-K filed May 28, 2009.) |
|
|
|
10.3
|
|
Move, Inc. Offer Letter to Robert J. Krolik dated June 26, 2009. (Incorporated by reference to
Exhibit 99.2 to our Current Report on Form 8-K filed July 7, 2009.) |
|
|
|
10.4
|
|
Executive Retention and Severance Agreement between Robert J. Krolik and Move, Inc. dated June 26,
2009. (Incorporated by reference to Exhibit 99.3 to our Current Report on Form 8-K filed July 7,
2009.) |
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
33
|
|
|
Exhibits |
|
|
|
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.2
|
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. |
34
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
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|
|
|
MOVE, INC.
|
|
|
By: |
/s/ STEVEN H. BERKOWITZ
|
|
|
|
Steven H. Berkowitz |
|
|
|
Chief Executive Officer |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ ROBERT J. KROLIK
|
|
|
|
Robert J. Krolik |
|
|
|
Chief Financial Officer |
|
|
Date: November 9, 2009
35
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
10.1
|
|
Amendment No. 1 dated as of May 6, 2009 to Loan Agreement between Move, Inc. and Citigroup Global Markets
Inc. dated as of May 8, 2008. (Incorporated by reference to Exhibit 10.4 to our Quarterly Report on Form
10-Q for the quarter ended March 31, 2009 filed May 8, 2009.) |
|
|
|
10.2
|
|
Amendment No. 2 dated May 21, 2009 to Loan Agreement between Move, Inc. and Citigroup Global Markets Inc.
dated May 6, 2008. (Incorporated by reference to Exhibit 99.1 to our Current Report on Form 8-K filed May
28, 2009.) |
|
|
|
10.3
|
|
Move, Inc. Offer Letter to Robert J. Krolik dated June 26, 2009. (Incorporated by reference to Exhibit
99.2 to our Current Report on Form 8-K filed July 7, 2009.) |
|
|
|
10.4
|
|
Executive Retention and Severance Agreement between Robert J. Krolik and Move, Inc. dated June 26, 2009.
(Incorporated by reference to Exhibit 99.3 to our Current Report on Form 8-K filed July 7, 2009.) |
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.2
|
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. |
36