10-Q 1 kldi-20240331.htm 10-Q 10-Q
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

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

 

For the quarterly period ended March 31, 2024

OR

 

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 001-38789

KLDiscovery Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Delaware

61-1898603

(State or Other Jurisdiction of

Incorporation or Organization)

(I.R.S. Employer

Identification No.)

9023 Columbine Road

Eden Prairie, MN

55347

(Address of Principal Executive Offices)

(Zip Code)

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

 

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

 

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which registered

N/A

 

N/A

 

N/A

 

Indicate by check mark whether the 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 No

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes No

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

 

Large accelerated filer

Accelerated filer

 

 

 

 

Non-accelerated filer

Smaller reporting company

 

 

 

 

 

 

 

Emerging growth company

 

 

 

 

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes No

As of May 9, 2024 there were 43,086,267 shares of the registrant’s common stock, par value $0.0001 per share, outstanding.

 

 


 

Table of Contents

 

 

 

Page

Part I. Financial Information

 

1

Item 1. Financial Statements

1

Condensed Consolidated Balance Sheets

1

Condensed Consolidated Statements of Comprehensive Loss

2

Condensed Consolidated Statements of Changes in Stockholders’ Equity

3

Condensed Consolidated Statements of Cash Flows

4

Notes to Unaudited Condensed Consolidated Financial Statements

5

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

17

Item 3. Quantitative and Qualitative Disclosures Regarding Market Risk

27

Item 4. Controls and Procedures

28

Part II. Other Information

 

29

Item 1. Legal Proceedings

 

29

Item 1A. Risk Factors

 

29

Item 6. Exhibits

29

Signatures

31

 

 

 

 


 

PART I – FINANCIAL INFORMATION

 

Item 1. Financial Statements

 

KLDiscovery Inc.

Condensed Consolidated Balance Sheets

(in thousands, except share and per share amounts)

 

 

 

March 31, 2024

 

 

December 31, 2023

 

 

 

(unaudited)

 

 

 

 

Current assets

 

 

 

 

 

 

Cash and cash equivalents

 

$

18,361

 

 

$

15,351

 

Accounts receivable, net of allowance

 

 

 

 

 

 

for credit losses of $3,031 and $3,642, respectively

 

 

106,279

 

 

 

101,257

 

Prepaid expenses

 

 

18,866

 

 

 

15,787

 

Other current assets

 

 

1,806

 

 

 

1,585

 

Total current assets

 

 

145,312

 

 

 

133,980

 

Property and equipment

 

 

 

 

 

 

Computer software and hardware

 

 

61,762

 

 

 

61,731

 

Leasehold improvements

 

 

26,424

 

 

 

26,313

 

Furniture, fixtures and other equipment

 

 

2,162

 

 

 

2,262

 

Accumulated depreciation

 

 

(75,049

)

 

 

(73,045

)

Property and equipment, net

 

 

15,299

 

 

 

17,261

 

Operating lease right of use assets, net

 

 

9,045

 

 

 

10,078

 

Intangible assets, net

 

 

39,152

 

 

 

39,729

 

Goodwill

 

 

394,559

 

 

 

396,283

 

Other assets

 

 

7,539

 

 

 

8,262

 

Total assets

 

$

610,906

 

 

$

605,593

 

Current liabilities

 

 

 

 

 

 

Current portion of long-term debt, net

 

$

565,691

 

 

$

546,845

 

Accounts payable and accrued expense

 

 

31,944

 

 

 

25,957

 

Operating lease liabilities

 

 

5,416

 

 

 

5,906

 

Current portion of contingent consideration

 

 

650

 

 

 

650

 

Deferred revenue

 

 

3,094

 

 

 

3,181

 

Total current liabilities

 

 

606,795

 

 

 

582,539

 

Deferred tax liabilities

 

 

9,218

 

 

 

8,941

 

Long term operating lease liabilities

 

 

6,713

 

 

 

7,870

 

Other liabilities

 

 

2,123

 

 

 

2,176

 

Total liabilities

 

 

624,849

 

 

 

601,526

 

Commitments and contingencies

 

 

 

 

 

 

Stockholders' equity

 

 

 

 

 

 

Common stock

 

 

 

 

 

 

$0.0001 par value, 200,000,000 shares authorized, 43,086,267 issued and outstanding as of March 31, 2024 and December 31, 2023, respectively

 

 

4

 

 

 

4

 

Preferred Stock

 

 

 

 

 

 

$0.0001 par value, 1,000,000 shares authorized, zero issued
and outstanding as of March 31, 2024 and December 31, 2023, respectively

 

 

 

 

 

 

Additional paid-in capital

 

 

396,242

 

 

 

395,461

 

Accumulated deficit

 

 

(410,833

)

 

 

(393,954

)

Accumulated other comprehensive income

 

 

644

 

 

 

2,556

 

Total stockholders' equity

 

 

(13,943

)

 

 

4,067

 

Total liabilities and stockholders' equity

 

$

610,906

 

 

$

605,593

 

 

 

See Notes to Condensed Consolidated Financial Statements.

 

1


 

KLDiscovery Inc.

Condensed Consolidated Statements of Comprehensive Loss (Unaudited)

(in thousands, except share and per share amounts)

 

 

 

Three Months Ended March 31, 2024

 

 

Three Months Ended March 31, 2023

 

 

 

 

 

 

 

 

Revenues

 

$

80,172

 

 

$

90,659

 

Cost of revenues

 

 

42,068

 

 

 

43,587

 

Gross profit

 

 

38,104

 

 

 

47,072

 

Operating expenses

 

 

 

 

 

 

General and administrative

 

 

18,147

 

 

 

17,301

 

Research and development

 

 

3,356

 

 

 

3,200

 

Sales and marketing

 

 

11,268

 

 

 

10,391

 

Depreciation and amortization

 

 

4,376

 

 

 

4,813

 

Total operating expenses

 

 

37,147

 

 

 

35,705

 

Income from operations

 

 

957

 

 

 

11,367

 

Other expenses

 

 

 

 

 

 

Change in fair value of Private Warrants

 

 

32

 

 

 

(191

)

Interest expense

 

 

17,508

 

 

 

15,771

 

Loss before income taxes

 

 

(16,583

)

 

 

(4,213

)

Income tax provision

 

 

296

 

 

 

295

 

Net loss

 

$

(16,879

)

 

$

(4,508

)

Other comprehensive (loss) income, net of tax

 

 

 

 

 

 

Foreign currency translation

 

 

(1,912

)

 

 

825

 

Total other comprehensive (loss) income, net of tax

 

 

(1,912

)

 

 

825

 

Comprehensive loss

 

$

(18,791

)

 

$

(3,683

)

Net loss per share - basic and diluted

 

$

(0.39

)

 

$

(0.11

)

Weighted average shares outstanding - basic and diluted

 

 

43,086,267

 

 

 

42,920,321

 

 

See Notes to Condensed Consolidated Financial Statements.

 

2


 

KLDiscovery Inc.

Condensed Consolidated Statements of Stockholders’ Equity (Unaudited)

(in thousands, except for share amounts)

 

 

 

Common Stock Issued

 

 

Additional
paid-in

 

 

Accumulated

 

 

Accumulated
other
comprehensive

 

 

 

 

 

 

Shares

 

 

Amount

 

 

capital

 

 

deficit

 

 

(loss) income

 

 

Total

 

Balance as of December 31, 2023

 

 

43,086,267

 

 

$

4

 

 

$

395,461

 

 

$

(393,954

)

 

$

2,556

 

 

$

4,067

 

Share-based compensation

 

 

 

 

 

 

 

 

781

 

 

 

 

 

 

 

 

 

781

 

Stock issued in exchange for vested units

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign exchange translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1,912

)

 

 

(1,912

)

Net loss

 

 

 

 

 

 

 

 

 

 

 

(16,879

)

 

 

 

 

 

(16,879

)

Balance as of March 31, 2024

 

 

43,086,267

 

 

$

4

 

 

$

396,242

 

 

$

(410,833

)

 

$

644

 

 

$

(13,943

)

 

 

 

Common Stock Issued

 

 

Additional
paid-in

 

 

Accumulated

 

 

Accumulated
other
comprehensive

 

 

 

 

 

 

Shares

 

 

Amount

 

 

capital

 

 

deficit

 

 

(loss) income

 

 

Total

 

Balance as of December 31, 2022

 

 

42,920,136

 

 

$

4

 

 

$

391,977

 

 

$

(359,141

)

 

$

851

 

 

$

33,691

 

Share-based compensation

 

 

 

 

 

 

 

 

877

 

 

 

 

 

 

 

 

 

877

 

Stock issued in exchange for vested units

 

 

16,667

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign exchange translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

825

 

 

 

825

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

(4,508

)

 

 

 

 

 

(4,508

)

Balance as of March 31, 2023

 

 

42,936,803

 

 

$

4

 

 

$

392,854

 

 

$

(363,649

)

 

$

1,676

 

 

$

30,885

 

 

See Notes to Condensed Consolidated Financial Statements.

 

3


 

KLDiscovery Inc.

Condensed Consolidated Statements of Cash Flows (Unaudited)

(in thousands)

 

 

Three Months Ended March 31, 2024

 

 

Three Months Ended March 31, 2023

 

Operating activities

 

 

 

 

 

Net loss

$

(16,879

)

 

$

(4,508

)

Adjustments to reconcile net loss to net cash used in operating
   activities:

 

 

 

 

 

Depreciation and amortization

 

6,454

 

 

 

6,610

 

Paid in kind interest

 

6,184

 

 

 

5,156

 

Stock-based compensation

 

747

 

 

 

833

 

Provision for losses on accounts receivable

 

1,110

 

 

 

797

 

Deferred income taxes

 

279

 

 

 

118

 

Change in fair value of Private Warrants

 

32

 

 

 

(191

)

Changes in operating assets and liabilities:

 

 

 

 

 

Accounts receivable

 

(6,326

)

 

 

(7,186

)

Prepaid expenses and other assets

 

(2,179

)

 

 

(7,018

)

Accounts payable and accrued expenses

 

2,743

 

 

 

3,318

 

Deferred revenue

 

(66

)

 

 

(975

)

Net cash used in operating activities

 

(7,901

)

 

 

(3,046

)

Investing activities

 

 

 

 

 

Purchases of property and equipment

 

(3,011

)

 

 

(2,072

)

Net cash used in investing activities

 

(3,011

)

 

 

(2,072

)

Financing activities

 

 

 

 

 

Revolving credit facility draws

 

15,000

 

 

 

 

Payments for capital lease obligations

 

 

 

 

(533

)

Payments on long-term debt

 

(750

)

 

 

(750

)

Net cash provided by (used in) financing activities

 

14,250

 

 

 

(1,283

)

Effect of foreign exchange rates

 

(328

)

 

 

117

 

Net increase (decrease) in cash

 

3,010

 

 

 

(6,284

)

Cash at beginning of period

 

15,351

 

 

 

32,629

 

Cash at end of period

$

18,361

 

 

$

26,345

 

Supplemental disclosure:

 

 

 

 

 

Cash paid for interest

$

11,352

 

 

$

10,842

 

Net income taxes paid

$

690

 

 

$

263

 

Significant noncash investing and financing activities

 

 

 

 

 

Purchases of property and equipment in accounts payable
   and accrued expenses on the condensed consolidated balance sheets

$

276

 

 

$

751

 

 

See Notes to Condensed Consolidated Financial Statements.

 

 

4


 

KLDiscovery Inc.

Notes to Condensed Consolidated Financial Statements (Unaudited)

For the three months ended March 31, 2024 and 2023

Note 1 – Organization, business and summary of significant accounting policies

Organization

KLDiscovery Inc. (the “Company,” “we” or “us”) is a leading global provider of eDiscovery, information governance and data recovery solutions to corporations, law firms, insurance companies and individuals in 17 countries around the world. We provide technology solutions to help our clients solve complex data challenges. The Company’s headquarters are located in Eden Prairie, Minnesota. The Company has 26 locations in 17 countries, as well as 9 data centers and 13 data recovery labs globally.

 

The Company was originally incorporated under the name Pivotal Acquisition Corp. (“Pivotal”) as a blank check company on August 2, 2018 under the laws of the State of Delaware for the purpose of entering into a merger, capital stock exchange, stock purchase, reorganization or similar business combination with one or more businesses or entities.

 

On December 19, 2019 (the “Closing Date”), Pivotal acquired the outstanding shares of LD Topco, Inc. via a reverse capitalization (the “Business Combination”) and was renamed KLDiscovery Inc.

Principles of consolidation

The accompanying condensed consolidated financial statements are prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”). The accompanying condensed consolidated financial statements include the accounts of KLDiscovery and all its subsidiaries. All significant intercompany accounts and transactions were eliminated upon consolidation. The accompanying condensed consolidated financial statements should be read in conjunction with the financial and risk factor information included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, which we previously filed with the Securities and Exchange Commission (the “SEC”).

Liquidity and going concern evaluation

Under Financial Accounting Standards Board ("FASB") Accounting Standards Codification (“ASC”) 205-40, Going Concern, the Company is required to evaluate each reporting period, including interim periods, whether there is substantial doubt regarding its ability to meet its obligations when they come due within one year from the financial statement issuance date.

 

On February 8, 2021, certain subsidiaries of the Company (the “Loan Parties”), entered into a new secured credit agreement (the “2021 Credit Agreement”) and on March 3, 2023, the Loan Parties entered into the First Amendment to the 2021 Credit Agreement. On March 8, 2024, the Loan Parties entered into the Second Amendment to the Amended 2021 Credit Agreement (as amended, the “Amended 2021 Credit Agreement”) which provides that the Loan Parties may deliver to the administrative agent annual, audited financial statements of the Company accompanied by a report and opinion of the Company's independent certified public accountant that is subject to a “going concern” qualification if such qualification results from an upcoming maturity date under any Indebtedness (as defined in the Amended 2021 Credit Agreement). In addition, on December 19, 2019, the Company issued Convertible Debentures, which mature in 2024, in an aggregate principal amount of $200 million (the “Debentures” or the “Convertible Debentures”).

 

The Amended 2021 Credit Agreement provides for (i) initial term loans in an aggregate principal amount of $300 million (the “Initial Term Loans”), (ii) delayed draw term loans in an aggregate principal amount of $50 million (the “Delayed Draw Term Loans”), and (iii) revolving credit loans in an aggregate principal amount of $40 million, with a letter of credit sublimit of $10 million (the "Revolving Credit Loans”). The Delayed Draw Term Loans were available to the Loan Parties at any time prior to February 8, 2023 and are no longer available under the Amended 2021 Credit Agreement.

 

The Initial Term Loans and Revolving Credit Loans are each scheduled to mature on February 8, 2026, unless the Convertible Debentures are outstanding six months prior to the December 19, 2024 maturity date thereof, in which case the Amended 2021 Credit Agreement matures on June 19, 2024.

 

The Company has historically incurred losses and in certain years cash flows have been negative. As of March 31, 2024, the Company’s cash balance was $18.4 million and the Company’s debt balance was $569.6 million, including a balance of $263.6 million under the Convertible Debentures, a balance of $291.0 million in Initial Term Loans under the Amended 2021 Credit Agreement and a balance of $15.0 million in Revolving Credit Loans. As of March 31, 2024, the Company does not have the cash on hand, nor does it expect to generate sufficient liquidity from future cash flows, to repay the Convertible Debentures by June 19, 2024 and as such, the Initial Term Loans debt of $291.0 million, the Convertible Debentures debt of $263.6 million and the Revolving Credit Loans debt of $15.0 million are included in the current portion of long-term debt in the Condensed Consolidated

 

5


 

Balance Sheet at March 31, 2024. As of March 31, 2024, the Company does not have sufficient cash on hand, and does not expect to generate sufficient liquidity from forecasted future cash flows to repay its current obligations at their respective maturity dates.

 

The Company is reviewing potential alternatives, including renegotiating the terms of the Convertible Debentures and/or the Amended 2021 Credit Agreement and identifying alternative sources for cash or additional financing. The Company's current debt structure, however, raises substantial doubt regarding the Company’s ability to continue as a going concern because other alternatives may not be achievable on favorable terms and conditions or at all. The Company’s condensed financial statements do not include any adjustments that may result from the outcome of this uncertainty and have been prepared assuming the Company will continue as a going concern.

Use of estimates

The preparation of condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts and disclosures in the condensed consolidated financial statements. Although actual results could differ from those estimates, management does not believe that such differences would be material.

 

Significant estimates include, but are not limited to, the allowance for doubtful accounts, determining the fair values of assets acquired and liabilities assumed, including the fair value of Private Warrants (as defined in Note 2), the determination of the incremental borrowing rate used to measure right-of-use assets and liabilities, the recoverability and useful lives of property and equipment, intangible assets, and other long-lived assets, the evaluation of goodwill for impairment, the valuation and realization of deferred income taxes, the fair value of the Company’s common stock, stock based compensation equity awards and acquisition related contingent consideration.

Segments, concentration of credit risk, major customers and liquidity

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

 

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

 

With respect to accounts receivable, the Company performs ongoing evaluations of its customers, generally grants uncollateralized credit terms to its customers, and maintains an allowance for doubtful accounts based on historical experience and management’s expectations of future losses. As of and for the three months ended March 31, 2024 and 2023, the Company did not have any single customer that represented five percent (5%) or more of its consolidated revenues or seven percent (7%) of its accounts receivable. The Company believes that the geographic and industry diversity of the Company’s customer base throughout the U.S. and internationally minimizes the risk of incurring material losses due to concentrations of credit risk. The Company’s foreign revenues, principally from businesses in the UK and Germany, totaled approximately $12.9 million and $12.6 million for the three months ended March 31, 2024 and 2023, respectively. The Company’s long-lived assets in foreign countries, principally in the UK and Germany, totaled approximately $26.4 million and $27.0 million as of March 31, 2024 and December 31, 2023, respectively.

 

As disclosed in Note 4, the Company has significant outstanding debt that comes due in 2024. While the Company is exploring various options to refinance the debt, new financings may not be available to the Company on commercially acceptable terms, or at all.

Foreign currency

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

 

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

Cash and cash equivalents

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

 

6


 

Accounts receivable and allowance for credit losses

The Company’s accounts receivable are recorded at amortized cost less an allowance for credit losses not expected to be recovered. The measurement and recognition of credit losses involves the use of judgment and represents management’s estimate of expected lifetime credit losses based on historical experience and trends, current conditions and reasonable and supportable forecasts. Management’s assessment of expected credit losses includes consideration of current and expected economic, market and industry factors affecting the Company’s customers, including their financial condition; the aging of account balances; historical credit loss experience; customer concentrations; customer credit-worthiness; and other sources of payment, among other factors. Expected credit losses are recorded as "General and administrative" expenses in the Condensed Consolidated Statements of Comprehensive Loss.

 

A rollforward of the allowance for credit losses is presented below (in thousands):

 

 

 

Three Months Ended March 31, 2024

 

 

Three Months Ended March 31, 2023

 

Beginning balance

 

$

3,642

 

 

$

5,403

 

Provision for credit losses

 

 

1,110

 

 

 

797

 

Write-offs, net of recoveries (1)

 

 

(1,721

)

 

 

(1,953

)

Ending balance

 

 

3,031

 

 

 

4,247

 

_______________________

(1)
Recoveries were not material for the periods presented. As such, the Company presented write-offs, net of recoveries.

Fixed Assets

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

 

Computer software and hardware

 

3 to 5 years

Leasehold improvements

 

Shorter of lease term or useful life

Furniture, fixtures and other equipment

 

3 to 5 years

 

Gains or losses on disposals are included in results of operations at amounts equal to the difference between the net book value of the disposed assets and the proceeds received upon disposal. Costs for replacements and betterments are capitalized, while the costs of maintenance and repairs are expensed as incurred. Finance leases right of use assets are included in Property and equipment and are stated at the present value of minimum lease payments and subsequently amortized using the straight-line method over the earlier of the end of the asset's useful life or the end of the lease term.

 

Depreciation expense totaled $2.7 million and $2.3 million for the three months ended March 31, 2024 and 2023, respectively, and includes amortization of assets recorded under finance leases. For additional information on leases, refer to Note 3 – Leases.

Internal-use software development costs

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

 

Capitalized software costs are reflected as part of “Intangible assets, net” in the Company’s Condensed Consolidated Balance Sheets and totaled $20.0 million and $18.1 million, net of accumulated amortization, as of March 31, 2024 and December 31, 2023, respectively.

 

The Company also enters into certain cloud-based software hosting arrangements that are accounted for as service contracts. For internal use software obtained through a hosting arrangement that is in the nature of a service contract, the Company incurs certain implementation costs such as integrating, configuring, and software customization, which are consistent with costs incurred during the application development stage for on-premise software. The Company applies the same guidance to determine costs that are eligible for capitalization. For these arrangements, the Company amortizes the capitalized development costs straight-line over the fixed, non-cancellable term of the associated hosting arrangement plus any reasonably certain renewal periods. The Company also applies the same impairment model to both internal-use software and capitalized implementation costs in a software hosting arrangement that is in the nature of a service contract. Capitalized implementation costs of cloud-based hosting arrangements are classified as part of Prepaid Expenses and Other Assets, totaling $2.5 million and $4.9 million net of accumulated amortization,

 

7


 

respectively, as of March 31, 2024, and $1.8 million and $5.5 million net of accumulated amortization, respectively, as of December 31, 2023. Amortization of capitalized implementation costs related to hosting arrangements totaled $0.5 million for the periods ended March 31, 2024 and 2023.

Intangible assets and other long-lived assets

The Company evaluates the recoverability of its long-lived assets, including finite-lived intangible assets, for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of any asset to future net undiscounted cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured as the difference between the fair value of the asset compared to its carrying amount.

 

Amortization expense totaled $3.3 million and $3.9 million for the three months ended March 31, 2024 and 2023, respectively; $1.6 million and $1.4 million of which, respectively, was classified as part of the “Cost of revenues” line in the Company’s Condensed Consolidated Statements of Comprehensive Loss.

Goodwill

Goodwill represents the excess of the total consideration paid over identified intangible and tangible assets of the Company and its acquired businesses. The Company tests its goodwill for impairment at the reporting unit level on an annual basis on October 1, and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying value. These events or circumstances could include a significant change in the business climate, legal factors, operating performance indicators, competition, or sale or disposition of a significant portion of a reporting unit. As of the October 1, 2023 testing date, the Company determined there is one reporting unit.

 

Management concluded that there was no impairment of goodwill and intangible assets during the three months ended March 31, 2024. Our goodwill balance is subject to change due to fluctuations in foreign exchange rates.

Debt issuance costs

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

Revenue recognition

Revenues are recognized when the Company satisfies a performance obligation by transferring goods or services promised in a contract to a customer, in an amount that reflects the consideration that the Company expects to receive in exchange for those services. Performance obligations in the Company's contracts represent distinct or separate service streams that the Company provides to its customers.

 

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

 

The Company provides Legal Technology services to its clients through several technology solutions including Nebula Ecosystem (“Nebula”) its internally developed end-to-end fully integrated proprietary solution. The Company also provides Data Recovery solutions.

 

8


 

 

The following table summarizes revenue from contracts with customers for the three months ended March 31, 2024 and 2023 (in thousands):

 

 

 

2024 Q1

 

 

2023 Q1

 

 

 

Technology Solutions

 

Nebula

 

Consolidated

 

 

Technology Solutions

 

Nebula

 

Consolidated

 

Legal Technology

 

$

58,152

 

$

14,834

 

$

72,986

 

 

$

73,834

 

$

8,172

 

$

82,006

 

Data Recovery

 

 

7,186

 

 

 

 

7,186

 

 

 

8,653

 

 

 

 

8,653

 

Total revenue

 

$

65,338

 

$

14,834

 

$

80,172

 

 

$

82,487

 

$

8,172

 

$

90,659

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Performance Obligations and Timing of Revenue Recognition

The Company primarily sells services and products that fall into the categories discussed below. Each category contains one or more performance obligations that are either (1) capable of being distinct (i.e., the customer can benefit from the product or service on its own or together with readily available resources, including those purchased separately from us) and distinct within the context of the contract (i.e., separately identified from other promises in the contract) or (2) a series of distinct products or services that are substantially the same and have the same pattern of transfer to the customer.

 

(1)
Legal Technology, including Nebula and the Company's expansive suite of technology solutions, such as its end-to-end eDiscovery technology solutions, managed review solutions, collections, processing, analytics, hosting, production and professional services, and
(2)
Data Recovery solutions, which provides data restoration, data erasure and data management services.

The Company generates the majority of its revenues by providing Legal Technology services to its clients. Most of the Company’s eDiscovery service contracts are time and materials types of arrangements.

Time and materials arrangements are based on units of data stored or processed. Unit-based revenues are recognized as services are provided, based on either the amount of data stored or processed, the number of concurrent users accessing the information, or the number of pages or images processed for a client, at agreed upon per unit rates. We recognize revenues for these arrangements at a point in time utilizing a right-to-invoice practical expedient because we have a right to consideration for services completed to date.

Certain other eDiscovery contracts are subscription-based, fixed-fee arrangements, which have tiered pricing based on the quantity of data hosted. For a fixed monthly fee, our clients receive a variety of optional eDiscovery services, which are included in addition to the data hosting. The Company recognizes revenues for these arrangements at a point in time based on predetermined monthly fees as determined in our contractual agreements, utilizing a right-to-invoice practical expedient because the Company has a right to consideration for services completed to date.

Other eDiscovery agreements are time and material arrangements that require the client to pay us based on the number of hours worked at contractually agreed-upon rates. The Company recognizes revenues for these arrangements at a point in time based on hours incurred and contracted rates utilizing a right-to-invoice practical expedient because it has a contractual right to consideration for services completed to date.

Data recovery services are mainly fixed fee arrangements requiring the client to pay a pre-established fee in exchange for the successful completion of a data recovery on a predetermined device. For the recovery services performed by the Company’s technicians, the revenue is recognized at a point in time, when the recovered data is sent to the customer.

Data erasure services are fixed fee arrangements for which revenue is recognized at a point in time, when the certificate of erasure is sent to the customer.

The Company offers term license subscriptions to Ontrack PowerControls software to customers with on-premises installations of the software pursuant to contracts that are historically one to four years in length. The term license subscriptions include maintenance and support, as well as access to future software upgrades and patches. The license and the additional support services are deemed to be one performance obligation, and thus revenue for these arrangements is recognized ratably over the term of the agreement.

Net loss per common share

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

 

9


 

 

Accounting standards not yet adopted

 

In November 2023, the FASB issued ASU No. 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures (ASU 2023-07). This ASU requires enhanced disclosures about significant segment expenses and other segment items and requires companies to disclose all annual disclosures about segments in interim periods. This ASU also requires public entities with a single reportable segment to provide all the disclosures required by the amendments in this ASU and all existing segment disclosures in Topic 280. The amendments in this ASU are intended to improve financial reporting by requiring disclosure of incremental segment information on an annual and interim basis for all public entities to enable investors to develop more decision-useful financial analyses. The amendments in this ASU are effective for fiscal years beginning after December 15, 2023, and interim periods within fiscal years beginning after December 15, 2024. Early adoption is permitted and the amendments should be applied retrospectively to all periods presented. The Company is currently evaluating the impact of the new guidance on the Company's consolidated financial statements and related disclosures.

 

In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures (ASU 2023-09), to enhance the transparency and decision usefulness of income tax disclosures, primarily through standardization and disaggregation of rate reconciliation categories and income taxes paid by jurisdiction. This ASU is effective for the Company for annual periods beginning after December 15, 2025. The Company does not expect ASU 2023-09 to have a material impact on the Company’s consolidated financial statements.

Note 2 – Fair value measurements

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

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

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

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

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

 

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

 

The Company estimates the fair value of contingent purchase consideration based on the present value of the consideration expected to be paid during the remainder of the earn-out period, based on management’s assessment of the acquired operations’ forecasted earnings. This fair value measurement is based on significant inputs not observed in the market and thus represents a Level 3 measurement. The fair value of future expected acquisition-related contingent purchase consideration obligations was $1.3 million at each of March 31, 2024 and December 31, 2023, and is classified as Current portion of contingent consideration and as part of long term "Other liabilities" in the condensed Consolidated Balance Sheets.

 

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

 

The Company has determined that the 6,350,000 warrants to purchase Common Stock (the “Private Warrants”) issued in connection with the consummation of the Business Combination in December 2019 should be accounted for as liabilities in accordance with ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity. The warrant liabilities are measured at fair value at

 

10


 

inception and on a recurring basis, with changes in fair value presented within change in fair value of Private Warrants in the Condensed Consolidated Statements of Comprehensive Loss. The fair value of the Private Warrants was $0.1 million at each March 31, 2024 and December 31, 2023, respectively.

 

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

Note 3 – Leases

The Company’s operating leases are primarily for data centers, office space and certain equipment, expiring in various years through 2029. Certain leases contain annual rent escalation clauses.

 

Maturities of lease liabilities as of March 31, 2024 were as follows:

 

 

Operating
Leases

 

Remainder of 2024

 

$

5,179

 

2025

 

 

4,107

 

2026

 

 

2,453

 

2027

 

 

802

 

2028

 

 

702

 

Thereafter

 

 

269

 

Total undiscounted lease payments

 

$

13,512

 

Less: Interest

 

 

(1,383

)

Present value of lease liabilities

 

$

12,129

 

 

 

Note 4 – Long term debt

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

 

 

 

March 31, 2024

 

 

December 31, 2023

 

Convertible Debenture notes due 2024

 

 

263,564

 

 

 

260,926

 

Amended 2021 Credit Agreement due 2026 (1)

 

 

291,000

 

 

 

291,750

 

Revolving Credit Loans

 

 

15,000

 

 

 

-

 

Total debt

 

 

569,564

 

 

 

552,676

 

Less: unamortized original issue discount

 

 

(3,530

)

 

 

(5,254

)

Less: unamortized debt issuance costs

 

 

(343

)

 

 

(577

)

Total debt, net

 

 

565,691

 

 

 

546,845

 

Current portion of debt, net

 

 

565,691

 

 

 

546,845

 

_______________________

(1)
The Amended 2021 Credit Agreement matures on February 8, 2026, unless the Debentures are outstanding six months prior to the December 19, 2024 maturity date thereof, in which case the Amended 2021 Credit Agreement matures on June 19, 2024. As of March 31, 2024, the Company does not anticipate repaying the Convertible Debentures by June 19, 2024 and as such, the Term Loan debt of $291.0 million, the Convertible Debentures debt of $263.6 million and the Revolving Credit Loans debt of $15.0 million are included in the current portion of long-term debt.

Amended 2021 Credit Agreement

On February 8, 2021, the Loan Parties, entered into the 2021 Credit Agreement. Proceeds were used to pay in full all outstanding loans and terminate all lending commitments under the previously outstanding 2016 Credit Agreement.

 

On March 3, 2023, the Loan Parties entered into the First Amendment to the 2021 Credit Agreement. The First Amendment to the 2021 Credit Agreement provides for the revision of the benchmark interest rate from LIBOR to the secured overnight financing rate, (“SOFR”). At March 31, 2023, all outstanding indebtedness under the Amended 2021 Credit Agreement automatically converted from a LIBOR based loan to the new SOFR based loan at the end of the then-current applicable Interest Period. Additionally, the First Amendment to the 2021 Credit Agreement provides for the addition of the Term SOFR Adjustment of 0.10%, based on the term of the applicable Interest Period, to be added to the Applicable Rate for both SOFR Loans and Base Rate Loans (capitalized terms as defined in the Amended 2021 Credit Agreement).

 

On March 8, 2024, the Loan Parties entered into the Second Amendment to the 2021 Credit Agreement, which provides that the Loan Parties may deliver to the administrative agent annual, audited financial statements of the Company accompanied by a report and opinion of the Company's independent certified public accountant that is subject to a “going concern” qualification if such qualification results from an upcoming maturity date under any Indebtedness (as defined in the Amended 2021 Credit Agreement).

 

11


 

 

The Amended 2021 Credit Agreement provides for (i) Initial Term Loans in an aggregate principal amount of $300 million, (ii) Delayed Draw Term Loans in an aggregate principal amount of $50 million, and (iii) Revolving Credit Loans in an aggregate principal amount of $40 million, with a letter of credit sublimit of $10 million. The Delayed Draw Term Loans were available to the Loan Parties at any time prior to February 8, 2023, subject to certain conditions. As of March 31, 2024, there were no outstanding Delayed Draw Term Loans and they are no longer available under the Amended 2021 Credit Agreement.

 

The Initial Term Loans bear, and while they were available, the Delayed Draw Term Loans bore, interest, at the Loan Parties’ option, at the rate of (x) with respect to SOFR Rate Loans, the Term SOFR Rate with a 1.00% floor, plus 6.50% per annum, plus the Term SOFR Adjustment of 0.10% or (y) with respect to Base Rate Loans, the Base Rate plus 5.50% per annum, plus the Term SOFR Adjustment of 0.10%.

 

The Revolving Credit Loans bear interest, at our option, at the rate of (x) with respect to SOFR Rate Loans, the Adjusted SOFR Rate plus 4.00% per annum, or (y) with respect to Base Rate Loans, the Base Rate plus 3.00% per annum. On March 31, 2024, the balance due under the Revolving Credit Loans was $15.0 million with an interest rate of 9.42152%. The Initial Term Loans amortize at a rate of 1.00% of the aggregate principal amount of Initial Term Loans outstanding, payable in consecutive quarterly installments of $0.8 million, beginning on June 30, 2021. On March 31, 2024, the balance due under the Initial Term Loans was $291.0 million with an interest rate of 5.30942% plus an Adjusted Term SOFR Rate of 6.60%.

 

The Initial Term Loans and Revolving Credit Loans are each scheduled to mature on February 8, 2026, unless the Convertible Debentures are outstanding six months prior to the December 19, 2024 maturity date thereof, in which case the Amended 2021 Credit Agreement matures on June 19, 2024. The Initial Term Loans may be voluntarily repaid at any time, but may be subject to a prepayment premium. The Initial Term Loans are required to be repaid under certain circumstances, including with Excess Cash Flow (as defined in the Amended 2021 Credit Agreement), the proceeds of an Asset Sale or Casualty Event (each as defined in the Amended 2021 Credit Agreement) and the proceeds of certain refinancing indebtedness.

 

The obligations under the Amended 2021 Credit Agreement are secured by substantially all of the Loan Parties’ assets. The Amended 2021 Credit Agreement contains customary affirmative and negative covenants as well as a financial maintenance covenant that requires the Loan Parties to maintain a First Lien Net Leverage Ratio (as defined in the Amended 2021 Credit Agreement) of less than or equal to 7.00 to 1.00, tested at the end of each fiscal quarter. The Company was in compliance with all Amended 2021 Credit Agreement covenants as of March 31, 2024.

Revolving Credit Loans

The Amended 2021 Credit Agreement also provides for an unfunded revolver commitment for borrowing up to $40.0 million. As of March 31, 2024, there was $24.4 million available capacity for borrowing under the Revolving Credit Loans due to a $15.0 million outstanding balance and $0.6 million of letters of credit outstanding (See Note 8 – Commitments and Contingencies).

Convertible Debentures

On December 19, 2019, the Company issued Convertible Debentures, which mature in 2024, in an aggregate principal amount of $200 million. At March 31, 2024 and December 31, 2023, the balance due under the Convertible Debentures was $263.6 million and $260.9 million, respectively.

 

The Debentures will mature on December 19, 2024 unless earlier converted, redeemed or repurchased, and bear interest at an annual rate of 4.00% in cash, payable quarterly, and 4.00% in kind, accrued quarterly, on the last business day of March, June, September and December. In addition, on each anniversary of December 19, 2019 (the "Closing Date"), the Company will increase the principal amount of the Debentures by an amount equal to 3.00% of the original aggregate principal amount of the Debentures outstanding (subject to reduction for any principal amount repaid). Non-payment of, and certain failures to comply with the covenants under, the Amended 2021 Credit Agreement also constitute events of default under the Debentures. The additional payment will accrue from the last payment date for the additional payment (or the Closing Date if no prior payment has been made), and will also be payable at maturity, upon conversion and upon an optional redemption.

 

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

 

The Debentures are convertible into shares of common stock at the option of the Debenture holders at any time and from time to time at a price of $18 per share, subject to certain adjustments. However, in the event the Company elects to redeem any Debentures, the holders have a right to purchase common stock from the Company in an amount equal to the amount redeemed at the conversion price.

 

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

 

12


 

Debentures to be due and payable immediately. As of March 31, 2024, the Company was in compliance with all Debenture covenants.

Note 5 – Equity incentive plan

On December 19, 2019, the Company adopted the 2019 Incentive Award Plan (the “2019 Plan”) under which eligible employees, officers, directors and consultants of the Company may be granted incentive or non-qualified stock options, restricted stock, restricted stock units ("RSUs"), or other stock-based awards, including shares of Common Stock. Pursuant to the 2019 Plan, the number of shares of Common Stock available for issuance under the 2019 Plan automatically increases on each January 1 (commencing with January 1, 2021) until and including January 1, 2029, by an amount equal to the lesser of: (a) 5% of the shares of Common Stock outstanding on the final day of the immediately preceding calendar year and (b) such smaller number of shares as is determined by our Board of Directors (the “Board”). The Compensation Committee of the Board approved an increase to the share reserve as set out in the 2019 Plan in the amount of 2,416,007 shares and 2,154,313 shares in April 2023 and April 2024, respectively. As of March 31, 2024, 14,176,685 shares of Common Stock were reserved under the 2019 Plan, of which 2,771,329 shares of Common Stock remained available for issuance.

Stock option activity

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

 

Description

 

Options
Outstanding

 

 

Weighted
Average
Exercise
Price

 

 

Weighted
Average
Remaining
Contractual
Term (Years)

 

 

Aggregate
Intrinsic
Value (1)

 

Options outstanding, December 31, 2023

 

 

6,529,092

 

 

$

6.88

 

 

 

6.9

 

 

$

 

Granted

 

 

 

 

 

 

 

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

 

 

 

 

 

Forfeited

 

 

 

 

 

 

 

 

 

 

 

 

Expired

 

 

(63,032

)

 

 

8.20

 

 

 

 

 

 

 

Options outstanding, March 31, 2024

 

 

6,466,060

 

 

$

6.86

 

 

 

6.9

 

 

$

 

Options vested and exercisable, March 31, 2024

 

 

5,097,383

 

 

$

8.05

 

 

 

6.4

 

 

$

 

Options vested and expected to vest, March 31, 2024

 

 

6,466,060

 

 

$

6.86

 

 

 

6.9

 

 

$

 

_______________________________

(1)
Aggregate intrinsic value (in thousands) represents the difference between the estimated fair value of the underlying Common Stock and the exercise price of outstanding in-the-money options.

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

 

 

 

2019 Plan

 

 

 

Three Months Ended March 31, 2024

 

 

Three Months Ended March 31, 2023

 

Total fair value of options vested

 

 

1,440

 

 

 

1,465

 

Time-based vesting stock options

Time-based vesting stock options generally vest over a three-year period, are subject to graded vesting schedules, and expire ten years from the date of grant or within 90 days of termination of employment. No time-based vesting stock options were granted by the Company during the three months ended March 31, 2024 and 2023, respectively.

 

For the three months ended March 31, 2024 and 2023, the Company recognized $0.7 million and $0.8 million of stock-based compensation expense, respectively, in connection with time-based vesting stock options. As of March 31, 2024 and 2023, there was $1.4 million and $2.4 million of unrecognized stock-based compensation expense, respectively, related to unvested time-based vesting stock options that is expected to be recognized over a weighted-average period of 4.1 and 1.7 years, respectively.

 

13


 

Stock Option Valuation

The Company uses valuation models to value both time and performance-based vesting stock options. The Company did not grant any time or performance-based vesting stock options during the three months ended March 31, 2024 and 2023, respectively.

Stock-based compensation expense

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

 

 

 

Three Months Ended March 31, 2024

 

 

Three Months Ended March 31, 2023

 

Cost of revenues

 

$

196

 

 

$

227

 

General and administrative

 

 

388

 

 

 

443

 

Research and development

 

 

87

 

 

 

76

 

Sales and marketing

 

 

76

 

 

 

87

 

Total

 

$

747

 

 

$

833

 

 

Restricted stock units

Periodically, the Company granted RSUs to certain employees which are subject to certain vesting criteria. These RSUs become eligible to begin vesting upon a liquidity event (as defined in the award agreements governing the RSUs). The amount and timing of the vesting of the RSUs depends on the type and timing of the liquidity event as it relates to the Closing Date. Generally, a portion of the RSUs were scheduled to first vest upon the occurrence of the liquidity event and the remainder were scheduled to vest in up to three annual installments thereafter. Because no liquidity event occurred before the third anniversary of the Closing Date, all RSUs are scheduled to vest immediately upon a future liquidity event.

 

The Company determined the achievement of a liquidity event was not probable and therefore no expense has been recorded related to the RSU awards that vest solely upon a liquidity event.

 

Performance based restricted stock units

 

During 2023 and 2022, the Company granted 369,056 and 463,000 performance based RSUs, respectively, to certain employees, 50% of which vest based on the achievement of annual consolidated revenue targets and 50% of which vest based on the achievement of certain annual Nebula revenue targets. These units will vest over three annual installments based on the achievement of the annual consolidated revenue and Nebula revenue performance conditions and are not subject to any liquidity event vesting condition. In the event that the performance conditions are not met in the first or second year, all units granted will vest in the third year if the cumulative performance conditions are met at that time. The grant of awards with performance conditions supports the Company’s goal of aligning executive incentives with long-term stockholder value and ensuring that executive officers have a continuing stake in the long-term success of the Company.

 

The Company determined the three-year achievement of the overall Company revenue and Nebula revenue targets was probable and incurred $0.4 million and $0.2 million of stock-based compensation expense for the three months ended March 31, 2024 and 2023, respectively, related to the performance-based RSUs granted in 2023 and 2022.

 

The vesting of the RSUs held by a grantee is generally subject to his or her continued employment with the Company.

Time-based restricted stock units

The Company grants certain non-employee directors time-based RSUs in satisfaction of their annual retainer payments. These RSUs vest over a one-year or three-year period. During the three months ended March 31, 2024, the Company did not grant any time-based RSUs to its non-employee directors. During the three months ended March 31, 2023, the Company granted 151,515 time-based RSUs to its non-employee directors. During the three months ended March 31, 2024 and 2023, the Company recognized the grant-date fair value of the RSUs granted to non-employee directors of $0.2 million and $0.2 million as stock-based compensation expense, respectively.

 

14


 

The following table summarizes the Company’s RSU activity for performance based RSUs awarded to employees and for time-based RSUs granted to non-employee directors under the 2019 Plan:

 

Description

 

RSUs
Outstanding

 

Outstanding at December 31, 2023

 

 

2,429,289

 

Granted

 

 

 

Vested - non-employee director awards

 

 

(50,505

)

Forfeited

 

 

(1,737

)

Expired

 

 

 

Outstanding at March 31, 2024

 

 

2,377,047

 

 

Note 6 – Equity

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

 

There were no stock issuances during the three months ended March 31, 2024 and 2023, respectively, other than pursuant to stock option exercises and vesting of non-employee director RSUs.

Warrants

On the Closing Date, in connection with the consummation of the Business Combination, the Company assumed (i) 23,000,000 warrants (the “Public Warrants”) to purchase shares of Common Stock and (ii) 6,350,000 Private Warrants (together with the Public Warrants, the “Warrants”). The Public Warrants qualify for equity accounting as these warrants do not fall within the scope of ASC 480, Distinguishing Liabilities from Equity.

 

Each warrant entitles the holder to purchase one share of Common Stock for $11.50 per share. If exercised by the initial purchaser of the Private Warrant or certain permitted transferees, the purchase can occur on a cashless basis. The Warrants will expire on December 19, 2024 or earlier upon redemption or liquidation.

 

If the reported last sale price of the Company's common stock equals or exceeds $18.00 per share for any 20 trading days within a 30-trading day period ending three business days before the Company sends the notice of redemption to the warrant holders, the Company may redeem all the Public Warrants at a price of $0.01 per warrant upon not less than 30 days’ prior written notice.

 

If the Company calls the Public Warrants for redemption, management will have the option to require all holders that wish to exercise the Public Warrants to do so on a cashless basis. The exercise price and number of shares of common stock issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of a stock dividend, or recapitalization, reorganization, merger or consolidation. The warrants will not be adjusted for the issuance of common stock at a price below its exercise price. The Company will not be required to net cash settle the warrants.

 

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

Shares Subject to Forfeiture

On December 19, 2019, in connection with the consummation of the Business Combination, 550,000 shares of common stock held by Pivotal Acquisition Holdings LLC were subjected to an additional lockup that will be released only if the last reported sale price of the common stock equals or exceeds $15.00 for a period of 20 consecutive trading days during the five-year period following the Closing Date. If the last reported sale price of common stock does not equal or exceed $15.00 within five years from the Closing Date, such shares will be forfeited to the Company for no consideration. These shares are reported as outstanding in the Company’s financial statements and continue to be subject to the additional lockup as of March 31, 2024.

 

Note 7 – Income taxes

A valuation allowance has been established against the Company’s net U.S. federal and state deferred tax assets, including net operating loss (“NOL”) carryforwards. As a result, the Company’s income tax provision is primarily related to foreign tax activity

 

15


 

and U.S. deferred taxes for tax deductible goodwill and other indefinite-lived liabilities. During the three months ended March 31, 2024 and 2023, the Company recorded an income tax provision of $0.3 million and $0.3 million, respectively, resulting in an effective tax rate of (1.8)% and (7.1)%, respectively. These effective tax rates differ from the U.S. federal statutory rate primarily due to the effects of foreign tax rate differences, U.S. state and local income taxes and the valuation allowance against our domestic deferred tax assets.


Historically, the Company calculated the provision for income taxes during interim reporting periods by applying an estimate of the annual effective rate for the full fiscal year to the year-to-date ordinary income or loss, excluding unusual or infrequently occurring discrete items. For the quarter ending March 31, 2024, the Company determined that the year-to-date actual effective tax rate represented the best estimate due to the challenges in forecasting nonrecurring costs and other items related to the renegotiation of the term of the Convertible Debentures and Amended 2021 Credit Agreement.

Note 8 – Commitments and contingencies

The Company is involved in various legal proceedings, which arise occasionally in the normal course of business. While the ultimate results of such matters generally cannot be predicted with certainty, management does not expect such matters to have a material effect on the financial position and results of operations as of March 31, 2024.

 

The Company has two letters of credit totaling $0.6 million as of March 31, 2024 as additional security for lease guarantees related to leased properties.

Note 9 – Related parties

As of March 31, 2024, $131.8 million including paid-in kind interest of the Company's Debentures was owed to affiliates of MGG Investment Group, which is an affiliate of a director of the Company. For the three months ended March 31, 2024 and 2023, the Company recognized $3.8 million and $3.6 million in interest expense, respectively, related to the Debentures owned by affiliates of the MGG Investment Group.

Note 10 – Subsequent events

The Company has evaluated subsequent events since the date on which these financial statements were issued through the date on which this Quarterly Report on Form 10-Q was filed and did not identify any additional items for disclosure.

 

16


 

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

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This Quarterly Report on Form 10-Q, including information incorporated herein by reference, contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Exchange Act of 1934, as amended, that are not historical facts. This includes, without limitation, statements regarding our financial position, business strategy and management’s plans and objectives for future operations. These statements constitute projections, forecasts and forward-looking statements, and are not guarantees of performance. Such statements can be identified by the fact that they do not relate strictly to historical or current facts. When used in this Quarterly Report on Form 10-Q, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. When we discuss our strategies or plans, we are making projections, forecasts or forward-looking statements. Such statements are based on the beliefs of, as well as assumptions made by and information currently available to, our management.

 

All forward-looking statements are subject to risks and uncertainties that may cause actual results to differ materially from those that we expect, including:

consequences of our substantial levels of indebtedness, including the pending maturity and potential acceleration thereof in June 2024, and our ability to repay or renegotiate our debt obligations as they become due or to secure alternative sources of cash or additional financing, which raise substantial doubt about our ability to continue as a going concern;
entry into definitive agreements with respect to and closing of a transaction in respect of the agreement in principle described below with our principal debenture holders and principal term loan lender;
potential failure to comply with privacy and information security regulations governing the client datasets that we process and store;
the ability to operate in highly competitive markets, and potential adverse effects of this competition;
risk of decreased revenues if we do not adapt our pricing models to compete successfully;
the ability to attract, motivate and retain qualified employees, including members of our senior management team;
the ability to maintain a high level of client service and expand operations;
potential issues with our product offerings that could cause legal exposure, reputational damage and an inability to deliver services;
the ability to develop and successfully grow revenues from new products such as Nebula, improve existing products and adapt our business model to keep pace with industry trends;
risk that our products and services fail to interoperate successfully with third-party systems;
potential unavailability of third-party technology that we use in our products and services;
potential disruption of our products, offerings, website and networks;
difficulties resulting from our implementation of new consolidated business systems;
the ability to deliver products and services following a disaster or business continuity event;
the outbreak of disease or similar public health threat, such as COVID-19;
potential unauthorized use of our products and technology by third parties and/or data security breaches and other incidents;
potential intellectual property infringement claims;
the ability to comply with various trade restrictions, such as sanctions and export controls, resulting from our international operations;
potential impairment charges related to goodwill, identified intangible assets and fixed assets;
impacts of laws and regulations on our business;
macroeconomic conditions, including inflationary pressures, rising interest rates, exchange rate volatility, and recessionary fears;
potential litigation and regulatory proceedings involving us;
expectations regarding the time during which we will be an emerging growth company or smaller reporting company;

 

17


 

the potential liquidity and trading volume of our public securities;
political unrest, international hostilities, military actions, including, without limitation, the wars in Ukraine and the Middle East, terrorist or cyber-terrorist activities and other geopolitical events; an
other risks and uncertainties indicated in the section titled “Risk Factors” in this Quarterly Report on Form 10-Q.

 

The forward-looking statements contained in this Quarterly Report on Form 10-Q and in any document incorporated by reference are based on current expectations and beliefs, which we believe to be reasonable, concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (many of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described in “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in our consolidated financial statements and the related notes thereto included elsewhere in this Quarterly Report on Form 10-Q and in our Annual Report on Form 10-K for the year ended December 31, 2023. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

In addition, statements that include phrases such as “we believe” and similar phrases reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this Quarterly Report on Form 10-Q, and while we believe such information forms a reasonable basis for these statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.

Overview

KLD is a leading global provider of eDiscovery, information governance and data recovery solutions to corporations, law firms, insurance agencies and individuals. We provide technology solutions to help our clients solve complex legal, regulatory and data challenges. We have broad geographical coverage in the eDiscovery and data recovery industries with 26 locations in 17 countries, as well as 9 data centers and 13 data recovery labs globally. Our integrated proprietary technology solutions enable the efficient and accurate collection, processing, transmission, review and/or recovery of complex and large-scale enterprise data. In conjunction with proprietary technology, we provide immediate expert consultation and 24/7/365 support wherever a customer is located worldwide, which empowers us to become a “first-call” partner for mission-critical, time-sensitive, or nuanced eDiscovery and data recovery challenges. We are continuously innovating to provide a more reliable, secure and seamless experience when tackling various “big data” volume, velocity, and veracity challenges. A key example of our purpose-built innovation is Nebula, our flagship, end-to-end artificial intelligence/machine learning, or AI/ML, powered solution that serves as a singular platform of engagement for legal data.

Key factors affecting our performance

 

Our operating results, financial performance and future growth will depend on a variety of factors, including, among others, maintaining our history of product innovation, increasing adoption of Nebula, maintaining and growing our client base while driving greater penetration, growth in the number of our matters, particularly large matters and establishing our partner channel for Nebula. Some of the more important factors are discussed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 as filed with the SEC on March 28, 2023 (our “Annual Report”), as supplemented by the additional discussion below.

Key business metrics

The following are among the key operational and financial metrics we use to measure and evaluate our performance, identify trends affecting our business, formulate business plans, and make strategic decisions.

Clients

We have a strong track record of growing our client base, and we believe that our ability to increase the number of clients utilizing our Legal Technology solutions, including Nebula, is an important indicator of our market penetration, our business growth, and our future opportunities.

 

We define Legal Technology clients as each primary law firm and corporation to which we provided services in a litigation matter that we billed during the past two years. We define Nebula clients, each of which is included in the number of Legal Technology clients, as the total number of primary law firm, corporation, insurance company and service provider clients to which we provided

 

18


 

legal technology solutions for a matter for which we delivered services using Nebula solution during the two years prior to the applicable date.

 

The following table sets forth the number of Legal Technology clients and Nebula clients as of the dates shown:

 

 

 

March 31,

 

 

 

2024

 

 

2023

 

Legal Technology clients

 

 

6,204

 

 

 

6,091

 

Nebula clients

 

 

1,685

 

 

 

1,718

 

 

Number and size of matters

We believe our ability to continuously grow the number of matters on our platform over time is an important measure of scale for our business and is indicative of our future growth prospects.

 

We define Legal Technology matters as the total number of matters on which our Legal Technology solutions were used in the twelve months preceding the applicable date. Matters refer to a range of activities that include collecting, tracking, analyzing, and exchanging relevant data. Legal Technology solutions currently drive the majority of our revenue, and provide the foundation for additional adoption of our proprietary technology solutions and other offerings. We define Nebula matters, which are included in the number of Legal Technology matters, as the total number of matters on which our Nebula solution was used in the twelve months preceding the applicable date. Nebula is our ecosystem of proprietary technology solutions that enables clients to collect, process, store, analyze, and govern their data on a single platform. Nebula comprises a steadily growing component of our revenue and we expect Nebula adoption to increase and the number of Nebula matters to grow in the long term as we continue to introduce new product capabilities and cross-sell Nebula to our existing clients.

 

The following table sets forth the number of Legal Technology matters and Nebula matters as of the dates shown:

 

 

 

March 31,

 

 

 

2024

 

 

2023

 

Legal Technology matters

 

 

8,283

 

 

 

8,078

 

Nebula matters

 

 

1,320

 

 

 

1,231

 

 

Our comprehensive product offerings, technology-enabled service offerings and reputation as a trusted partner to our clients enable us to capture matters of large size and complexity. For the three months ended March 31, 2024 and 2023, 45% and 48% of Legal Technology revenue, respectively, was produced by matters that generated revenues of greater than $500,000, and 71% and 78% of our Legal Technology revenue, respectively, was produced by matters that generated revenues of greater than $100,000 during the relevant period.

Legal Technology net revenue retention

We calculate our Legal Technology net revenue retention rate by dividing (1) total Legal Technology revenue in the twelve-month period from accounts that generated Legal Technology revenue during the corresponding immediately preceding twelve month period by (2) total Legal Technology revenue in the immediately preceding twelve month period generated from those same accounts. Our Legal Technology net revenue retention rate includes revenue from use of Nebula.

 

 

 

Twelve Months Ended March 31,

 

 

2024

 

2023

Legal Technology net revenue retention

 

98%

 

95%

 

For the three months ended March 31, 2024 and 2023, our Legal Technology revenue was $73.0 million and $82.0 million, respectively, and our data recovery revenue was $7.2 million and $8.7 million, respectively.

 

Our Legal Technology net revenue retention rate is impacted by our usage-based pricing model, and revenue could fluctuate in any given period due to frequency of matters, client upsell, cross-sell, and churn. In the long-term, we plan to increase our net revenue retention rate by increasing the number of solutions that we sell on a subscription-basis, as well as broadening the scope of our Nebula offerings, to promote strong product adoption. As we expand our products beyond eDiscovery to other information governance solutions such as big data hosting and processing, including through Nebula, we expect clients to leverage our technology earlier in the data lifecycle, providing further opportunity for us to increase our product and service penetration and client retention. Furthermore, we plan to establish and broaden our channel partnerships over time and leverage these strong relationships to further our awareness of our products and overall usage within the industry.

 

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KEY COMPONENTS OF OUR RESULTS OF OPERATIONS

Revenue

The Company primarily generates revenue from selling solutions that fall into the following categories:

(1)
Legal Technology, including Nebula and our expansive suite of technology solutions, such as our end-to-end eDiscovery technology solutions, managed review solutions, collections, processing, analytics, hosting, production, and professional services; and
(2)
Data recovery solutions, which provides data restoration, data erasure and data management services.

 

The Company generates the majority of its revenues by providing Legal Technology solutions to our clients. Most of the Company’s eDiscovery contracts are time and materials types of arrangements, while others are subscription-based, fixed-fee arrangements.

 

Time and materials arrangements are based on units of data stored or processed. Unit-based revenues are recognized as services are provided, based on either the amount of data stored or processed, the number of concurrent users accessing the information or the number of pages or images processed for a client, at agreed upon per unit rates. The Company recognizes revenues for these arrangements utilizing a right-to-invoice practical expedient because it has a contractual right to consideration for services completed to date.

 

Certain of the Company’s eDiscovery contracts are subscription-based, fixed fee arrangements, which have tiered pricing based on the quantity of data hosted. For a fixed monthly fee, the Company’s clients receive a variety of optional eDiscovery solutions, which are included in addition to the data hosting. The Company recognizes revenues for these arrangements based on predetermined monthly fees as determined in its contractual agreements, utilizing a right-to-invoice practical expedient because the Company has a contractual right to consideration for services completed to date.

 

Other eDiscovery agreements are time and material arrangements that require the client to pay us based on the number of hours worked at contractually agreed-upon rates. The Company recognizes revenues for these arrangements based on hours incurred and contracted rates utilizing a right-to-invoice practical expedient because it has a contractual right to consideration for services completed to date.

 

Data recovery engagements are mainly fixed fee arrangements requiring the client to pay a pre-established fee in exchange for the successful completion of such engagement on a predetermined device. For the recovery performed by the Company’s technicians, the revenue is recognized at a point in time, when the recovered data is sent to the customer.

 

Data erasure engagements are also fixed fee arrangements for which revenue is recognized at a point in time when the certificate of erasure is sent to the customer.

 

The Company offers term license subscriptions to Ontrack PowerControls software to customers with on-premises installations of the software pursuant to contracts that are historically one to four years in length. The term license subscriptions include maintenance and support, as well as access to future software upgrades and patches. The license and the additional support services are deemed to be one performance obligation, and thus revenue for these arrangements is recognized ratably over the term of the agreement.

 

For the three months ended March 31, 2024 and 2023, our Legal Technology revenue was $73.0 million and $82.0 million, respectively, and our data recovery revenue was $7.2 million and $8.7 million, respectively. For the three months ended March 31, 2024 and 2023, Legal Technology revenue from our technology solutions other than Nebula was $58.2 million and $73.8 million respectively, and revenue from Nebula was $14.8 million and $8.2 million, respectively, which includes $5.7 million and $0, respectively, for Nebula processing services within Nebula for non-Nebula hosted engagements.

 

We currently expect Nebula revenue will continue to accelerate, with Nebula growing as a larger percentage of the mix of total revenue over time.

Cost of Revenues

Cost of revenue consists primarily of technology infrastructure costs, personnel costs and amortization of capitalized developed technology costs. Infrastructure costs include hardware, software, occupancy and cloud costs to support our legal technology and data recovery solutions. Personnel costs include salaries, benefits, bonuses, and stock-based compensation as well as costs associated with document reviewers which are variable based on managed review revenue. We intend to continue to invest additional resources in our infrastructure to expand the capability of solutions and enable our customers to realize the full benefit of our solutions. The level, timing and relative investment in our cloud infrastructure could affect our cost of revenue in the future. Additionally, cost of revenue in future periods could be impacted by fluctuations in document reviewer costs associated with managed review revenue.

Operating expenses

 

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Our operating expenses consist of research and development, sales and marketing, general and administrative and amortization and depreciation expenses. Personnel costs are the most significant component of operating expenses and consist of salaries, benefits, bonuses, share-based compensation and sales commissions. Operating expenses also include occupancy, software expense and professional services. Research and development expense is expected to increase in 2024 reflecting a full year of 2023 hiring activity and 2024 salary increases and increases in benefits. We intend to continue to invest in research and development to further develop our proprietary technology and support further penetration and adoption of our offerings, including our end-to-end Nebula platform. We expect research and development expense to remain fairly consistent as a percentage of revenue in 2024 and thereafter. We expect sales and marketing expense to slightly increase in 2024 as we are hiring more sales personnel and are increasing marketing. Sales and marketing expense is expected to remain fairly consistent as a percentage of revenue given projected increases in revenue in the next year and thereafter. We also expect general and administrative expense to increase in 2024 as compared to 2023 reflecting a full year of 2023 additions to personnel, salary increases and increases in benefits. General and administrative expense as a percentage of revenue is expected to decline over time due to our ability to scale as revenues increase and as a result of historical cost-cutting measures.

Interest Expense

Interest expense consists primarily of interest payments and accruals relating to outstanding borrowings. We expect interest expense to vary each reporting period depending on the amount of outstanding borrowings and prevailing interest rates.

Income Tax Provision

The income tax provision is primarily related to foreign tax activity and U.S. deferred taxes for tax deductible goodwill and other indefinite-lived liabilities. We maintain a valuation allowance on our federal and state deferred tax assets as we have concluded that it is not more likely than not that the deferred assets will be utilized.

Non-U.S. GAAP Financial Measures

We prepare financial statements in accordance with U.S. GAAP. We also disclose and discuss other non-U.S. GAAP financial measures such as EBITDA and adjusted EBITDA. Our management believes that these measures are relevant and provide useful supplemental information to investors by providing a baseline for evaluating and comparing our operating performance against that of other companies in our industry.

 

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

EBITDA and Adjusted EBITDA

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

Acquisition, financing and transaction costs generally represent earn-out payments, rating agency fees and letter of credit and revolving facility fees, as well as professional service fees and direct expenses related to acquisitions, public offerings and cost associated with reviewing potential alternative sources for cash or financing related to our debt maturities. Because we do not acquire businesses or effect financings on a regular or predictable cycle, we do not consider the amount of these costs to be a representative component of the day-to-day operating performance of our business.
Stock compensation and other primarily represent portions of compensation paid to our employees and executives through stock-based instruments. Determining the fair value of the stock-based instruments involves a high degree of judgment and estimation and the expenses recorded may not align with the actual value realized upon the future exercise or termination of the related stock-based awards. Additionally, stock compensation is a non-cash expense. Therefore, we believe it is useful to exclude stock-based compensation to better understand the long-term performance of our core business.

 

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Change in fair value of Private Warrants relates to changes in the fair market value of the Private Warrants issued in conjunction with the Business Combination. We do not consider the amount to be representative of a component of the day-to-day operating performance of our business.
Restructuring costs generally represent non-ordinary course costs incurred in connection with a change in a contract or a change in the makeup of our personnel often related to an acquisition, such as severance payments, recruiting fees and retention charges. We do not consider the amount of restructuring costs to be a representative component of the day-to-day operating performance of our business.
Systems establishment costs relate to non-ordinary course expenses incurred to develop our IT infrastructure, including system automation and enterprise resource planning system implementation. We do not consider the amount to be representative of a component of the day-to-day operating performance of our business.

 

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

 

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

 

our cash expenditures or future requirements for capital expenditures;
changes in, or cash requirements for, our working capital needs;
interest expense, or the cash requirements necessary to service interest or principal payments, on our indebtedness;
any cash income taxes that we may be required to pay;
any cash requirements for replacements of assets that are depreciated or amortized over their estimated useful lives and may have to be replaced in the future; or
all non-cash income or expense items that are reflected in our statements of cash flows.

 

See “—Results of Operations” below for reconciliations of adjusted EBITDA to net loss.

RESULTS OF OPERATIONS

For the three months ended March 31, 2024 compared with the three months ended March 31, 2023

The results for the periods shown below should be reviewed in conjunction with our unaudited condensed consolidated financial statements included in “Item 1. Financial Statements.”

 

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

 

 

 

For the Three Months Ended March 31,

 

(in millions)

 

2024

 

 

2023

 

 

 

 

 

 

 

 

Revenues

 

$

80.2

 

 

$

90.7

 

Cost of revenues