10-Q 1 a09-30916_110q.htm 10-Q

Table of Contents

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

x

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

 

For the quarterly period ended September 30, 2009

 

OR

 

o

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: 001-15605

 

EARTHLINK, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

58-2511877

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

1375 Peachtree St., Atlanta, Georgia

 

30309

(Address of principal executive offices)

 

(Zip Code)

 

(404) 815-0770

(Registrant’s telephone number, including area code)

 


 

 

 (Former name, former address and former fiscal year, if changed since last report date)

 


 

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 x No o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).   Yes o No o

 

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

 

Large accelerated filer x

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company o

 

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

 

As of October 29, 2009, 107,018,656 shares of common stock, $.01 par value per share, were outstanding.

 

 

 




Table of Contents

 

PART I

 

Item 1.  Financial Statements.

 

EARTHLINK, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except per share data)

 

 

 

December 31,

 

September 30,

 

 

 

2008

 

2009

 

 

 

 

 

(unaudited)

 

ASSETS

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

486,564

 

$

562,274

 

Accounts receivable, net of allowance of $4,048 and $1,920 as of December 31, 2008 and September 30, 2009, respectively

 

30,569

 

21,610

 

Marketable securities

 

 

90,791

 

Prepaid expenses

 

6,445

 

6,170

 

Deferred income taxes, net

 

20,254

 

4,543

 

Other current assets

 

15,452

 

17,201

 

Total current assets

 

559,284

 

702,589

 

Long-term marketable securities

 

47,809

 

1,807

 

Long-term investments

 

20,708

 

19,089

 

Property and equipment, net

 

37,246

 

34,759

 

Deferred income taxes, net

 

43,757

 

9,815

 

Purchased intangible assets, net

 

19,552

 

13,328

 

Goodwill

 

112,812

 

112,812

 

Other long-term assets

 

4,698

 

3,772

 

Total assets

 

$

845,866

 

$

897,971

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

13,109

 

$

8,061

 

Accrued payroll and related expenses

 

37,470

 

20,656

 

Other accrued liabilities

 

39,415

 

35,070

 

Deferred revenue

 

33,649

 

27,145

 

Convertible senior notes, net of discount of $29,743 as of September 30, 2009

 

 

229,007

 

Total current liabilities

 

123,643

 

319,939

 

 

 

 

 

 

 

Convertible senior notes, net of discount of $39,017 as of December 31, 2008

 

219,733

 

 

Other long-term liabilities

 

16,015

 

16,492

 

Total liabilities

 

359,391

 

336,431

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Convertible preferred stock, $0.01 par value, 100,000 shares authorized, 0 shares issued and outstanding as of December 31, 2008 and September 30, 2009

 

 

 

Common stock, $0.01 par value, 300,000 shares authorized, 188,264 and 190,332 shares issued as of December 31, 2008 and September 30, 2009, respectively, and 108,516 and 106,992 shares outstanding as of December 31, 2008 and September 30, 2009, respectively

 

1,883

 

1,903

 

Additional paid-in capital

 

2,135,887

 

2,131,130

 

Accumulated deficit

 

(1,016,833

)

(922,984

)

Treasury stock, at cost, 79,748 and 83,340 shares as of December 31, 2008 and September 30, 2009, respectively

 

(634,420

)

(656,760

)

Unrealized (losses) gains on investments

 

(42

)

8,251

 

Total stockholders’ equity

 

486,475

 

561,540

 

Total liabilities and stockholders’ equity

 

$

845,866

 

$

897,971

 

 

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

 

1



Table of Contents

 

EARTHLINK, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

 

 

 

Three Months Ended September 30,

 

Nine Months Ended September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands, except per share data)

 

 

 

(unaudited)

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

230,831

 

$

174,521

 

$

739,508

 

$

559,181

 

 

 

 

 

 

 

 

 

 

 

Operating costs and expenses:

 

 

 

 

 

 

 

 

 

Cost of revenues

 

87,616

 

66,885

 

277,655

 

211,720

 

Sales and marketing

 

22,191

 

13,840

 

78,913

 

45,405

 

Operations and customer support

 

34,048

 

23,569

 

106,914

 

75,255

 

General and administrative

 

23,316

 

16,472

 

72,010

 

51,503

 

Amortization of intangible assets

 

3,153

 

2,039

 

11,153

 

6,224

 

Facility exit and restructuring costs

 

1,078

 

(97

)

4,169

 

5,318

 

Total operating costs and expenses

 

171,402

 

122,708

 

550,814

 

395,425

 

 

 

 

 

 

 

 

 

 

 

Income from operations

 

59,429

 

51,813

 

188,694

 

163,756

 

Gain on investments, net

 

4,352

 

35

 

5,677

 

305

 

Interest expense and other, net

 

(3,281

)

(5,067

)

(7,804

)

(14,458

)

Income from continuing operations before income taxes

 

60,500

 

46,781

 

186,567

 

149,603

 

Income tax provision

 

(7,924

)

(16,914

)

(23,923

)

(55,754

)

Income from continuing operations

 

52,576

 

29,867

 

162,644

 

93,849

 

Loss from discontinued operations

 

(681

)

 

(8,438

)

 

Net income

 

$

51,895

 

$

29,867

 

$

154,206

 

$

93,849

 

 

 

 

 

 

 

 

 

 

 

Basic net income per share

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.48

 

$

0.28

 

$

1.48

 

$

0.88

 

Discontinued operations

 

(0.01

)

 

(0.08

)

 

Basic net income per share

 

$

0.47

 

$

0.28

 

$

1.40

 

$

0.88

 

Basic weighted average common shares outstanding

 

110,153

 

106,615

 

109,895

 

106,853

 

 

 

 

 

 

 

 

 

 

 

Diluted net income per share

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.47

 

$

0.28

 

$

1.46

 

$

0.87

 

Discontinued operations

 

(0.01

)

 

(0.08

)

 

Diluted net income per share

 

$

0.46

 

$

0.28

 

$

1.38

 

$

0.87

 

Diluted weighted average common shares outstanding

 

112,039

 

107,943

 

111,534

 

108,052

 

 

 

 

 

 

 

 

 

 

 

Dividends declared per share

 

$

 

$

0.14

 

$

 

$

0.14

 

 

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

 

2



Table of Contents

 

EARTHLINK, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

 

 

Nine Months Ended

 

 

 

September 30,

 

 

 

2008

 

2009

 

 

 

(in thousands)

 

 

 

(unaudited)

 

Cash flows from operating activities:

 

 

 

 

 

Net income

 

$

154,206

 

$

93,849

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

29,388

 

18,610

 

Loss on disposals and impairments of fixed assets

 

6,255

 

289

 

Stock-based compensation

 

14,319

 

10,552

 

Deferred income taxes

 

15,968

 

49,050

 

Accretion of debt discount and amortization of debt issuance costs

 

8,170

 

10,121

 

Gain on investments, net

 

(5,677

)

(305

)

Decrease in accounts receivable, net

 

13,269

 

8,959

 

(Increase) decrease in prepaid expenses and other assets

 

(6,466

)

4,466

 

Decrease in accounts payable and accrued and other liabilities

 

(45,491

)

(30,527

)

Decrease in deferred revenue

 

(9,364

)

(6,625

)

Net cash provided by operating activities

 

174,577

 

158,439

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

 

Purchases of property and equipment

 

(3,877

)

(10,648

)

Purchases of subscriber bases

 

(880

)

 

Purchases of marketable securities

 

(53,027

)

(52,502

)

Sales and maturities of marketable securities

 

109,929

 

12,473

 

Proceeds received from investments in other companies

 

57,070

 

200

 

Other investing activities

 

65

 

 

Net cash provided by (used in) investing activities

 

109,280

 

(50,477

)

 

 

 

 

 

 

Cash flows from financing activities:

 

 

 

 

 

Principal payments under capital lease obligations

 

(2,698

)

(25

)

Proceeds from exercises of stock options

 

7,985

 

5,073

 

Repurchases of common stock

 

(31,857

)

(22,340

)

Payment of dividends

 

 

(14,960

)

Other financing activities

 

1,425

 

 

Net cash used in financing activities

 

(25,145

)

(32,252

)

 

 

 

 

 

 

Net increase in cash and cash equivalents

 

258,712

 

75,710

 

Cash and cash equivalents, beginning of period

 

173,827

 

486,564

 

Cash and cash equivalents, end of period

 

$

432,539

 

$

562,274

 

 

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

 

3



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED

 

1.  Organization

 

EarthLink, Inc. (“EarthLink” or the “Company”) is an Internet service provider (“ISP”), providing nationwide Internet access and related value-added services to individual and business customers. The Company’s primary service offerings are dial-up and high-speed Internet access services and related value-added services, such as ancillary services sold as add-on features to the Company’s Internet access services, search and advertising. In addition, through the Company’s wholly-owned subsidiary, New Edge Networks (“New Edge”), the Company builds and manages private IP-based wide area networks for businesses and communications carriers.

 

The Company operates two reportable segments, Consumer Services and Business Services. The Company’s Consumer Services segment provides Internet access and related value-added services to individual customers. These services include dial-up and high-speed Internet access and voice-over-Internet protocol (“VoIP”) services, among others. The Company’s Business Services segment provides integrated communications services and related value-added services to businesses and communications carriers. These services include managed private IP-based wide area networks, dedicated Internet access and web hosting, among others. For further information concerning the Company’s business segments, see Note 13, “Segment Information.”

 

2.  Summary of Significant Accounting Policies

 

Basis of Presentation

 

The condensed consolidated financial statements of EarthLink, which include the accounts of its wholly-owned subsidiaries, for the three and nine months ended September 30, 2008 and 2009 and the related footnote information are unaudited and have been prepared on a basis consistent with the Company’s audited consolidated financial statements as of December 31, 2008 contained in the Company’s Annual Report on Form 10-K as filed with the Securities and Exchange Commission (the “Annual Report”).  All significant intercompany transactions have been eliminated.  In connection with the preparation of the condensed consolidated financial statements the Company evaluated subsequent events after the balance sheet date of September 30, 2009 through October 30, 2009, the date of issuance of the Company’s condensed consolidated financial statements.

 

These financial statements should be read in conjunction with the audited consolidated financial statements and the related notes thereto contained in the Company’s Annual Report.  In the opinion of management, the accompanying unaudited financial statements contain all adjustments (consisting of normal recurring adjustments), which management considers necessary to present fairly the Company’s financial position, results of operations and cash flows for the interim periods presented.  The results of operations for the three and nine months ended September 30, 2009 are not necessarily indicative of the results anticipated for the entire year ending December 31, 2009.

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements.  Actual results may differ from those estimates.

 

Discontinued Operations

 

The Company reflected its municipal wireless broadband results of operations as discontinued operations for the three and nine months ended September 30, 2008. See Note 5, “Discontinued Operations,” for further discussion.

 

4



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Fair Value of Financial Instruments

 

The carrying amounts of the Company’s cash, cash equivalents, trade receivables and trade payables approximate their fair values because of their nature and respective durations. The Company’s short- and long-term marketable securities consist of available-for-sale and trading securities that are carried at market value. The Company’s equity investments in publicly-held companies are stated at fair value, which is based on quoted market prices, with unrealized gains and losses included in stockholders’ equity. The Company’s investments in privately-held companies are stated at cost, net of other-than-temporary impairments, because it is impracticable to estimate fair value.

 

Reclassifications

 

Certain amounts in the prior period financial statements have been reclassified to conform to the current period presentation.

 

Recently Issued Accounting Pronouncement

 

In September 2009, the Financial Accounting Standards Board (“FASB”) issued new guidance on revenue recognition. The new guidance addresses the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit and to modify the manner in which the transaction consideration is allocated across the separately identifiable deliverables and how revenue is recognized. The new guidance also significantly expands the disclosure requirements for multiple-element arrangements. The new guidance is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010. The Company does not expect the adoption of the new guidance to have a material impact on its financial statements.

 

Adoption of Recent Accounting Pronouncements

 

Codification. In the third quarter of 2009, the Company adopted the FASB Accounting Standards Codification (“ASC”). The ASC became the single official source of authoritative U.S. generally accepted accounting principles (“GAAP”) recognized by the FASB, other than guidance issued by the Securities and Exchange Commission. The adoption of the ASC did not have a material impact on the Company’s financial statements. However, the adoption of the ASC changed the Company’s references to GAAP in its consolidated financial statements.

 

Convertible Debt. On January 1, 2009, the Company adopted new accounting guidance related to accounting for convertible debt instruments that may be settled in cash upon conversion, which was codified in ASC Subtopic 470-20, “Debt With Conversion and Other Options.” The new accounting guidance requires that the liability and equity components of convertible debt instruments that may be settled in cash upon conversion (including partial cash settlement) be separately accounted for in a manner that reflects an issuer’s non-convertible debt borrowing rate. The resulting debt discount is accreted over the period the convertible debt is expected to be outstanding as additional non-cash interest expense. Retrospective application to all periods presented is required. The adoption of this new guidance on January 1, 2009 affected the accounting for the Company’s Convertible Senior Notes due November 15, 2026 (the “Notes”), which were issued in November 2006. Upon adoption, the Company recorded an adjustment to increase additional paid-in capital as of the November 2006 issuance date by approximately $62.1 million. The Company is accreting the resulting debt discount to interest expense over the estimated five-year life of the Notes, which represents the first redemption date of November 2011. The Company recorded a pre-tax adjustment of approximately $22.3 million to retained earnings that represents the debt discount accretion during the years ended December 31, 2006, 2007 and 2008 and will recognize additional non-cash interest expense of $12.2 million, $13.4 million and $12.4 million during the years ending December 31, 2009, 2010 and 2011, respectively, for accretion of the debt discount. As a result of the adoption of this new guidance, the Company reduced income from continuing operations and net income for the three months ended September 30, 2009 by $3.1 million and reduced basic and diluted earnings per share by $0.03 per share, and reduced income from continuing operations and net income for the nine months ended

 

5



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

September 30, 2009 by $9.0 million and reduced basic and diluted earnings per share by $0.08 per share. The Company also recorded a deferred tax liability for temporary tax differences. However, this was offset by a corresponding decrease in the valuation allowance for deferred tax assets.

 

The following tables present the effect of the adoption of this new guidance on the Company’s affected financial statement line items for the three and nine months ended September 30, 2008 and as of December 31, 2008:

 

 

 

Three Months Ended September 30, 2008

 

Nine Months Ended September 30, 2008

 

 

 

As Originally

 

As

 

Effect of

 

As Originally

 

As

 

Effect of

 

 

 

Reported

 

Adjusted

 

Change

 

Reported

 

Adjusted

 

Change

 

 

 

(in thousands, except per share data)

 

Statement of Operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest (expense) income and other, net

 

$

(490

)

$

(3,281

)

$

(2,791

)

$

366

 

$

(7,804

)

$

(8,170

)

Income from continuing operations

 

55,367

 

52,576

 

(2,791

)

170,814

 

162,644

 

(8,170

)

Net income

 

54,686

 

51,895

 

(2,791

)

162,376

 

154,206

 

(8,170

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic net income per share

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.50

 

$

0.48

 

$

(0.03

)

$

1.55

 

$

1.48

 

$

(0.07

)

Basic net income per share

 

0.50

 

0.47

 

(0.03

)

1.48

 

1.40

 

(0.07

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted net income per share

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.49

 

$

0.47

 

$

(0.02

)

$

1.53

 

$

1.46

 

$

(0.07

)

Diluted net income per share

 

0.49

 

0.46

 

(0.02

)

1.46

 

1.38

 

(0.07

)

 

 

 

As of December 31, 2008

 

 

 

As Originally

 

As

 

Effect of

 

 

 

Reported

 

Adjusted

 

Change

 

 

 

(in thousands)

 

Balance Sheet:

 

 

 

 

 

 

 

Other long-term assets

 

$

5,725

 

$

4,698

 

$

(1,027

)

Long-term debt

 

258,750

 

219,733

 

(39,017

)

Additional paid-in capital

 

2,075,571

 

2,135,887

 

60,316

 

Accumulated deficit

 

(994,507

)

(1,016,833

)

(22,326

)

 

3.  Earnings per Share

 

The Company presents a dual presentation of basic and diluted earnings per share (“EPS”). Basic EPS represents net income divided by the weighted average number of common shares outstanding during a reported period. Diluted EPS reflects the potential dilution that could occur if securities or other contracts to issue common stock, including stock options, restricted stock units, phantom share units and convertible debt (collectively “Common Stock Equivalents”), were exercised or converted into common stock. The dilutive effect of outstanding stock options, restricted stock units and convertible debt is reflected in diluted earnings per share by application of the treasury stock method. Phantom share units are reflected on an if-converted basis. In applying the treasury stock method for stock-based compensation arrangements, the assumed proceeds are computed as the sum of the amount the employee must pay upon exercise and the amounts of average unrecognized compensation cost attributed to future services.

 

6



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

The following table sets forth the computation for basic and diluted net income per share for the three and nine months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands, except per share data)

 

Numerator

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

52,576

 

$

29,867

 

$

162,644

 

$

93,849

 

Loss from discontinued operations

 

(681

)

 

(8,438

)

 

Net income

 

$

51,895

 

$

29,867

 

$

154,206

 

$

93,849

 

 

 

 

 

 

 

 

 

 

 

Denominator

 

 

 

 

 

 

 

 

 

Basic weighted average common shares outstanding

 

110,153

 

106,615

 

109,895

 

106,853

 

Dilutive effect of Common Stock Equivalents

 

1,886

 

1,328

 

1,639

 

1,199

 

Diluted weighted average common shares outstanding

 

112,039

 

107,943

 

111,534

 

108,052

 

 

 

 

 

 

 

 

 

 

 

Basic net income per share

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.48

 

$

0.28

 

$

1.48

 

$

0.88

 

Discontinued operations

 

(0.01

)

 

(0.08

)

 

Basic net income per share

 

$

0.47

 

$

0.28

 

$

1.40

 

$

0.88

 

 

 

 

 

 

 

 

 

 

 

Diluted net income per share

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.47

 

$

0.28

 

$

1.46

 

$

0.87

 

Discontinued operations

 

(0.01

)

 

(0.08

)

 

Diluted net income per share

 

$

0.46

 

$

0.28

 

$

1.38

 

$

0.87

 

 

During the three months ended September 30, 2008 and 2009, approximately 8.0 million and 4.1 million, respectively, stock options and restricted stock units were excluded from the calculation of diluted EPS because the exercise prices plus the amount of unrecognized compensation cost attributed to future services exceeded the Company’s average stock price during the respective periods. During the nine months ended September 30, 2008 and 2009, approximately 8.7 million and 5.2 million, respectively, stock options and restricted stock units were excluded from the calculations of diluted EPS. Approximately 28.4 million and 28.9 million shares as of September 30, 2008 and 2009, respectively, that underlie the Company’s convertible debt instruments were also excluded from the calculations of diluted EPS because the exercise price exceeded the Company’s average stock price during the periods. These securities could be dilutive in future periods.

 

7



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

4.  Facility Exit and Restructuring Costs

 

Facility exit and restructuring costs consisted of the following during the three and nine months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

 

 

 

 

 

 

 

 

 

 

2007 Restructuring Plan

 

$

1,159

 

$

31

 

$

4,421

 

$

5,446

 

Legacy Restructuring Plans

 

(81

)

(128

)

(252

)

(128

)

 

 

$

1,078

 

$

(97

)

$

4,169

 

$

5,318

 

 

2007 Restructuring Plan

 

In August 2007, EarthLink adopted a restructuring plan (the “2007 Plan”) to reduce costs and improve the efficiency of the Company’s operations. The 2007 Plan was the result of a comprehensive review of operations within and across the Company’s functions and businesses. Under the 2007 Plan, the Company reduced its workforce by approximately 900 employees, closed office facilities in Orlando, Florida; Knoxville, Tennessee; Harrisburg, Pennsylvania; and San Francisco, California and consolidated its office facilities in Atlanta, Georgia and Pasadena, California. The 2007 Plan was primarily implemented during the latter half of 2007 and during the year ended December 31, 2008. However, since management continues to evaluate EarthLink’s businesses, there have been and may continue to be supplemental provisions for new cost savings initiatives as well as changes in estimates to amounts previously recorded.

 

The Company recorded $5.4 million of facility exit and restructuring costs during the nine months ended September 30, 2009 as a result of changes to sublease estimates in its Atlanta, Georgia and Pasadena, California facilities and further consolidation in its Atlanta, GA facility. The following table summarizes facility exit and restructuring costs during the nine months ended September 30, 2008 and 2009 and the cumulative costs incurred to date as a result of the 2007 Plan. Such costs have been classified as facility exit and restructuring costs in the Condensed Consolidated Statements of Operations.

 

 

 

 

 

 

 

Cumulative

 

 

 

 

 

 

 

Costs

 

 

 

Nine Months Ended September 30,

 

Incurred

 

 

 

2008

 

2009

 

To Date

 

 

 

(in thousands)

 

 

 

 

 

 

 

 

 

Severance and personnel-related costs

 

$

474

 

$

 

$

30,764

 

Lease termination and facilities-related costs

 

3,352

 

5,400

 

22,424

 

Non-cash asset impairments

 

514

 

46

 

24,792

 

Other associated costs

 

81

 

 

1,131

 

 

 

$

4,421

 

$

5,446

 

$

79,111

 

 

8



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

The following table summarizes activity for the liability balances associated with the 2007 Plan for the years ended December 31, 2007 and 2008 and for the nine months ended September 30, 2009, including changes during the years attributable to costs incurred and charged to expense and costs paid or otherwise settled:

 

 

 

Severance

 

 

 

Asset

 

Other

 

 

 

 

 

and Benefits

 

Facilities

 

Impairments

 

Costs

 

Total

 

 

 

(in thousands)

 

Balance as of December 31, 2006

 

$

 

$

 

$

 

$

 

$

 

Accruals

 

30,303

 

12,216

 

20,621

 

1,131

 

64,271

 

Payments

 

(18,262

)

(480

)

 

(760

)

(19,502

)

Non-cash charges

 

 

4,388

 

(20,621

)

(371

)

(16,604

)

Balance as of December 31, 2007

 

12,041

 

16,124

 

 

 

28,165

 

Accruals

 

461

 

4,808

 

4,125

 

 

9,394

 

Payments

 

(12,502

)

(6,174

)

 

 

(18,676

)

Non-cash charges

 

 

1,936

 

(4,125

)

 

(2,189

)

Balance as of December 31, 2008

 

 

16,694

 

 

 

16,694

 

Accruals

 

 

5,400

 

46

 

 

5,446

 

Payments

 

 

(3,732

)

 

 

(3,732

)

Non-cash charges

 

 

392

 

(46

)

 

346

 

Balance as of September 30, 2009

 

$

 

$

18,754

 

$

 

$

 

$

18,754

 

 

Facility exit and restructuring liabilities due within one year of the balance sheet date are classified as other accrued liabilities and facility exit and restructuring liabilities due after one year of the balance sheet date are classified as other long-term liabilities in the Condensed Consolidated Balance Sheets. Of the unpaid balance as of December 31, 2008 and September 30, 2009, approximately $5.9 million and $5.8 million, respectively, were classified as other accrued liabilities and approximately $10.8 million and $13.0 million, respectively, were classified as other long-term liabilities.

 

Legacy Restructuring Plans

 

During the years ended December 31, 2003, 2004 and 2005, the Company executed a series of plans to restructure and streamline the Company’s contact center operations and outsource certain internal functions (collectively referred to as “Legacy Plans”). The Legacy Plans included facility exit costs, personnel-related costs and asset disposals. EarthLink periodically evaluates and adjusts its estimates for facility exit and restructuring costs based on currently-available information. Such adjustments are included as facility exit and restructuring costs in the Condensed Consolidated Statements of Operations. During the three and nine months ended September 30, 2008, EarthLink recorded a $0.1 million and $0.3 million reduction, respectively, to facility exit and restructuring costs as a result of changes in estimates for the Legacy Plans. During the three and nine months ended September 30, 2009, EarthLink recorded a $0.1 million reduction to facility exit and restructuring costs as a result of changes in estimates for the Legacy Plans. As of September 30, 2009, the Company had a $0.7 million liability remaining for real estate commitments related to the Legacy Plans which was classified as other accrued liabilities in the Condensed Consolidated Balance Sheet. All other costs have been paid.

 

9



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EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

5.  Discontinued Operations

 

In November 2007, management concluded that its municipal wireless broadband operations were no longer consistent with the Company’s strategic direction and the Company’s Board of Directors authorized management to pursue the divestiture of the Company’s municipal wireless broadband assets. As a result of that decision, the Company classified the municipal wireless broadband assets as held for sale and presented the municipal wireless broadband results of operations as discontinued operations. The results of operations for municipal wireless broadband were previously included in the Consumer Services segment.  As of December 31, 2008, the Company had completed the divestiture of its municipal wireless broadband assets. As a result, the Company did not record discontinued operations during the three and nine months ended September 30, 2009.

 

The following table presents summarized results of operations related to the Company’s discontinued operations for the three and nine months ended September 30, 2008:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30, 2008

 

September 30, 2008

 

 

 

(in thousands)

 

 

 

 

 

 

 

Revenues

 

$

18

 

$

1,306

 

Operating costs and expenses

 

(842

)

(4,534

)

Impairment and restructuring costs

 

(128

)

(6,081

)

Income tax benefit

 

271

 

871

 

Loss from discontinued operations

 

$

(681

)

$

(8,438

)

 

6.  Investments

 

Marketable Securities

 

All investments with original maturities greater than 90 days are classified as marketable securities. Marketable securities with maturities less than one year from the balance sheet date are classified as short-term marketable securities. Marketable securities with maturities greater than one year from the balance sheet date are classified as long-term marketable securities. Long-term marketable securities as of December 31, 2008 also included investments in asset-backed, auction rate securities with interest rate reset periods of 90 days or less but whose underlying agreements have original maturities of more than 90 days. These securities were classified as short-term marketable securities as of September 30, 2009, which is more fully described below.

 

As of December 31, 2008, the Company’s long term marketable securities consisted of auction rate securities classified as trading with a carrying value and fair value of $47.8 million. As of September 30, 2009, the Company had $90.8 million of short-term marketable securities and $1.8 million of long-term marketable securities. As of September 30, 2009, $47.8 million of the Company’s short-term marketable securities and the $1.8 million of the Company’s long-term marketable securities consisted of government agency notes and were classified as available-for-sale. The amortized cost for these securities was $49.5 million and the aggregate fair value was $49.6 million. Gross unrealized gains on these securities as of September 30, 2009 were $0.1 million and there were no gross unrealized losses. As of September 30, 2009, $43.0 million of the Company’s short-term marketable securities consisted of auction rate securities which were classified as trading. These securities are variable-rate debt instruments whose underlying agreements have contractual maturities of up to 40 years, but have interest rate reset periods at pre-determined intervals, usually every 28 days. These securities are predominantly secured by student loans guaranteed by state related higher education agencies and reinsured by the U.S. Department of Education. Beginning in February 2008, auctions for these securities failed to attract sufficient buyers, resulting in the Company continuing to hold such securities. Accordingly, the Company classified these securities as long-term marketable securities in the Condensed Consolidated Balance Sheet as of December 31, 2008 due to uncertainty surrounding the timing of a market recovery.

 

10



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EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

In October 2008, EarthLink entered into an agreement with the broker that sold the Company its auction rate securities that gives the Company the right to sell its existing auction rate securities back to the broker at par plus accrued interest, beginning on June 30, 2010 until July 2, 2012 (herein referred to as “put right”). Accordingly, the Company classified its auction rate securities as short-term marketable securities in the Condensed Consolidated Balance Sheet as of September 30, 2009. The agreement also grants the broker the right to buy the Company’s auction rate securities at par plus accrued interest, until July 2, 2012. The Company records the auction rate securities at fair value, with changes in fair value included in earnings, as the Company no longer intends to hold the securities until a market recovery. The Company also elected a one-time transfer of its auction rate securities from the available-for-sale category to the trading category. The Company also records the value of the put right at fair value, with changes in fair value included in earnings, as the Company elected the fair value option under ASC 825, “Financial Instruments,” for the put right to offset the fair value changes of the auction rate securities. During the nine months ended September 30, 2009, the Company redeemed $9.5 million of auction rate securities at par, plus accrued interest. During the nine months ended September 30, 2009, the Company recorded a $4.7 million gain on investments related to the auction rate securities and recorded a $4.6 million loss on investments related to the put right. The net gain of $0.1 million during the nine months ended September 30, 2009 is included in gain on investments, net, in the Condensed Consolidated Statement of Operations. The net gain during the three months ended September 30, 2009 was nominal. Refer to Note 12, “Fair Value Measurements,” for a table that reconciles the beginning and ending balances of the auction rate securities.

 

Investments

 

Long-term investments consisted of the following as of December 31, 2008 and September 30, 2009:

 

 

 

As of

 

As of

 

 

 

December 31,

 

September 30,

 

 

 

2008

 

2009

 

 

 

(in thousands)

 

Investments stated at fair value

 

$

11,408

 

$

9,789

 

Investments stated at cost

 

9,300

 

9,300

 

Total long-term investments

 

$

20,708

 

$

19,089

 

 

Long-term investments in the Condensed Consolidated Balance Sheets include investments in other companies. Investments in other companies are accounted for under the cost method of accounting because the Company does not have the ability to exercise significant influence over the companies’ operations. Under the cost method of accounting, investments in private companies are carried at cost and are only adjusted for other-than-temporary declines in fair value and distributions of earnings. For cost method investments in public companies that have readily determinable fair values, the Company classifies its investments as available-for-sale and, accordingly, records these investments at their fair values with unrealized gains and losses included as a separate component of stockholders’ equity and in total comprehensive income. As of September 30, 2009, gross unrealized gains on available-for-sale investments were $8.2 million and there were no gross unrealized losses.  As of December 31, 2008, gross unrealized losses on available-for-sale investments were nominal and there were no gross unrealized gains.

 

Long-term investments in the Condensed Consolidated Balance Sheet as of December 31, 2008 also included the Company’s put right. The Company has a put right to sell its existing auction rate securities back to the broker beginning on June 30, 2010, which had a carrying value and fair value of $9.8 million and $5.3 million as of December 31, 2008 and September 30, 2009, respectively. The Company classified the put right as other current assets in the Condensed Consolidated Balance Sheet as of September 30, 2009. The Company elected the fair value option under ASC 825 for the put right and records the put right at fair value, with changes in fair value recognized as gain on investments, net in the Condensed Consolidated Statement of Operations. The fair value of the put right is estimated using a discounted cash flow analysis.

 

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EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Management regularly evaluates the recoverability of its investments based on the performance and the financial position of those companies as well as other evidence of market value. Such evaluation includes, but is not limited to, reviewing the investee’s cash position, recent financings, projected and historical financial performance, cash flow forecasts and financing needs. Management also regularly evaluates whether declines in fair values of its investments below their cost are potentially other than temporary. This evaluation consists of several qualitative and quantitative factors regarding the severity and duration of the unrealized loss as well as the Company’s ability and intent to hold the investment for a period of time to recover the cost basis of the investment.

 

During the nine months ended September 30, 2008, the Company recognized a net gain on investments of $5.7 million. This consisted of a gain of $4.4 million from the sale of HELIO to Virgin Mobile USA, Inc. and a gain of $2.0 million from the sale of the Company’s 6.1 million shares of Covad Communications Group, LLC common stock to Platinum Equity, LLC, offset by an impairment loss of $0.7 million due to other-than-temporary declines of the value of certain long-term investments. During the nine months ended September 30, 2009, the Company recognized a net gain on investments of $0.3 million. This consisted of $0.2 million in cash distributions from eCompanies Venture Group, L.P., a limited partnership that invested in domestic emerging Internet-related companies, and a net gain of $0.1 million related to the Company’s auction rate securities and put right.

 

7.  Purchased Intangible Assets and Goodwill

 

Goodwill

 

There were no changes in the carrying amount of goodwill during the nine months ended September 30, 2009.

 

Purchased Intangible Assets

 

The following table presents the components of the Company’s acquired identifiable intangible assets included in the accompanying Condensed Consolidated Balance Sheets as of December 31, 2008 and September 30, 2009:

 

 

 

As of December 31, 2008

 

As of September 30, 2009

 

 

 

Gross

 

 

 

Net

 

Gross

 

 

 

Net

 

 

 

Carrying

 

Accumulated

 

Carrying

 

Carrying

 

Accumulated

 

Carrying

 

 

 

Value

 

Amortization

 

Value

 

Value

 

Amortization

 

Value

 

 

 

(in thousands)

 

Intangible assets subject to amortization:

 

 

 

 

 

 

 

 

 

 

 

 

 

Subscriber bases and customer relationships

 

$

94,039

 

$

(77,758

)

$

16,281

 

$

94,039

 

$

(83,664

)

$

10,375

 

Software, technology and other

 

739

 

(649

)

90

 

711

 

(711

)

 

Trade names

 

1,521

 

(304

)

1,217

 

1,521

 

(532

)

989

 

 

 

96,299

 

(78,711

)

17,588

 

96,271

 

(84,907

)

11,364

 

Intangible assets not subject to amortization:

 

 

 

 

 

 

 

 

 

 

 

 

 

Trade names

 

1,964

 

 

1,964

 

1,964

 

 

1,964

 

 

 

$

 98,263

 

$

(78,711

)

$

19,552

 

$

98,235

 

$

(84,907

)

$

13,328

 

 

Amortization of intangible assets in the Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2008 and 2009 represents the amortization of definite-lived intangible assets. The Company’s definite-lived intangible assets primarily consist of subscriber bases and customer relationships, acquired software and technology, trade names and other assets acquired in conjunction with the purchases of businesses and subscriber bases from other companies that are not deemed to have indefinite lives. The Company’s identifiable indefinite-lived intangible assets consist of certain trade names. Definite-lived

 

12



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

intangible assets are amortized on a straight-line basis over their estimated useful lives, which are generally three to six years for subscriber bases and customer relationships and three years for acquired software and technology.  As of September 30, 2009, the weighted average amortization periods were 4.2 years for subscriber base assets and customer relationships, 3.0 years for software and technology and 5.0 years for trade names. Based on the current amount of definite-lived intangible assets, the Company expects to record amortization expense of approximately $1.5 million during the remaining three months in the year ending December 31, 2009 and $4.1 million, $2.9 million, $1.5 million, $0.8 million and $0.6 million during the years ending December 31, 2010, 2011, 2012, 2013 and thereafter, respectively. Actual amortization expense to be reported in future periods could differ materially from these estimates as a result of asset acquisitions, changes in useful lives and other relevant factors.

 

8.  Convertible Senior Notes

 

General

 

In November 2006, the Company issued $258.8 million aggregate principal amount of the Notes in a registered offering. The Company received net proceeds of $251.6 million after transaction fees of $7.2 million. The Notes bear interest at 3.25% per year on the principal amount of the Notes until November 15, 2011, and 3.50% interest per year on the principal amount of the Notes thereafter, payable semi-annually in May and November of each year. The Notes rank as senior unsecured obligations of the Company.

 

The Notes are payable with cash and, if applicable, are convertible into shares of the Company’s common stock. The initial conversion rate was 109.6491 shares per $1,000 principal amount of Notes (which represented an initial conversion price of approximately $9.12 per share). As a result of the Company’s cash dividend payment in September 2009, the conversion rate was adjusted and is 111.5096 shares per $1,000 principal amount of Notes (which represents a conversion price of approximately $8.97 per share), subject to further adjustment. Upon conversion, a holder will receive cash up to the principal amount of the Notes and, at the Company’s option, cash, or shares of the Company’s common stock or a combination of cash and shares of common stock for the remainder, if any, of the conversion obligation. The conversion obligation is based on the sum of the “daily settlement amounts” for the 20 consecutive trading days that begin on, and include, the second trading day after the day the notes are surrendered for conversion. The Notes will be convertible only in the following circumstances: (1) during any calendar quarter after the calendar quarter ending December 31, 2006 (and only during such calendar quarter), if the closing sale price of the Company’s common stock for each of 20 or more trading days in a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter exceeds 130% of the conversion price in effect on the last trading day of the immediately preceding calendar quarter; (2) during the five consecutive business days immediately after any five consecutive trading day period in which the average trading price per $1,000 principal amount of Notes was equal to or less than 98% of the average conversion value of the Notes during the note measurement period; (3) upon the occurrence of specified corporate transactions, including the payment of dividends in certain circumstances; (4) if the Company has called the Notes for redemption; and (5) at any time from, and including, October 15, 2011 to, and including, November 15, 2011 and at any time on or after November 15, 2024.  The Company has the option to redeem the Notes, in whole or in part, for cash, on or after November 15, 2011, provided that the Company has made at least ten semi-annual interest payments. In addition, the holders may require the Company to purchase all or a portion of their Notes on each of November 15, 2011, November 15, 2016 and November 15, 2021.

 

Adoption of New Accounting Guidance

 

On January 1, 2009, the Company adopted new accounting guidance related to accounting for convertible debt instruments that may be settled in cash upon conversion, which requires that the liability and equity components of convertible debt instruments that may be settled in cash upon conversion (including partial cash settlement) be separately accounted for in a manner that reflects an issuer’s non-convertible debt borrowing rate. The resulting debt discount is accreted over the period the convertible debt is expected to be outstanding as additional non-cash interest expense. The adoption of the new guidance on January 1, 2009 affected the

 

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Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Company’s accounting for the Notes. Upon adoption, the Company recorded an adjustment to increase additional paid-in capital as of the November 2006 issuance date by approximately $62.1 million. The Company is accreting the resulting debt discount to interest expense over the estimated five-year life of the Notes, which represents the first redemption date of November 2011. The Company recorded a pre-tax adjustment of approximately $22.3 million to retained earnings that represents the debt discount accretion during the years ended December 31, 2006, 2007 and 2008 and will recognize additional non-cash interest expense of $12.2 million, $13.4 million and $12.4 million during the years ending December 31, 2009, 2010 and 2011, respectively, for accretion of the debt discount.

 

As of December 31, 2008, the principal amount of the Notes, the unamortized discount and the net carrying value was $258.8 million, $39.0 million and $219.7 million, respectively. As of September 30, 2009, the principal amount of the Notes, the unamortized discount and the net carrying value was $258.8 million, $29.7 million and $229.0 million, respectively. As of December 31, 2008 and September 30, 2009, the fair value of the Notes was approximately $236.6 million and $284.9 million, respectively, based on the quoted market prices.

 

Classification

 

In July 2009 and October 2009, the Company’s Board of Directors declared quarterly cash dividends on its common stock. The Company currently intends to pay regular quarterly dividends on its common stock.  Under the terms of the indenture governing the Notes, the Company’s payment of cash dividends requires an adjustment to the conversion rate for the Notes. In addition, as a result of the adjustment, the Notes may be surrendered for conversion for a period of time between the declaration date and the record date, as defined in the indenture, for the consideration provided for in the indenture. As a result, the Company classified the Notes as a current liability in the Condensed Consolidated Balance Sheet as of September 30, 2009. The Notes were classified as long-term debt in the Condensed Consolidated Balance Sheet as of December 31, 2008.

 

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Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

9.  Stockholders’ Equity

 

Comprehensive Income

 

Comprehensive income includes unrealized gains and losses on certain investments classified as available-for-sale, net of tax, which are excluded from the Condensed Consolidated Statements of Operations. Comprehensive income for the three and nine months ended September 30, 2008 and 2009 was as follows:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

Net income

 

$

51,895

 

$

29,867

 

$

154,206

 

$

93,849

 

Unrealized holding (losses) gains on certain investments

 

(1,190

)

1,877

 

(2,214

)

8,293

 

Reclassification adjustment for realized gains on certain investments

 

 

 

(1,779

)

 

Total comprehensive income

 

$

50,705

 

$

31,744

 

$

150,213

 

$

102,142

 

 

Share Repurchases

 

Since the inception of the Company’s share repurchase program, the Board of Directors has authorized a total of $750.0 million for the repurchase of EarthLink’s common stock. As of September 30, 2009, the Company had $146.8 million available under the current authorization. The Company may repurchase its common stock from time to time in compliance with Securities and Exchange Commission regulations and other legal requirements, including through the use of derivative transactions, and subject to market conditions and other factors. The share repurchase program does not require the Company to acquire any specific number of shares and may be terminated by the Board of Directors at any time.

 

The Company repurchased 1.3 million shares of its common stock for $9.1 million during the nine months ended September 30, 2008. The Company repurchased 3.6 million shares of its common stock for $22.3 million during the nine months ended September 30, 2009.

 

Dividends

 

In July 2009, the Company’s Board of Directors declared a quarterly cash dividend on its common stock of $0.14 per share to stockholders of record on September 14, 2009.  The dividend was paid on September 28, 2009 and totaled $15.0 million. In October 2009, our Board of Directors declared a quarterly cash dividend on our common stock of $0.14 per share to be paid on December 23, 2009 to stockholders of record on December 9, 2009. The Company currently intends to pay regular quarterly dividends on its common stock.  The Board of Directors also approved the payment of cash dividend amounts on each outstanding restricted stock unit to be paid at the time the restricted stock unit vests. Any decision to declare future dividends will be made at the discretion of the Board of Directors and will depend on, among other things, the Company’s results of operations, financial condition, cash requirements, investment opportunities and other factors the Board of Directors may deem relevant.

 

15



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

10.  Stock-Based Compensation

 

The Company measures compensation cost for all stock awards at fair value on the date of grant and recognition of compensation expense over the requisite service period for awards expected to vest. The Company estimates the fair value of stock options using the Black-Scholes valuation model, and determines the fair value of restricted stock units based on the number of shares granted and the quoted price of EarthLink’s common stock on the date of grant. Such value is recognized as expense over the requisite service period, net of estimated forfeitures, using the straight-line attribution method. For performance-based awards, the Company recognizes expense over the requisite service period, net of estimated forfeitures, using the accelerated attribution method when it is probable that the performance measure will be achieved. The estimate of awards that will ultimately vest requires significant judgment, and to the extent actual results or updated estimates differ from the Company’s current estimates, such amounts will be recorded as a cumulative adjustment in the period estimates are revised. The Company considers many factors when estimating expected forfeitures, including types of awards, employee class and historical employee attrition rates. Actual results, and future changes in estimates, may differ substantially from the Company’s current estimates.

 

Stock-based compensation expense was $4.6 million and $3.1 million during the three months ended September 30, 2008 and 2009, respectively, and $14.3 million and $10.6 million during the nine months ended September 30, 2008 and 2009, respectively.  The Company has classified stock-based compensation expense during the three and nine months ended September 30, 2008 and 2009 within the same operating expense line items as cash compensation paid to employees.

 

Stock Incentive Plans

 

The Company has granted options to employees and directors to purchase the Company’s common stock under various stock incentive plans. The Company has also granted restricted stock units to employees and directors under various stock incentive plans. Under the plans, employees and non-employee directors are eligible to receive awards of various forms of equity-based incentive compensation, including stock options, restricted stock, restricted stock units and performance awards, among others. The plans are administered by the Board of Directors or the Leadership and Compensation Committee of the Board of Directors, which determine the terms of the awards granted. Stock options are generally granted with an exercise price equal to the market value of the Company’s common stock on the date of grant, have a term of ten years or less, and vest over terms of four to nine years from the date of grant. Restricted stock units are granted with various vesting terms that range from one to nine years from the date of grant.

 

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Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Options Outstanding

 

The following table summarizes information concerning stock option activity as of and for the nine months ended September 30, 2009:

 

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

 

Weighted

 

Average

 

 

 

 

 

 

 

Average

 

Remaining

 

Aggregate

 

 

 

 

 

Exercise

 

Contractual

 

Intrinsic

 

 

 

Stock Options

 

Price

 

Term (Years)

 

Value

 

 

 

(shares and dollars in thousands)

 

 

 

 

 

 

 

 

 

 

 

Outstanding as of December 31, 2008

 

7,159

 

$

9.58

 

 

 

 

 

Granted

 

 

 

 

 

 

 

Exercised

 

(1,917

)

6.92

 

 

 

 

 

Forfeited and expired

 

(998

)

13.61

 

 

 

 

 

Outstanding as of September 30, 2009

 

4,244

 

9.83

 

4.8

 

$

1,950

 

Vested and expected to vest as of September 30, 2009

 

4,072

 

$

9.94

 

4.7

 

$

1,748

 

Exercisable as of September 30, 2009

 

3,269

 

$

10.48

 

4.1

 

$

991

 

 

The aggregate intrinsic value amounts in the table above represent the closing price of the Company’s common stock on September 30, 2009 in excess of the exercise price, multiplied by the number of stock options outstanding or exercisable, when the closing price is greater than the exercise price. This represents the amount that would have been received by the stock option holders if they had all exercised their stock options on September 30, 2009. The total intrinsic value of options exercised during the three and nine months ended September 30, 2008 was $0.7 million and $2.2 million, respectively. The total intrinsic value of options exercised during the three and nine months ended September 30, 2009 was $2.2 million and $2.5 million, respectively. The intrinsic value of stock options exercised represents the difference between the closing price of the Company’s common stock at the time of exercise and the exercise price, multiplied by the number of stock options exercised. To the extent the forfeiture rate is different than what the Company has anticipated, stock-based compensation related to these awards will be different from the Company’s expectations.

 

17



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

The following table summarizes the status of the Company’s stock options as of September 30, 2009:

 

 

 

 

 

 

 

 

 

 

 

Stock Options

 

Stock Options Outstanding

 

Exercisable

 

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

 

 

 

 

 

 

 

Average

 

Weighted

 

 

 

Weighted

 

 

 

 

 

 

 

Remaining

 

Average

 

 

 

Average

 

Range of

 

Number

 

Contractual

 

Exercise

 

Number

 

Exercise

 

Exercise Prices

 

Outstanding

 

Life

 

Price

 

Exercisable

 

Price

 

 

 

 

 

(in thousands)

 

 

 

 

 

(in thousands)

 

 

 

$

 5.10

to

$

6.86

 

384

 

5.5

 

$

6.28

 

259

 

$

6.01

 

6.90

to

7.25

 

383

 

7.4

 

7.00

 

156

 

7.01

 

7.31

to

7.31

 

400

 

7.7

 

7.31

 

50

 

7.31

 

7.32

to

8.96

 

330

 

5.4

 

8.10

 

254

 

8.22

 

9.01

to

9.01

 

440

 

4.8

 

9.01

 

440

 

9.01

 

9.23

to

9.51

 

429

 

6.2

 

9.44

 

244

 

9.41

 

9.64

to

10.06

 

694

 

1.6

 

9.88

 

694

 

9.88

 

10.36

to

35.25

 

1,184

 

4.0

 

13.65

 

1,172

 

13.67

 

$

 5.10

to

$

35.25

 

4,244

 

4.8

 

$

9.83

 

3,269

 

$

10.48

 

 

Restricted Stock Units

 

The following table summarizes the Company’s restricted stock units as of and for the nine months ended September 30, 2009:

 

 

 

 

 

Weighted

 

 

 

 

 

Average

 

 

 

Restricted

 

Grant Date

 

 

 

Stock Units

 

Fair Value

 

 

 

(in thousands)

 

 

 

Nonvested as of December 31, 2008

 

4,123

 

$

7.20

 

Granted

 

352

 

7.39

 

Vested

 

(1,781

)

7.19

 

Forfeited

 

(285

)

7.20

 

Nonvested as of September 30, 2009

 

2,409

 

$

7.23

 

 

The fair value of restricted stock units is determined based on the closing price of the Company’s common stock on the grant date. The weighted-average grant date fair value of restricted stock units granted during the nine months ended September 30, 2008 and 2009 was $7.20 and $7.39, respectively. As of September 30, 2009, there was $6.9 million of total unrecognized compensation cost related to nonvested restricted stock units. That cost is expected to be recognized over a weighted-average period of 1.6 years. The total fair value of shares vested during the nine months ended September 30, 2008 and 2009 was $5.7 million and $13.5 million, respectively, which represents the closing price of the Company’s common stock on the vesting date multiplied by the number of restricted stock units that vested.

 

18



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

11. Income Taxes

 

EarthLink recorded an income tax provision of $7.9 million and $16.9 million during the three months ended September 30, 2008 and 2009, respectively, and $23.9 million and $55.8 million during the nine months ended September 30, 2008 and 2009, respectively. The income tax provision was based on management’s current expectations in accordance with the interim reporting requirements.

 

The major components of the income tax provision for the three and nine months ended September 30, 2008 and 2009 are as follows:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

 

 

 

 

 

 

 

 

 

 

Federal alternative minumum tax

 

$

1,030

 

$

329

 

$

3,392

 

$

2,525

 

State income tax

 

2,967

 

884

 

4,225

 

4,179

 

Other

 

(100

)

 

(500

)

 

Current provision

 

3,897

 

1,213

 

7,117

 

6,704

 

 

 

 

 

 

 

 

 

 

 

Deferred provision

 

4,027

 

15,701

 

16,806

 

49,050

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

7,924

 

$

16,914

 

$

23,923

 

$

55,754

 

 

During the year ended December 31, 2008, the Company released $65.6 million of its valuation allowance related to its deferred tax assets. These deferred tax assets primarily related to net operating loss carryforwards which the Company determined it would more likely than not be able to utilize due to the generation of sufficient taxable income in 2009. For the three and nine months ended September 30, 2009, the non-cash deferred tax provision recorded was primarily a result of the utilization of these federal and state net operating loss tax assets.  The current federal and state tax liabilities are payable as a result of limitations on net operating loss utilization associated with the alternative minimum tax calculation and state laws.

 

EarthLink continues to maintain a partial valuation allowance against its unrealized deferred tax assets, which include net operating loss carryforwards.  EarthLink may recognize additional deferred tax assets in future periods when they are determined to be more likely than not realizable.  To the extent EarthLink reports income in future periods, EarthLink intends to use its net operating loss carryforwards to the extent available to offset taxable income and reduce cash outflows for income taxes.  The Company’s ability to use its federal and state net operating loss carryforwards and federal and state tax credit carryforwards may be subject to restrictions attributable to equity transactions in the future resulting from changes in ownership as defined under the Internal Revenue Code.

 

The Company has identified its federal tax return and its state tax returns in California, Florida, Georgia and Illinois as “major” tax jurisdictions, for purposes of calculating its uncertain tax positions.  Periods extending back to 1994 are still subject to examination for all “major” jurisdictions. The Company believes that its income tax filing positions and deductions will be sustained on audit and does not anticipate any adjustments that will result in a material adverse effect on the Company’s financial condition, results of operations or cash flows.  The Company’s policy for recording interest and penalties associated with audits is to record such items as a component of income taxes.  No adjustments were made for uncertain tax positions during the quarter.

 

19



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

12.  Fair Value Measurements

 

Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (an exit price). A three-tier fair value hierarchy is used to prioritize the inputs used in measuring fair value.  These tiers include: Level 1, defined as observable inputs such as quoted prices in active markets; Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable; and Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions.

 

As of September 30, 2009, the Company held certain assets that are required to be measured at fair value on a recurring basis.  These included the Company’s cash equivalents, marketable securities, auction rate securities, equity investments in other companies, and the put right.

 

The following table presents the Company’s assets measured at fair value on a recurring basis as of September 30, 2009:

 

 

 

 

 

 

 

Fair Value Measurements as of September 30, 2009 Using

 

 

 

 

 

 

 

Quoted Prices

 

Significant

 

 

 

 

 

 

 

 

 

in Active

 

Other

 

Significant

 

 

 

 

 

 

 

Markets for

 

Observable

 

Unobservable

 

 

 

Carrying

 

Fair

 

Identical Assets

 

Inputs

 

Inputs

 

Description

 

Value

 

Value

 

(Level 1)

 

(Level 2)

 

(Level 3)

 

 

 

 

 

(in thousands)

 

Cash equivalents

 

$

544,904

 

$

544,904

 

$

544,904

 

$

 

$

 

Marketable securities

 

49,611

 

49,611

 

49,611

 

 

 

Auction rate securities

 

42,987

 

42,987

 

 

 

42,987

 

Equity investments in other companies

 

9,789

 

9,789

 

750

 

9,039

 

 

Put right

 

5,256

 

5,256

 

 

 

5,256

 

Total

 

$

652,547

 

$

652,547

 

$

595,265

 

$

9,039

 

$

48,243

 

 

Cash equivalents, marketable securities, auction rate securities, equity investments in other companies and the Company’s put right are measured at fair value.  Cash equivalents, marketable securities and equity investments in other companies that are valued using quoted market prices are classified within Level 1. The Company’s investment in Virgin Mobile is valued using quoted prices for similar assets and is classified within Level 2. Investments in auction rate securities are classified within Level 3 because they are valued using a discounted cash flow model. Some of the inputs to this model are unobservable in the market and are significant. The Company’s put right is estimated using a discounted cash flow analysis and is classified within Level 3. The Company has consistently applied these valuation techniques in all periods presented.

 

The Company has invested in auction rate securities, which are more fully described in Note 6, “Investments.”  Beginning in February 2008, these instruments held by the Company failed to attract sufficient buyers.  As a result, these securities do not have a readily determinable market value and are not liquid. The fair values of the Company’s auction rate securities as of September 30, 2009 were estimated utilizing a discounted cash flow analysis.  These analyses consider, among other items, the collateralization underlying the security investments, the creditworthiness of the counterparty, and the timing and value of expected future cash flows.  These securities were also compared, when possible, to other observable market data with similar characteristics to the securities held by the Company.

 

In October 2008, EarthLink entered into an agreement with the broker that sold the Company its auction rate securities that gives the Company the right to sell its existing auction rate securities back to the broker at par plus accrued interest, beginning on June 30, 2010 until July 2, 2012. The Company elected the fair value option for the put right to offset the fair value changes of the auction rate securities. The fair value of the put right is

 

20



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

estimated using a discounted cash flow analysis and is classified within Level 3. The put right was classified as long-term investments as of December 31, 2008 and as other current assets as of September 30, 2009 in the Condensed Consolidated Balance Sheets.

 

The following table presents a reconciliation of the beginning and ending balances of the Company’s assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) as of September 30, 2009:

 

 

 

Auction

 

 

 

 

 

 

 

Rate

 

Put

 

 

 

 

 

Securities

 

Right

 

Total

 

 

 

(in thousands)

 

Balance as of December 31, 2008

 

$

47,809

 

$

9,828

 

$

57,637

 

Total realized gains

 

4,678

 

 

4,678

 

Total realized losses

 

 

(4,572

)

(4,572

)

Settlements

 

(9,500

)

 

(9,500

)

Balance as of September 30, 2009

 

$

42,987

 

$

5,256

 

$

48,243

 

 

During the nine months ended September 30, 2009, the Company redeemed $9.5 million of auction rate securities at par, plus accrued interest. During the nine months ended September 30, 2009, the Company recorded realized gains of $4.7 million related to its auction rate securities and recorded realized losses of $4.6 million related to its put right, which are included in gain on investments, net, in the Condensed Consolidated Statement of Operations.

 

13.  Segment Information

 

The Company reports segment information along the same lines that its chief executive officer reviews its operating results in assessing performance and allocating resources. The Company operates two reportable segments, Consumer Services and Business Services. The Company’s Consumer Services segment provides Internet access services and related value-added services to individual customers. These services include dial-up and high-speed Internet access and voice services, among others. The Company’s Business Services segment provides integrated communications services and related value-added services to businesses and communications carriers. These services include managed private IP-based wide area networks, dedicated Internet access and web hosting, among others.

 

The Company evaluates performance of its segments based on segment income from operations. Segment income from operations includes revenues from external customers, related cost of revenues and operating expenses directly attributable to the segment, which include costs over which segment managers have direct discretionary control, such as advertising and marketing programs, customer support expenses, operations expenses, product development expenses, certain technology and facilities expenses, billing operations and provisions for doubtful accounts. Segment income from operations excludes other income and expense items and certain expenses over which segment managers do not have discretionary control. Costs excluded from segment income from operations include various corporate expenses (consisting of certain costs such as corporate management, human resources, finance and legal), amortization of intangible assets, impairment of goodwill and intangible assets, facility exit and restructuring costs, and stock-based compensation expense, as they are not considered in the measurement of segment performance.

 

21



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Information on reportable segments and a reconciliation to consolidated income from operations for the three and nine months ended September 30, 2008 and 2009 is as follows:

 

 

 

Three Months Ended September 30,

 

Nine Months Ended September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

Consumer Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

187,799

 

$

138,176

 

$

605,340

 

$

445,344

 

Cost of revenues

 

62,550

 

45,211

 

201,053

 

144,890

 

Gross margin

 

125,249

 

92,965

 

404,287

 

300,454

 

Direct segment operating expenses

 

49,803

 

31,039

 

164,496

 

101,617

 

Segment operating income

 

$

75,446

 

$

61,926

 

$

239,791

 

$

198,837

 

 

 

 

 

 

 

 

 

 

 

Business Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

43,032

 

$

36,345

 

$

134,168

 

$

113,837

 

Cost of revenues

 

25,066

 

21,674

 

76,602

 

66,830

 

Gross margin

 

17,966

 

14,671

 

57,566

 

47,007

 

Direct segment operating expenses

 

12,481

 

10,257

 

39,308

 

31,339

 

Segment operating income

 

$

5,485

 

$

4,414

 

$

18,258

 

$

15,668

 

 

 

 

 

 

 

 

 

 

 

Consolidated

 

 

 

 

 

 

 

 

 

Revenues

 

$

230,831

 

$

174,521

 

$

739,508

 

$

559,181

 

Cost of revenues

 

87,616

 

66,885

 

277,655

 

211,720

 

Gross margin

 

143,215

 

107,636

 

461,853

 

347,461

 

Direct segment operating expenses

 

62,284

 

41,296

 

203,804

 

132,956

 

Segment operating income

 

80,931

 

66,340

 

258,049

 

214,505

 

Stock-based compensation expense

 

4,597

 

3,136

 

14,319

 

10,552

 

Amortization of intangible assets

 

3,153

 

2,039

 

11,153

 

6,224

 

Facility exit and restructuring costs

 

1,078

 

(97

)

4,169

 

5,318

 

Other operating expenses

 

12,674

 

9,449

 

39,714

 

28,655

 

Income from operations

 

$

59,429

 

$

51,813

 

$

188,694

 

$

163,756

 

 

The primary component of the Company’s revenues is access and service revenues, which consist of narrowband access services (including traditional, fully-featured narrowband access and value-priced narrowband access); broadband access services (including high-speed access via DSL and cable technologies, VoIP and managed private IP-based networks); and web hosting services. The Company also earns revenues from value-added services, which include ancillary services sold as add-on features to the Company’s access services, search and advertising revenues.

 

Consumer access and service revenues consist of narrowband access, broadband access and voice services. These revenues are derived from monthly fees charged to customers for dial-up Internet access; monthly fees charged for high-speed access services; fees charged for VoIP services; usage fees; installation fees; termination fees; and fees for equipment. Consumer value-added services revenues consist of revenues from ancillary services sold as add-on features to the Company’s Internet services, such as security products, email by phone, Internet call waiting, email storage and home networking; search revenues; and advertising revenues.

 

Business access and service revenues consist of fees charged for managing private IP-based networks; fees charged for business Internet access and dedicated circuit services; installation fees; termination fees; fees for equipment; regulatory surcharges billed to customers; and fees charged for leasing server space and providing web services to customers wishing to have a web or e-commerce presence.

 

22



Table of Contents

 

EARTHLINK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED - (Continued)

 

Information on revenues by groups of similar services and by segment for the three and nine months ended September 30, 2008 and 2009 is as follows:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

Consumer Services

 

 

 

 

 

 

 

 

 

Access and service

 

$

164,306

 

$

120,935

 

$

529,557

 

$

390,204

 

Value-added services

 

23,493

 

17,241

 

75,783

 

55,140

 

Total revenues

 

187,799

 

138,176

 

605,340

 

445,344

 

 

 

 

 

 

 

 

 

 

 

Business Services

 

 

 

 

 

 

 

 

 

Access and service

 

42,387

 

35,796

 

132,026

 

112,143

 

Value-added services

 

645

 

549

 

2,142

 

1,694

 

Total revenues

 

43,032

 

36,345

 

134,168

 

113,837

 

 

 

 

 

 

 

 

 

 

 

Consolidated

 

 

 

 

 

 

 

 

 

Access and service

 

206,693

 

156,731

 

661,583

 

502,347

 

Value-added services

 

24,138

 

17,790

 

77,925

 

56,834

 

Total revenues

 

$

230,831

 

$

174,521

 

$

739,508

 

$

559,181

 

 

The Company manages its working capital on a consolidated basis and does not allocate long-lived assets to segments. In addition, segment assets are not reported to, or used by, the chief operating decision maker and, therefore, total segment assets have not been disclosed.

 

The Company has not provided information about geographic segments because substantially all of the Company’s revenues, results of operations and identifiable assets are in the United States.

 

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Table of Contents

 

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

 

Certain statements in this Quarterly Report on Form 10-Q are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934. The words “estimate,” “plan,” “intend,” “expect,” “anticipate,” “believe” and similar expressions are intended to identify forward-looking statements. These forward-looking statements are found at various places throughout this report. EarthLink disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Although EarthLink believes that its expectations are based on reasonable assumptions, it can give no assurance that its goals will be achieved. Important factors that could cause actual results to differ from estimates or projections contained in the forward-looking statements are described under “Safe Harbor Statement” in this Item 2.

 

The following discussion should be read in conjunction with the accompanying unaudited Condensed Consolidated Financial Statements and related Notes thereto and with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the audited Consolidated Financial Statements and the Notes thereto contained in the Annual Report on Form 10-K for the year ended December 31, 2008.

 

Overview

 

EarthLink, Inc. is an Internet service provider (“ISP”), providing nationwide Internet access and related value-added services to individual and business customers. Our primary service offerings are dial-up and high-speed Internet access services and related value-added services, such as ancillary services sold as add-on features to our Internet access services, search and advertising. In addition, through our wholly-owned subsidiary, New Edge Networks (“New Edge”), we build and manage private IP-based wide area networks for businesses and communications carriers.

 

We operate two reportable segments, Consumer Services and Business Services. Our Consumer Services segment provides Internet access and related value-added services to individual customers. These services include dial-up and high-speed Internet access and voice-over-Internet Protocol (“VoIP”) services, among others. Our Business Services segment provides integrated communications services, dedicated Internet access and related value-added services to businesses and communications carriers. These services include managed private IP-based wide area networks, dedicated Internet access and web hosting, among others.

 

Business Strategy

 

Our business strategy is to focus on customer retention, operational efficiency and opportunities for growth.

 

·                  Customer Retention. We are focused on retaining our existing tenured customers. We believe focusing on the customer relationship increases loyalty and reduces churn.  We also believe that these tenured customers provide cost benefits, including reduced call center support costs and reduced bad debt expense. We continue to focus on offering our access services with high-quality customer service and technical support.

 

·                  Operational Efficiency. We are focused on improving the cost structure of our business and aligning our cost structure with trends in our revenue, without impacting the quality of services we provide. We are focused on delivering our services more cost effectively by reducing and more efficiently handling the number of calls to contact centers, managing cost-effective outsourcing opportunities, managing our network costs, implementing workforce reduction initiatives and streamlining our internal processes and operations.

 

·                  Opportunities for Growth.  In response to changes in our business, we have significantly reduced our sales and marketing spending. However, we continue to seek to add customers that generate an

 

24



Table of Contents

 

acceptable rate of return and increase the number of subscribers we add through alliances, partnerships and acquisitions from other ISPs.  We also continue to evaluate potential strategic transactions within the business segments in which we currently operate.

 

The primary challenges we face in executing our business strategy are managing the rate of decline in our revenues, responding to competition, reducing churn, implementing cost reduction initiatives, purchasing cost-effective wholesale broadband access and adding customers that generate an acceptable rate of return. In addition, there can be no assurance that we will be able to consummate any such potential strategic transaction. The factors we believe are instrumental to the achievement of our business strategy may be subject to events and circumstances that are beyond our control. Further, we can provide no assurance that we will be successful in achieving any or all of the strategies identified above, that the achievement or existence of such strategies will favorably impact profitability, or that other factors will not arise that would adversely affect future profitability.

 

Revenue Sources

 

The primary component of our revenues is access and service revenues, which consist of narrowband access services (including traditional, fully-featured narrowband access and value-priced narrowband access); broadband access services (including high-speed access via DSL and cable; VoIP; and managed private IP-based networks); and web hosting services. We also earn revenues from value-added services, which include revenues from ancillary services sold as add-on features to our Internet access services, such as security products, premium email only, email by phone, Internet call waiting, email storage and home networking; search revenues; and advertising revenues.

 

Narrowband access revenues consist of fees charged to customers for dial-up Internet access. Broadband access revenues consist of fees charged for high-speed access services; fees charged for managing private IP-based networks; fees charged for VoIP services; usage fees; activation fees; termination fees; fees for equipment; and regulatory surcharges billed to customers. Web hosting revenues consist of fees charged for leasing server space and providing web services to customers wishing to have a web or e-commerce presence. Value-added services revenues consist of fees charged for ancillary services; fees charged for paid placements for searches; delivering traffic to EarthLink’s partners in the form of subscribers, page views or e-commerce transactions; advertising EarthLink partners’ products and services in EarthLink’s various online properties and electronic publications; and referring EarthLink customers to partners’ products and services.

 

Trends in our Business

 

Consumer services. We operate in the Internet access market, which is characterized by intense competition, changing technology, changes in customer needs and new service and product introductions. Consumers continue to migrate from dial-up to broadband access service due to the faster connection and download speeds provided by broadband access, the ability to free up their phone lines and the more reliable and “always on” connection. The pricing for broadband services has been declining, making it a more viable option for consumers that continue to rely on dial-up connections for Internet access. In addition, advanced applications such as online gaming, music downloads, videos and social networking require greater bandwidth for optimal performance, which adds to the demand for broadband access. Our narrowband subscriber base and revenues have been declining and are expected to continue to decline due to the continued maturation of the market for narrowband access.

 

In light of this continued maturation of the market for narrowband access, we refocused our business strategy to significantly reduce our sales and marketing efforts and focus instead on retaining tenured customers and adding customers that have similar characteristics of our tenured customer base and are more likely to produce an acceptable rate of return. However, we expect the rate of revenue decline to decrease as our subscriber base becomes more tenured. We experienced an improvement in consumer subscriber churn rates during the three and nine months ended September 30, 2009 compared to the prior year periods. However, our consumer access services are discretionary and dependent upon levels of consumer spending. Unfavorable economic conditions could cause customers to slow spending in the future, which could adversely affect our revenues and churn, and we may not be able to align our cost structure with a decline in our revenue.

 

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Table of Contents

 

Consistent with trends in the Internet access industry, the mix of our consumer access subscriber base has been shifting from narrowband access to broadband access customers. Consumer broadband access revenues have lower gross margins than narrowband revenues due to the costs associated with delivering broadband services. This change in mix has negatively affected our profitability and we expect this trend to continue as broadband subscribers continue to become a greater proportion of our consumer access subscriber base. However, our consumer broadband access customers also have lower churn rates than our consumer narrowband access customers. Accordingly, we expect to realize benefits from a more tenured subscriber base, such as reduced support costs and lower bad debt expense.

 

Business services. The markets in which we operate our business services are characterized by industry consolidation, the emergence of new technologies and intense competition. We sell our services to end user business customers and to wholesale customers. Our end users range from large enterprises with many locations, to small and medium-sized multi-site businesses to business customers with one site, often a home-based location. Many of our end user customers are retail businesses. Our wholesale customers consist primarily of telecommunications carriers. Our business has become more focused on end users as a result of mergers in the telecommunications industry. In addition, our small and medium-sized business customers, including retail businesses, are particularly exposed to the current economic downturn. We have experienced pressure on revenue for our business services, given the current state of the economy. However, we are seeking ways to grow our business services revenue while operating this segment more efficiently.

 

Third Quarter 2009 Highlights

 

Total revenues decreased $56.3 million, or 24%, from the three months ended September 30, 2008 to the three months ended September 30, 2009, as our subscriber base decreased from approximately 3.0 million paying subscribers as of September 30, 2008 to approximately 2.3 million paying subscribers as of September 30, 2009. The decrease in subscribers was attributable to our reduced sales and marketing activities, as well as the continuing maturation of the narrowband Internet access market. Offsetting the decline in total revenues was a $48.7 million, or 28%, decline in total operating costs and expenses. Total operating costs and expenses decreased primarily due to reduced telecommunications costs, sales and marketing spending, back-office support costs and customer support and bad debt expense as our overall subscriber base has decreased and become longer tenured. Our longer tenured customers require less customer service and technical support and have a lower frequency of non-payment. We recognized net income of $29.9 million during the three months ended September 30, 2009 compared to $51.9 million during the three months ended September 30, 2008. The decrease in net income was primarily due to the decrease in revenues and an increase in our income tax provision, offset by the decrease in total operating costs and expenses described above.

 

Looking Ahead

 

We expect total revenues to continue to decrease during the remainder of 2009 and into 2010 as we continue to reduce our sales and marketing efforts, and as the market for Internet access continues to mature. However, we expect the rate of revenue decline to decelerate as our customer base becomes longer tenured and churn rates go down. Consistent with trends in the Internet access industry, we expect the mix of our consumer access subscriber base to continue to shift from narrowband access to broadband access customers, which will negatively affect our profitability. We also expect economic conditions to put continued pressure on revenue and churn rates for our business services, and may impact revenue and churn for our consumer services. We expect cost savings associated with our decreased sales and marketing activities during the remainder of 2009 and into 2010, and decreased support costs from a lower and longer tenured customer base and as a result of our efforts to reduce our cost structure. We are implementing certain cost cutting initiatives in the remainder of 2009 as part of our efforts to align costs with trends in our revenue. However, we believe that large-scale cost reduction opportunities will be more limited in the future.  In addition, although we seek to align our cost structure with trends in our revenue, we may not be able to reduce our cost structure to the same extent as our revenue declines.

 

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Table of Contents

 

Dividends

 

In July 2009, our Board of Directors declared a quarterly cash dividend on our common stock of $0.14 per share to stockholders of record on September 14, 2009. The dividend was paid on September 28, 2009 and totaled $15.0 million. In October 2009, our Board of Directors declared a quarterly cash dividend on our common stock of $0.14 per share to be paid on December 23, 2009 to stockholders of record on December 9, 2009. We currently intend to continue to pay regular quarterly dividends on our common stock.  The Board of Directors also approved the payment of cash dividend amounts on each outstanding restricted stock unit to be paid at the time the restricted stock unit vests. Any decision to declare future dividends will be made at the discretion of the Board of Directors and will depend on, among other things, our results of operations, financial condition, cash requirements, investment opportunities and other factors the Board of Directors may deem relevant.

 

Key Operating Metrics

 

We utilize certain non-financial and operating measures to assess our financial performance. Terms such as churn and average revenue per user (“ARPU”) are terms commonly used in our industry. The following table sets forth subscriber and operating data for the periods indicated:

 

 

 

September 30,

 

December 31,

 

June 30,

 

September 30,

 

 

 

2008

 

2008

 

2009

 

2009

 

Subscriber Data (a)

 

 

 

 

 

 

 

 

 

Consumer Services

 

 

 

 

 

 

 

 

 

Narrowband access subscribers

 

1,920,000

 

1,747,000

 

1,456,000

 

1,329,000

 

Broadband access subscribers (b)

 

933,000

 

896,000

 

845,000

 

832,000

 

Total consumer services

 

2,853,000

 

2,643,000

 

2,301,000

 

2,161,000

 

Business Services

 

 

 

 

 

 

 

 

 

Narrowband access subscribers

 

19,000

 

17,000

 

11,000

 

9,000

 

Broadband access subscribers

 

61,000

 

59,000

 

56,000

 

55,000

 

Web hosting accounts

 

91,000

 

87,000

 

81,000

 

78,000

 

Total business services

 

171,000

 

163,000

 

148,000

 

142,000

 

Total subscriber count at end of period

 

3,024,000

 

2,806,000

 

2,449,000

 

2,303,000

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

Subscriber Activity

 

 

 

 

 

 

 

 

 

Subscribers at beginning of period

 

3,299,000

 

2,449,000

 

3,876,000

 

2,806,000

 

Gross organic subscriber additions

 

137,000

 

108,000

 

552,000

 

344,000

 

Aquired subscribers

 

2,000

 

 

2,000

 

 

Adjustment (c)

 

(15,000

)

 

(15,000

)

(7,000

)

Churn

 

(399,000

)

(254,000

)

(1,391,000

)

(840,000

)

Subscribers at end of period

 

3,024,000

 

2,303,000

 

3,024,000

 

2,303,000

 

 

 

 

 

 

 

 

 

 

 

Churn rate (d)

 

4.2

%

3.6

%

4.5

%

3.7

%

 

 

 

 

 

 

 

 

 

 

Consumer Services Data

 

 

 

 

 

 

 

 

 

Average subscribers (e)

 

2,980,000

 

2,207,000

 

3,256,000

 

2,382,000

 

ARPU (f)

 

$

21.00

 

$

20.87

 

$

20.66

 

$

20.77

 

Churn rate (d)

 

4.3

%

3.7

%

4.6

%

3.8

%

 

 

 

 

 

 

 

 

 

 

Business Services Data

 

 

 

 

 

 

 

 

 

Average subscribers (e)

 

176,000

 

144,000

 

183,000

 

152,000

 

ARPU (f)

 

$

81.50

 

$

84.08

 

$

81.33

 

$

82.98

 

Churn rate (d)

 

3.2

%

2.5

%

2.8

%

2.8

%

 

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(a) Subscriber counts do not include nonpaying customers. Customers receiving service under promotional programs that include periods of free service at inception are not included in subscriber counts until they become paying customers.

 

(b) Customers who subscribe to our EarthLink DSL and Home Phone service are counted as both a broadband subscriber and a voice subscriber.

 

(c)  During the nine months ended September 30, 2009, we removed approximately 7,000 satellite subscribers from our broadband subscriber count and total subscriber count as a result of our sale of these subscriber accounts. During the three and nine months ended September 30, 2008, we removed approximately 15,000 EarthLink supported Sprint customers from our broadband subscriber counts due to the termination of a wholesale arrangement by Sprint.

 

(d)  Churn rate is used to measure the rate at which subscribers discontinue service on a voluntary or involuntary basis.  Churn rate is computed by dividing the average monthly number of subscribers that discontinued service during the period by the average subscribers for the period.

 

(e)  Average subscribers or accounts for the three month periods is calculated by averaging the ending monthly subscribers or accounts for the four months preceding and including the end of the quarterly period. Average subscribers or accounts for the nine month periods is calculated by averaging the ending monthly subscribers or accounts for the ten months preceding and including the end of the quarterly period.

 

(f) ARPU represents the average monthly revenue per user (subscriber). ARPU is computed by dividing average monthly revenue for the period by the average number of subscribers for the period. Average monthly revenue used to calculate ARPU includes recurring service revenue as well as nonrecurring revenues associated with equipment and other one-time charges associated with initiating or discontinuing services.

 

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Table of Contents

 

Results of Operations

 

Consolidated Results of Operations

 

The following table sets forth statement of operations data for the three months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended September 30,

 

Change Between

 

 

 

2008

 

2009

 

2008 and 2009

 

 

 

 

 

% of

 

 

 

% of

 

 

 

 

 

 

 

Amount

 

Revenue

 

Amount

 

Revenue

 

Amount

 

%

 

 

 

(dollars in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

230,831

 

100%

 

$

174,521

 

100%

 

$

(56,310

)

-24%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of revenues

 

87,616

 

38%

 

66,885

 

38%

 

(20,731

)

-24%

 

Sales and marketing

 

22,191

 

10%

 

13,840

 

8%

 

(8,351

)

-38%

 

Operations and customer support

 

34,048

 

15%

 

23,569

 

14%

 

(10,479

)

-31%

 

General and administrative

 

23,316

 

10%

 

16,472

 

9%

 

(6,844

)

-29%

 

Amortization of intangible assets

 

3,153

 

1%

 

2,039

 

1%

 

(1,114

)

-35%

 

Facility exit and restructuring costs

 

1,078

 

0%

 

(97

)

0%

 

(1,175

)

-109%

 

Total operating costs and expenses

 

171,402

 

74%

 

122,708

 

70%

 

(48,694

)

-28%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income from operations

 

59,429

 

26%

 

51,813

 

30%

 

(7,616

)

-13%

 

Gain on investments, net

 

4,352

 

2%

 

35

 

0%

 

(4,317

)

-99%

 

Interest expense and other, net

 

(3,281

)

-1%

 

(5,067

)

-3%

 

(1,786

)

54%

 

Income from continuing operations before income taxes

 

60,500

 

26%

 

46,781

 

27%

 

(13,719

)

-23%

 

Income tax provision

 

(7,924

)

-3%

 

(16,914

)

-10%

 

(8,990

)

113%

 

Income from continuing operations

 

52,576

 

23%

 

29,867

 

17%

 

(22,709

)

-43%

 

Loss from discontinued operations

 

(681

)

0%

 

 

0%

 

681

 

-100%

 

Net income

 

$

51,895

 

22%

 

$

29,867

 

17%

 

$

(22,028

)

-42%

 

 

29



Table of Contents

 

The following table sets forth statement of operations data for the nine months ended September 30, 2008 and 2009:

 

 

 

Nine Months Ended September 30,

 

Change Between

 

 

 

2008

 

2009

 

2008 and 2009

 

 

 

 

 

% of

 

 

 

% of

 

 

 

 

 

 

 

Amount

 

Revenue

 

Amount

 

Revenue

 

Amount

 

%

 

 

 

(dollars in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

739,508

 

100%

 

$

559,181

 

100%

 

$

(180,327

)

-24%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of revenues

 

277,655

 

38%

 

211,720

 

38%

 

(65,935

)

-24%

 

Sales and marketing

 

78,913

 

11%

 

45,405

 

8%

 

(33,508

)

-42%

 

Operations and customer support

 

106,914

 

14%

 

75,255

 

13%

 

(31,659

)

-30%

 

General and administrative

 

72,010

 

10%

 

51,503

 

9%

 

(20,507

)

-28%

 

Amortization of intangible assets

 

11,153

 

2%

 

6,224

 

1%

 

(4,929

)

-44%

 

Facility exit and restructuring costs

 

4,169

 

1%

 

5,318

 

1%

 

1,149

 

28%

 

Total operating costs and expenses

 

550,814

 

74%

 

395,425

 

71%

 

(155,389

)

-28%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income from operations

 

188,694

 

26%

 

163,756

 

29%

 

(24,938

)

-13%

 

Gain on investments, net

 

5,677

 

1%

 

305

 

0%

 

(5,372

)

-95%

 

Interest expense and other, net

 

(7,804

)

-1%

 

(14,458

)

-3%

 

(6,654

)

85%

 

Income from continuing operations before income taxes

 

186,567

 

25%

 

149,603

 

27%

 

(36,964

)

-20%

 

Income tax provision

 

(23,923

)

-3%

 

(55,754

)

-10%

 

(31,831

)

133%

 

Income from continuing operations

 

162,644

 

22%

 

93,849

 

17%

 

(68,795

)

-42%

 

Loss from discontinued operations

 

(8,438

)

-1%

 

 

0%

 

8,438

 

-100%

 

Net income

 

$

154,206

 

21%

 

$

93,849

 

17%

 

$

(60,357

)

-39%

 

 

Segment Results of Operations

 

We have two operating segments, Consumer Services and Business Services. We present our segment information along the same lines that our chief executive reviews our operating results in assessing performance and allocating resources. Our Consumer Services segment provides Internet access services and related value-added services to individual customers. These services include dial-up and high-speed Internet access and VoIP services, among others. Our Business Services segment provides integrated communications services and related value-added services to businesses and communications carriers. These services include managed private IP-based wide area networks, dedicated Internet access and web hosting, among others.

 

We evaluate the performance of our operating segments based on segment income from operations. Segment income from operations includes revenues from external customers, related cost of revenues and operating expenses directly attributable to the segment, which include expenses over which segment managers have direct discretionary control, such as advertising and marketing programs, customer support expenses, operations expenses, product development expenses, certain technology and facilities expenses, billing operations and provisions for doubtful accounts. Segment income from operations excludes other income and expense items and certain expenses over which segment managers do not have discretionary control. Costs excluded from segment income from operations include various corporate expenses (consisting of certain costs such as corporate management, human resources, finance and legal), amortization of intangible assets, impairment of goodwill and intangible assets, facility exit and restructuring costs and stock-based compensation expense, as they are not considered in the measurement of segment performance.

 

30



Table of Contents

 

The following table sets forth segment data for the three months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended September 30,

 

 

 

 

 

 

 

2008

 

2009

 

$ Change

 

% Change

 

 

 

(dollars in thousands)

 

Consumer Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

187,799

 

$

138,176

 

$

(49,623

)

-26%

 

Cost of revenues

 

62,550

 

45,211

 

(17,339

)

-28%

 

Gross margin

 

125,249

 

92,965

 

(32,284

)

-26%

 

Direct segment operating expenses

 

49,803

 

31,039

 

(18,764

)

-38%

 

Segment operating income

 

$

75,446

 

$

61,926

 

$

(13,520

)

-18%

 

 

 

 

 

 

 

 

 

 

 

Business Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

43,032

 

$

36,345

 

$

(6,687

)

-16%

 

Cost of revenues

 

25,066

 

21,674

 

(3,392

)

-14%

 

Gross margin

 

17,966

 

14,671

 

(3,295

)

-18%

 

Direct segment operating expenses

 

12,481

 

10,257

 

(2,224

)

-18%

 

Segment operating income

 

$

5,485

 

$

4,414

 

$

(1,071

)

-20%

 

 

 

 

 

 

 

 

 

 

 

Consolidated

 

 

 

 

 

 

 

 

 

Revenues

 

$

230,831

 

$

174,521

 

$

(56,310

)

-24%

 

Cost of revenues

 

87,616

 

66,885

 

(20,731

)

-24%

 

Gross margin

 

143,215

 

107,636

 

(35,579

)

-25%

 

Direct segment operating expenses

 

62,284

 

41,296

 

(20,988

)

-34%

 

Segment operating income

 

80,931

 

66,340

 

(14,591

)

-18%

 

Stock-based compensation expense

 

4,597

 

3,136

 

(1,461

)

-32%

 

Amortization of intangible assets

 

3,153

 

2,039

 

(1,114

)

-35%

 

Facility exit and restructuring costs

 

1,078

 

(97

)

(1,175

)

-109%

 

Other operating expenses

 

12,674

 

9,449

 

(3,225

)

-25%

 

Income from operations

 

$

59,429

 

$

51,813

 

$

(7,616

)

-13%

 

 

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Table of Contents

 

The following table sets forth segment data for the nine months ended September 30, 2008 and 2009:

 

 

 

Nine Months Ended September 30,

 

 

 

 

 

 

 

2008

 

2009

 

$ Change

 

% Change

 

 

 

(dollars in thousands)

 

Consumer Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

605,340

 

$

445,344

 

$

(159,996

)

-26%

 

Cost of revenues

 

201,053

 

144,890

 

(56,163

)

-28%

 

Gross margin

 

404,287

 

300,454

 

(103,833

)

-26%

 

Direct segment operating expenses

 

164,496

 

101,617

 

(62,879

)

-38%

 

Segment operating income

 

$

239,791

 

$

198,837

 

$

(40,954

)

-17%

 

 

 

 

 

 

 

 

 

 

 

Business Services

 

 

 

 

 

 

 

 

 

Revenues

 

$

134,168

 

$

113,837

 

$

(20,331

)

-15%

 

Cost of revenues

 

76,602

 

66,830

 

(9,772

)

-13%

 

Gross margin

 

57,566

 

47,007

 

(10,559

)

-18%

 

Direct segment operating expenses

 

39,308

 

31,339

 

(7,969

)

-20%

 

Segment operating income

 

$

18,258

 

$

15,668

 

$

(2,590

)

-14%

 

 

 

 

 

 

 

 

 

 

 

Consolidated

 

 

 

 

 

 

 

 

 

Revenues

 

$

739,508

 

$

559,181

 

$

(180,327

)

-24%

 

Cost of revenues

 

277,655

 

211,720

 

(65,935

)

-24%

 

Gross margin

 

461,853

 

347,461

 

(114,392

)

-25%

 

Direct segment operating expenses

 

203,804

 

132,956

 

(70,848

)

-35%

 

Segment operating income

 

258,049

 

214,505

 

(43,544

)

-17%

 

Stock-based compensation expense

 

14,319

 

10,552

 

(3,767

)

-26%

 

Amortization of intangible assets

 

11,153

 

6,224

 

(4,929

)

-44%

 

Facility exit and restructuring costs

 

4,169

 

5,318

 

1,149

 

28%

 

Other operating expenses

 

39,714

 

28,655

 

(11,059

)

-28%

 

Income from operations

 

$

188,694

 

$

163,756

 

$

(24,938

)

-13%

 

 

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Table of Contents

 

Revenues

 

The following table presents revenues by groups of similar services and by segment for the three and nine months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended

 

 

 

 

 

Nine Months Ended

 

 

 

 

 

 

 

September 30,

 

 

 

 

 

September 30,

 

 

 

 

 

 

 

2008

 

2009

 

$ Change

 

% Change

 

2008

 

2009

 

$ Change

 

% Change

 

 

 

 

 

 

 

 

 

(dollars in thousands)

 

 

 

 

 

 

 

Consumer Services

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Access and service

 

$

164,306

 

$

120,935

 

$

(43,371

)

-26%

 

$

529,557

 

$

390,204

 

$

(139,353

)

-26%

 

Value-added services

 

23,493

 

17,241

 

(6,252

)

-27%

 

75,783

 

55,140

 

(20,643

)

-27%

 

Total revenues

 

187,799

 

138,176

 

(49,623

)

-26%

 

605,340

 

445,344

 

(159,996

)

-26%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Business Services

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Access and service

 

42,387

 

35,796

 

(6,591

)

-16%

 

132,026

 

112,143

 

(19,883

)

-15%

 

Value-added services

 

645

 

549

 

(96

)

-15%

 

2,142

 

1,694

 

(448

)

-21%

 

Total revenues

 

43,032

 

36,345

 

(6,687

)

-16%

 

134,168

 

113,837

 

(20,331

)

-15%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Consolidated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Access and service

 

206,693

 

156,731

 

(49,962

)

-24%

 

661,583

 

502,347

 

(159,236

)

-24%

 

Value-added services

 

24,138

 

17,790

 

(6,348

)

-26%

 

77,925

 

56,834

 

(21,091

)

-27%

 

Total revenues

 

$

230,831

 

$

174,521

 

$

(56,310

)

-24%

 

$

739,508

 

$

559,181

 

$

(180,327

)

-24%

 

 

Consolidated revenues

 

The primary component of our revenues is access and service revenues, which consist of narrowband access services (including traditional, fully-featured narrowband access and value-priced narrowband access); broadband access services (including high-speed access via DSL and cable; VoIP; and managed private IP-based wide area networks); and web hosting services. We also earn revenues from value-added services, which include ancillary services sold as add-on features to our access services, search and advertising. Total revenues decreased from $230.8 million during the three months ended September 30, 2008 to $174.5 million during the three months ended September 30, 2009. This was comprised of a $49.6 million decrease in consumer services revenue and a $6.7 million decrease in business services revenue. Total revenues decreased from $739.5 million during the nine months ended September 30, 2008 to $559.2 million during the nine months ended September 30, 2009. This was comprised of a $160.0 million decrease in consumer services revenue and a $20.3 million decrease in business services revenue.

 

The decreases in consumer services revenue were primarily attributable to decreases in average consumer subscribers, which were approximately 3.0 million and 3.3 million during the three and nine months ended September 30, 2008, respectively, and 2.2 million and 2.4 million during the three and nine months ended September 30, 2009, respectively. These decreases were driven primarily by narrowband and broadband subscribers, as we reduced our sales and marketing efforts and as the market for Internet access continues to mature. Contributing to the decrease in consumer services revenue during the three months ended September 30, 2009 was a decrease in consumer services ARPU. Partially offsetting the decrease in consumer services revenue during the nine months ended September 30, 2009 was an increase in consumer services ARPU, which was primarily driven by the shift in mix of our consumer access subscriber base from narrowband to broadband subscribers.

 

The decreases in business services revenue were primarily due to decreases in average business subscribers, which were approximately 176,000 and 183,000 during the three and nine months ended September 30, 2008, respectively, and 144,000 and 152,000 during the three and nine months ended September 30, 2009, respectively. Slightly offsetting the decreases in our average business subscribers were increases in business services ARPU, which increased due to the shift in mix of our business access subscriber base to New Edge subscribers.

 

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Table of Contents

 

Consumer services revenue

 

Access and service. Consumer access and service revenues consist of narrowband access, broadband access and VoIP services. These revenues are derived from monthly fees charged to customers for dial-up Internet access; monthly fees charged for high-speed access services including DSL and cable; monthly fees charged for VoIP services; usage fees; activation fees; termination fees; and fees for equipment.

 

Consumer access and service revenues decreased $43.4 million, or 26%, from the three months ended September 30, 2008 to the three months ended September 30, 2009, and decreased $139.4 million, or 26%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009.  The decreases in consumer access and service revenues were primarily due to decreases in narrowband access and broadband access revenues.  Narrowband access revenues decreased due to a decrease in average premium narrowband and value-priced narrowband subscribers resulting from reduced sales and marketing activities and the continued maturation of and competition in the market for narrowband Internet access. In accordance with our business strategy, we are focusing our efforts primarily on the retention of tenured customers and adding customers that have similar characteristics of our tenured customer base and are more likely to produce an acceptable rate of return. Average consumer narrowband subscribers decreased from 2.0 million and 2.3 million during the three and nine months ended September 30, 2008, respectively, to 1.4 million and 1.5 million during the three and nine months ended September 30, 2009, respectively. Our value-priced PeoplePC narrowband services comprised a larger proportion of this decrease, as average PeoplePC access subscribers decreased from approximately 46% and 48% of our average consumer narrowband customer base during the three and nine months ended September 30, 2008, respectively, to 37% and 40% of our average consumer narrowband customer base during the three and nine months ended September 30, 2009, respectively. Broadband access revenues decreased due to a decline in average broadband subscribers resulting from reduced sales and marketing efforts and competitive pressures. Average consumer broadband subscribers decreased from 1.0 million during the three and nine months ended September 30, 2008 to 0.8 million and 0.9 million during the three and nine months ended September 30, 2009, respectively. However, we experienced an improvement in consumer subscriber churn rates during the three and nine months ended September 30, 2009 compared to the prior year period, as churn decreased from 4.3% and 4.6% during the three and nine months ended September 30, 2008, respectively, to 3.7% and 3.8% during the three and nine months ended September 30, 2009, respectively.

 

Contributing to the decrease in consumer access and service revenue during the three months ended September 30, 2009 was a decrease in consumer access and service ARPU, which was driven by an increase in promotions and save offers for our narrowband services offset by the shift in mix of our consumer access subscriber base from narrowband to broadband subscribers. Partially offsetting the decrease in consumer services revenue during the nine months ended September 30, 2009 was an increase in consumer access and service ARPU, which was primarily driven by the shift in mix of our consumer access subscriber base from narrowband to broadband subscribers.

 

We expect our consumer access and service subscriber base to continue to decrease due to decreased sales and marketing activities, competitive pressures and the continued maturation of the market for narrowband Internet access. However, as our customers become more tenured, we expect our churn rates to decline.

 

Value-added services revenues. Value-added services revenues consist of revenues from ancillary services sold as add-on features to our Internet access services, such as security products, premium email only, email by phone, Internet call waiting, email storage and home networking; search revenues; and advertising revenues.  We derive these revenues from monthly fees charged for ancillary services; paid placements for searches; delivering traffic to our partners in the form of subscribers, page views or e-commerce transactions; advertising our partners’ products and services in our various online properties and electronic publications; and referring our customers to our partners’ products and services.

 

Value-added services revenues decreased $6.3 million, or 27%, from the three months ended September 30, 2008 to the three months ended September 30, 2009, and decreased $20.6 million, or 27%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009.  The decreases were due primarily to decreases in subscribers for ancillary services, primarily security services, and in search advertising revenues. The decreases were the result of decreases in total average consumer subscribers from 3.0 million and 3.3 million during the three and nine months ended September 30, 2008, respectively, to 2.2 million and 2.4 million during the three and nine months ended September 30, 2009, respectively.  However, offsetting these decreases was an increase in subscription revenue per subscriber and search revenue per thousand searches. We expect our value-added services revenues to decrease during the remainder of 2009 as our subscriber base decreases.

 

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Table of Contents

 

Business services revenue

 

The primary component of business services revenues is access and service revenues, and includes New Edge access and service revenues. Business access and service revenues consist of fees charged for business Internet access services; fees charged for managed private IP-based wide area networks; installation fees; termination fees; fees for equipment; and regulatory surcharges billed to customers. Business access and service revenues also consist of web hosting revenues from leasing server space and providing web services to customers wishing to have a web or e-commerce presence on the Internet. We sell our services to end-user business customers and to wholesale customers. Our end users range from large enterprises with many locations, to small and medium-sized multi-site businesses to business customers with one site, often a home-based location. Our wholesale customers consist primarily of telecommunications carriers. Many of our end user customers are retail businesses.

 

Business access and service revenues decreased $6.6 million, or 16%, from the three months ended September 30, 2008 to the three months ended September 30, 2009 and decreased $19.9 million, or 15%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009.  The decreases were primarily due to decreases in average business access and service subscribers, comprised of decreases in average web hosting accounts, average business narrowband customers and average New Edge customers. Our wholesale business during the nine month period was also negatively impacted by consolidation in the telecommunications industry.

 

Cost of revenues

 

Cost of revenues consist of telecommunications fees, set-up fees, the costs of equipment sold to customers for use with our services, depreciation of our network equipment and surcharges due to regulatory agencies. Our principal provider for narrowband telecommunications services is Level 3 Communications, Inc. Our largest providers of broadband connectivity are Time Warner Cable, AT&T, Qwest Corporation, Verizon Communications, Inc., Covad Communications Group, Inc. (“Covad”) and Comcast Corporation. We also do lesser amounts of business with a wide variety of local, regional and other national providers. Cost of revenues also includes sales incentives. We offer sales incentives, such as free modems and Internet access on a trial basis, for certain products and promotions.

 

Total cost of revenues decreased $20.7 million, or 24%, from the three months ended September 30, 2008 to the three months ended September 30, 2009, but remained constant as a percent of revenue from 38% to 38%.  This decrease was comprised of a $17.3 million decrease in consumer services cost of revenues and $3.4 million decrease in business services cost of revenue. Consumer services cost of revenues decreased due to the decline in average consumer services subscribers. Business services cost of revenues decreased due to a decrease in average business services subscribers.

 

Total cost of revenues decreased $65.9 million, or 24%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009, but remained constant as a percent of revenue from 38% to 38%.  This decrease was comprised of a $56.2 million decrease in consumer services cost of revenues and $9.8 million decrease in business services cost of revenue. Consumer services cost of revenues decreased primarily due to the decline in average consumer services subscribers. Business services cost of revenues decreased due to a decrease in average business services subscribers.

 

We expect cost of revenues to decrease as our subscriber base decreases. We also expect the mix of our consumer access subscriber base to continue to shift from narrowband access to broadband access customers, which will negatively affect our average monthly cost per subscriber. However, we will continue to seek cost efficiencies by managing our network and associated expenses, including network consolidation and entering into more favorable agreements with network providers.

 

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Table of Contents

 

Sales and marketing

 

Sales and marketing expenses include advertising and promotion expenses, fees paid to distribution partners to acquire new paying subscribers and compensation and related costs (including stock-based compensation).

 

Sales and marketing expenses decreased $8.4 million, or 38%, from the three months ended September 30, 2008 to the three months ended September 30, 2009. Sales and marketing expenses decreased $33.5 million, or 42%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009. The decreases consisted primarily of decreases in advertising and promotions expense, personnel-related costs, outsourced labor and occupancy and related costs resulting from our refocused business strategy and continued cost reduction initiatives. Sales and marketing expenses decreased as a percent of revenues from 10% and 11% of revenues during the three and nine months ended September 30, 2008, respectively, to 8% of revenues during the three and nine months ended September 30, 2009 as we reduced sales and marketing efforts and focused our efforts primarily on the retention of tenured customers and on marketing channels that are more likely to produce an acceptable rate of return.

 

Operations and customer support

 

Operations and customer support expenses consist of costs associated with technical support and customer service, maintenance of customer information systems, software development, network operations and compensation and related costs (including stock-based compensation).

 

Operations and customer support expenses decreased $10.5 million, or 31%, from the three months ended September 30, 2008 to the three months ended September 30, 2009. Operations and customer support expenses decreased $31.7 million, or 30%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009. The decreases in operations and customer support expenses consisted of decreases in personnel-related costs, outsourced labor and occupancy and related costs. These decreases were primarily attributable to our cost reduction initiatives, including benefits realized as a result of the 2007 Plan and other workforce reductions, and a decrease in call volumes for customer service and technical support as our overall subscriber base has decreased and as our tenured customers require less customer service and technical support. These factors also resulted in operations and customer support expenses as a percent of revenues to decrease during the three and nine months ended September 30, 2009 compared to the prior year periods.

 

General and administrative

 

General and administrative expenses consist of compensation and related costs (including stock-based compensation) associated with our finance, legal, facilities and human resources organizations; fees for professional services; payment processing; credit card fees; collections and bad debt.

 

General and administrative expenses decreased $6.8 million, or 29%, from the three months ended September 30, 2008 to the three months ended September 30, 2009, and decreased as a percent of revenues from 10% of revenues to 9% of revenues. General and administrative expenses decreased $20.5 million, or 28%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009, and decreased as a percent of revenues from 10% of revenues to 9% of revenues.  The decreases in general and administrative expenses consisted primarily of decreases in bad debt and payment processing fees, personnel-related costs and professional and legal fees. Bad debt and payment processing fees decreased due to the decrease in our overall subscriber base and due to our subscriber base consisting of longer tenured customers, who have a lower frequency of non-payment. The decrease in personnel-related costs and professional and legal fees was attributable to our efforts to reduce our back-office cost structure, including benefits realized as a result of the 2007 Plan.

 

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Table of Contents

 

Amortization of intangible assets

 

Amortization of intangible assets represents the amortization of definite-lived intangible assets acquired in purchases of businesses and purchases of customer bases from other companies. Definite-lived intangible assets, which primarily consist of subscriber bases and customer relationships, acquired software and technology, trade names and other assets, are amortized on a straight-line basis over their estimated useful lives, which range from three to six years. Amortization of intangible assets decreased $1.1 million, or 35%, from the three months ended September 30, 2008 to the three months ended September 30, 2009 and decreased $4.9 million, or 44%, from the nine months ended September 30, 2008 to the nine months ended September 30, 2009.  The decreases in amortization of intangible assets compared to the prior year periods were primarily due to certain identifiable definite-lived intangible assets becoming fully amortized over the past year. In addition, we impaired certain identifiable definite-lived intangible assets during the fourth quarter of 2008, which also contributed to the decrease in amortization expense.

 

Facility exit and restructuring costs

 

Facility exit and restructuring costs consisted of the following during the three and nine months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

 

 

 

 

 

 

 

 

 

 

2007 Restructuring Plan

 

$

1,159

 

$

31

 

$

4,421

 

$

5,446

 

Legacy Restructuring Plans

 

(81

)

(128

)

(252

)

(128

)

 

 

$

1,078

 

$

(97

)

$

4,169

 

$

5,318

 

 

2007 Restructuring Plan. In August 2007, we adopted a restructuring plan to reduce costs and improve the efficiency of our operations. The 2007 Plan was the result of a comprehensive review of operations within and across our functions and businesses. Under the 2007 Plan, we reduced our workforce by approximately 900 employees, consolidated our office facilities in Atlanta, Georgia and Pasadena, California and closed office facilities in Orlando, Florida; Knoxville, Tennessee; Harrisburg, Pennsylvania; and San Francisco, California. The Plan was primarily implemented during the latter half of 2007 and during 2008. As a result of the 2007 Plan, we recorded facility exit and restructuring costs of $1.2 million and $4.4 million during the three and nine months ended September 30, 2008, respectively, and $5.4 million during the nine months ended September 30, 2009, which consisted primarily of facilities-related costs. Since management continues to evaluate EarthLink’s businesses, there have been and may continue to be supplemental provisions for new plan initiatives as well as changes in estimates to amounts previously recorded.

 

Legacy Restructuring Plans. During the years ended December 31, 2003, 2004 and 2005, we executed a series of plans to restructure and streamline our contact center operations and outsource certain internal functions (collectively referred to as “Legacy Plans”). The Legacy Plans included facility exit costs, personnel-related costs and asset disposals. We periodically evaluate and adjust our estimates for facility exit and restructuring costs based on currently-available information and record such adjustments as facility exit and restructuring costs. During the three and nine months ended September 30, 2008, we recorded a $0.1 million and $0.3 million reduction, respectively, to facility exit and restructuring costs as a result of changes in estimates for the Legacy Plans. During the three and nine months ended September 30, 2009, we recorded a $0.1 million reduction to facility exit and restructuring costs as a result of changes in estimates for the Legacy Plans.

 

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Table of Contents

 

Gain on investments, net

 

During the nine months ended September 30, 2008, we recognized a net gain on investments of $5.7 million. This consisted of a gain of $4.4 million related to the sale of HELIO to Virgin Mobile USA, Inc. and a gain of $2.0 million from the sale of our 6.1 million shares of Covad common stock to Platinum Equity, LLC, offset by an impairment loss of $0.7 million due to other-than-temporary declines of the value of certain long-term investments. During the nine months ended September 30, 2009, we recognized a net gain on investments of $0.1 million. This consisted of $0.2 million in cash distributions from eCompanies Venture Group, L.P. (“EVG”), a limited partnership that invested in domestic emerging Internet-related companies, and a net gain of $0.1 million related to our auction rate securities (as described below). These transactions were recorded as gain on investments, net, in the Condensed Consolidated Statements of Operations.

 

As of September 30, 2009, we held auction rate securities with a carrying value and fair value of $43.0 million. These securities are variable-rate debt instruments whose underlying agreements have contractual maturities of up to 40 years, but have interest rate reset periods at pre-determined intervals, usually every 28 days. These securities are predominantly secured by student loans guaranteed by state related higher education agencies and reinsured by the U.S. Department of Education. Beginning in February 2008, auctions for these securities failed to attract sufficient buyers, resulting in us continuing to hold such securities. In October 2008, we entered into an agreement with the broker that sold us our auction rate securities that gives us the right to sell our existing auction rate securities back to the broker at par plus accrued interest, beginning on June 30, 2010 until July 2, 2012 (herein referred to as “put right”). During the nine months ended September 30, 2009, the Company redeemed $9.5 million of auction rate securities at par, plus accrued interest. We record the auction rate securities at fair value, with changes in fair value included in earnings. We also record the put right at fair value, with changes in fair value included in earnings. The changes in fair value of the put right offset the fair value changes of the auction rate securities. During the nine months ended September 30, 2009, we recorded a $4.7 million gain on investments related to the auction rate securities and recorded a $4.6 million loss on investments related to the put right. The net gain of $0.1 million during the nine months ended September 30, 2009 is included in gain on investments, net, in the Condensed Consolidated Statement of Operations.

 

Interest expense and other, net

 

Interest expense and other, net, is primarily comprised of interest expense incurred on our Convertible Senior Notes due November 15, 2026 (“Notes”); interest earned on our cash, cash equivalents and marketable securities; and other miscellaneous income and expense items. Interest expense and other, net, increased $1.8 million from the three months ended September 30, 2008 to the three months ended September 30, 2009. Interest expense and other, net, increased $6.7 million from the nine months ended September 30, 2008 to the nine months ended September 30, 2009. The increases were primarily due to decreases in interest earned on our cash, cash equivalents and marketable securities, despite an increase in our average cash and marketable securities balance, due to lower investment yields from deteriorating financial and credit markets. Also contributing to the increase for the nine month period was the liquidation of our Covad debt investment, when Covad was acquired by Platinum Equity, LLC in April 2008.

 

Income tax provision

 

We recognized an income tax provision of $23.9 million during the nine months ended September 30, 2008, which consisted of $7.1 million state income and federal and state alternative minimum tax (“AMT”) amounts payable due to the net operating loss carryforward limitations associated with the AMT calculation and other current provision items, and $16.8 million for non-cash deferred tax provisions associated with the utilization of net operating loss carryforwards. We recognized an income tax provision of $55.7 million during the nine months ended September 30, 2009, which consisted of $6.7 million state income and federal and state AMT amounts payable due to the net operating loss carryforward limitations associated with the AMT calculation and $49.0 million for non-cash deferred tax provisions associated with the utilization of net operating loss carryforwards.

 

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Table of Contents

 

We continue to maintain a partial valuation allowance against our unrealized deferred tax assets, which include net operating loss carryforwards.  We may recognize additional deferred tax assets in future periods when they are determined to be more likely than not realizable. To the extent we report income in future periods, we intend to use our net operating loss carryforwards to the extent available to offset taxable income and reduce cash outflows for income taxes.  Our ability to use our federal and state net operating loss carryforwards and federal and state tax credit carryforwards may be subject to restrictions attributable to equity transactions in the future resulting from changes in ownership as defined under the Internal Revenue Code.

 

Loss from discontinued operations, net of tax

 

Loss from discontinued operations, net of tax, for the three and nine months ended September 30, 2008 reflects our municipal wireless broadband operations. In November 2007, management concluded that our municipal wireless broadband operations were no longer consistent with our strategic direction and our Board of Directors authorized management to pursue the divestiture of our municipal wireless broadband assets. The municipal wireless results of operations were previously included in our Consumer Services segment. As of December 31, 2008, the divestiture of our municipal wireless broadband assets was complete. As a result, we did not record a loss from discontinued operations during the three and nine months ended September 30, 2009.

 

The following table presents summarized results of operations related to our discontinued operations for the three and nine months ended September 30, 2008:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30, 2008

 

September 30, 2008

 

 

 

(in thousands)

 

 

 

 

 

 

 

Revenues

 

$

18

 

$

1,306

 

Operating costs and expenses

 

(842

)

(4,534

)

Impairment and other costs

 

(128

)

(6,081

)

Income tax benefit

 

271

 

871

 

Loss from discontinued operations, net of tax

 

$

(681

)

$

(8,438

)

 

Goodwill and Intangible Assets

 

We perform an impairment test of our goodwill and indefinite-lived intangible assets annually during the fourth quarter of our fiscal year or when events and circumstances indicate the indefinite-lived intangible assets might be permanently impaired. We have identified three reporting units for evaluating goodwill, which are Consumer Services, New Edge and Web Hosting. During the fourth quarter of 2008, our annual impairment test concluded that goodwill and certain intangible assets recorded as a result of our April 2006 acquisition of New Edge were impaired and we recorded non-cash impairment charges related to the New Edge reporting unit of $64.0 million for goodwill, $3.1 million for the indefinite-lived trade name and $11.6 million for customer relationships. The primary factor contributing to the impairment charge was the significant economic downturn, which resulted in management updating its long-range financial outlook. As of the date of the last impairment test, the carrying value of the New Edge reporting unit exceeded its estimated fair value by approximately 55%. As of September 30, 2009, the amount of goodwill allocated to the New Edge reporting unit was $23.9 million. The fair values of our Consumer Services and Web Hosting reporting units have historically exceeded the carrying values.

 

Impairment testing of goodwill is required at the reporting unit level and involves a two-step process. The first step of the impairment test involves comparing the estimated fair value of our reporting units with the reporting unit’s carrying amount, including goodwill. We estimate the fair value of our reporting units using discounted expected future cash flows, supported by the results of various market approach valuation models. If the fair value of a reporting unit exceeds its net book value, goodwill is not impaired, and no further testing is necessary. If the net book value of a reporting unit exceeds its fair value, we perform a second test to measure the amount of impairment loss, if any.

 

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Table of Contents

 

The key estimates and assumptions that drive the fair value of the reporting unit include the discount rate, terminal growth rates and expected future cash flows.  Changes in these estimates and assumptions could materially affect the determination of fair value for the reporting unit which could trigger impairment or impact the amount of the impairment.  The fair value of the New Edge reporting unit could be negatively impacted if improvements are not realized in the recent actual operating trends that would include attracting and retaining more customers or if we experience continued softness in the small to medium sized business market due to the economy. As a result, we could recognize an additional non-cash impairment charge related to our New Edge reporting unit.

 

Stock-Based Compensation

 

We measure compensation cost for all stock awards at fair value on the date of grant and recognize compensation over the requisite service period for awards expected to vest. The fair value of our stock options is estimated using the Black-Scholes valuation model, and the fair value of restricted stock units is determined based on the number of shares granted and the quoted price of our common stock on the date of grant. Such value is recognized as expense over the requisite service period, net of estimated forfeitures, using the straight-line attribution method. For performance-based awards, the Company recognizes expense over the requisite service period, net of estimated forfeitures, using the accelerated attribution method when it is probable that the performance measure will be achieved. The estimate of awards that will ultimately vest requires significant judgment, and to the extent actual results or updated estimates differ from management’s current estimates, such amounts will be recorded as a cumulative adjustment in the period estimates are revised. We consider many factors when estimating expected forfeitures, including types of awards, employee class and historical employee attrition rates. Actual results, and future changes in estimates, may differ substantially from our current estimates.

 

Stock-based compensation expense was $4.6 million and $3.1 million during the three months ended September 30, 2008 and 2009, respectively, and $14.3 million and $10.6 million during the nine months ended September 30, 2008 and 2009, respectively. Stock-based compensation expense is classified within the same operating expense line items as cash compensation paid to employees. Stock-based compensation expense was allocated as follows for the three and nine months ended September 30, 2008 and 2009:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2008

 

2009

 

2008

 

2009

 

 

 

(in thousands)

 

Sales and marketing

 

$

1,259

 

$

849

 

$

4,083

 

$

2,885

 

Operations and customer support

 

2,197

 

1,626

 

6,985

 

5,179

 

General and administrative

 

1,141

 

661

 

3,251

 

2,488

 

 

 

$

4,597

 

$

3,136

 

$

14,319

 

$

10,552

 

 

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Table of Contents

 

Facility Exit and Restructuring Costs

 

2007 Plan.  We expect to incur future cash outflows for real estate obligations through 2014 related to the 2007 Plan. The following table summarizes activity for the liability balances associated with the 2007 Plan for the years ended December 31, 2007 and 2008 and for the nine months ended September 30, 2009, including changes during the year attributable to costs incurred and charged to expense and costs paid or otherwise settled:

 

 

 

Severance

 

 

 

Asset

 

Other

 

 

 

 

 

and Benefits

 

Facilities

 

Impairments

 

Costs

 

Total

 

 

 

(in thousands)

 

Balance as of December 31, 2006

 

$

 

$

 

$

 

$

 

$

 

Accruals

 

30,303

 

12,216

 

20,621

 

1,131

 

64,271

 

Payments

 

(18,262

)

(480

)

 

(760

)

(19,502

)

Non-cash charges

 

 

4,388

 

(20,621

)

(371

)

(16,604

)

Balance as of December 31, 2007

 

12,041

 

16,124

 

 

 

28,165

 

Accruals

 

461

 

4,808

 

4,125

 

 

9,394

 

Payments

 

(12,502

)

(6,174

)

 

 

(18,676

)

Non-cash charges

 

 

1,936

 

(4,125

)

 

(2,189

)

Balance as of December 31, 2008

 

 

16,694

 

 

 

16,694

 

Accruals

 

 

5,400

 

46

 

 

5,446

 

Payments

 

 

(3,732

)

 

 

(3,732

)

Non-cash charges

 

 

392

 

(46

)

 

346

 

Balance as of September 30, 2009

 

$

 

$

18,754

 

$

 

$

 

$

18,754

 

 

Legacy Plans. As of September 30, 2009, we had $1.0 million remaining for real estate commitments associated with the Legacy Plans. All other costs have been paid or otherwise settled. We expect to incur future cash outflows for real estate obligations through 2010 related to the Legacy Plans.

 

Liquidity and Capital Resources

 

The following table sets forth summarized cash flow data for the nine months ended September 30, 2008 and 2009:

 

 

 

Nine Months Ended September 30,

 

 

 

2008

 

2009

 

 

 

(in thousands)

 

 

 

 

 

 

 

Net income

 

$

154,206

 

$

93,849

 

Non-cash items

 

68,424

 

88,317

 

Changes in working capital

 

(48,053

)

(23,727

)

Net cash provided by operating activities

 

$

174,577

 

$

158,439

 

 

 

 

 

 

 

Net cash provided by (used in) investing activities

 

$

109,280

 

$

(50,477

)

 

 

 

 

 

 

Net cash used in financing activities

 

$

(25,145

)

$

(32,252

)

 

Operating activities

 

Net cash provided by operating activities decreased during the nine months ended September 30, 2009 compared to the prior year period primarily due to a decrease in revenues as our overall subscriber base has decreased over the past year. However, this decrease was offset by an increase in cash resulting from reduced sales and marketing spending, reduced back-office support costs and reduced customer support and bad debt expense as our overall subscriber base has decreased and become longer tenured.

 

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Non-cash items include items that are not expected to generate or require the use of cash, such as depreciation and amortization relating to our network, facilities and intangible assets, deferred income taxes, stock-based compensation, non-cash disposals and impairments of fixed assets, gain (loss) on investments in other companies, net, and accretion of debt discount and amortization of debt issuance costs. Non-cash items increased during the nine months ended September 30, 2009 compared to the prior year period due to an increase in deferred income taxes, which was partially offset by decreases in depreciation expense and loss on disposals and impairments of fixed assets.

 

Changes in working capital requirements include changes in accounts receivable, prepaid and other assets, accounts payable, accrued and other liabilities and deferred revenue. Cash used for working capital requirements decreased during the nine months ended September 30, 2009 compared to the prior year period primarily due to reduced back office support and sales and marketing spending. Also contributing to the decrease were decreases in payments resulting from the 2007 Plan, from other workforce reductions and from the discontinuation of our municipal wireless broadband operations.

 

Investing activities

 

Our investing activities provided cash of $109.3 million during the nine months ended September 30, 2008. This consisted of $56.9 million of sales and maturities of investments in marketable securities, net of sales, and $57.1 million received for our Covad investment, offset by $3.9 million of capital expenditures. Our investing activities used cash of $50.5 million during the nine months ended September 30, 2009. This consisted primarily of $40.0 million of purchases of investments in marketable securities, net of sales and maturities, and $10.6 million of capital expenditures, primarily associated with network and technology center related projects.

 

Financing activities

 

Our financing activities used cash of $25.1 million during the nine months ended September 30, 2008. This consisted of $31.9 million used to repurchase 3.8 million shares of our common stock and $2.7 million for principal payments under capital lease obligations, offset by $8.0 million of proceeds from the exercise of stock options. Our financing activities used cash of $32.2 million during the nine months ended September 30, 2009. This consisted primarily of $22.3 million used to repurchase 3.6 million shares of our common stock and $15.0 million for payment of dividends declared in July 2009, offset by $5.1 million of proceeds from the exercise of stock options.

 

Off-Balance Sheet Arrangements

 

As of September 30, 2009, we did not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors.

 

Share Repurchase Program

 

The Board of Directors has authorized a total of $750.0 million to repurchase our common stock under our share repurchase program. As of September 30, 2009, we had utilized approximately $603.2 million and had $146.8 million available under the current authorization. We may repurchase our common stock from time to time in compliance with the Securities and Exchange Commission’s regulations and other legal requirements, and subject to market conditions and other factors. The share repurchase program does not require us to acquire any specific number of shares and may be terminated by the Board of Directors at any time.

 

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Income Taxes

 

We continue to maintain a partial valuation allowance of $240.0 million against our net deferred tax assets, consisting primarily of net operating loss carryforwards, and we may recognize deferred tax assets in future periods if they are determined to be realizable. To the extent we owe income taxes in future periods, we intend to use our net operating loss carryforwards to the extent available to reduce cash outflows for income taxes. However, our ability to use our net operating loss carryforwards to offset future taxable income and future taxes, may be subject to restrictions attributable to equity transactions that result in changes in ownership as defined by Internal Revenue Code Section 382.

 

Future Uses of Cash and Funding Sources

 

Uses of cash. We expect to continue to use cash to retain existing and acquire new subscribers for our services, including purchases of subscriber bases from other ISPs. We will also use cash to pay real estate obligations associated with facilities exited in our restructuring plans and for workforce reduction initiatives. We expect to incur capital expenditures to maintain and upgrade our network and technology infrastructure. The actual amount of capital expenditures may fluctuate due to a number of factors which are difficult to predict and could change significantly over time. Additionally, technological advances may require us to make capital expenditures to develop or acquire new equipment or technology in order to replace aging or technologically obsolete equipment. We also expect to use cash to pay dividends on our common stock and restricted stock units. In July 2009 and October 2009, our Board of Directors approved quarterly cash dividends on our common stock. The Board of Directors also approved the payment of cash dividend amounts on each outstanding restricted stock unit. We currently intend to pay regular quarterly dividends on our common stock. Any decision to declare future dividends will be made at the discretion of the board of directors and will depend on, among other things, our results of operations, financial condition, cash requirements, investment opportunities and other factors the Board of Directors may deem relevant.  Finally, we may also use cash to invest in or acquire other companies, to repurchase common stock, to repurchase Notes or in connection with holders’ conversion of Notes. Although we continue to consider and evaluate potential investments or acquisitions that could create shareholder value, there can be no assurance that we will be able to consummate any such transaction. We also continue to evaluate potential capital return strategies.

 

Our cash requirements depend on numerous factors, including the pricing of our access services, our ability to maintain our customer base, the costs required to maintain our network infrastructure, the size and types of acquisitions in which we may engage, and the level of resources used for our sales and marketing activities, among others.

 

Sources of cash. Our principal sources of liquidity are our cash, cash equivalents and investments in marketable securities, as well as the cash flow we generate from our operations. During the nine months ended September 30, 2009, we generated $158.4 million in cash from operations. As of September 30, 2009, we had $562.3 million in cash and cash equivalents. In addition, we held short- and long-term marketable securities valued at $90.8 million and $1.8 million, respectively. Short-term marketable securities consist of investments that have maturity dates of up to one year from the balance sheet date, and long-term marketable securities consist of investments that have maturity dates of more than one year from the balance sheet date. Short-term marketable securities also include $43.0 million of auction rate securities. These securities are variable-rate debt instruments whose underlying agreements have contractual maturities of up to 40 years. The securities are issued by various state related higher education agencies and predominantly secured by student loans guaranteed by the agencies and reinsured by the United States Department of Education. Liquidity for these auction rate securities is typically provided by an auction process that resets the applicable interest rate at pre-determined intervals, usually every 28 days. Beginning in February 2008, all of our auction rate securities failed to attract sufficient buyers, resulting in our continuing to hold such securities. In October 2008, we entered into an agreement with the broker that sold us our auction rate securities that gives us the right to sell our existing auction rate securities back to the broker at par plus accrued interest, beginning on June 30, 2010 until July 2, 2012. The agreement also grants the broker the right to buy our auction rate securities at par plus accrued interest, until July 2, 2012. Based on our remaining cash and marketable securities and operating cash flows, we do not anticipate the current lack of liquidity on these investments will affect our ability to operate our business as usual.

 

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We expect to generate positive cash flows from operations during the year ended December 31, 2009. Our available cash and marketable securities, together with our results of operations, are expected to be sufficient to meet our operating expenses, capital requirements, dividend payments and investment and other obligations for the next 12 months. However, as a result of other investment activities and possible acquisition opportunities, we may seek additional financing in the future. We have no commitments for any additional financing and have no lines of credit or similar sources of financing. We cannot be sure that we can obtain additional financing on favorable terms, if at all, through the issuance of equity securities or the incurrence of additional debt. Additional equity financing may dilute our stockholders, and debt financing, if available, may restrict our ability to repurchase common stock or debt, declare and pay dividends and raise future capital. If we are unable to obtain additional needed financing, it may prohibit us from making acquisitions, capital expenditures and/or investments, which could materially and adversely affect our prospects for long-term growth.

 

Recently Issued Accounting Pronouncement

 

In September 2009, the Financial Accounting Standards Board (“FASB”) issued new guidance on revenue recognition. The new guidance addresses the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit and to modify the manner in which the transaction consideration is allocated across the separately identifiable deliverables and how revenue is recognized. The new guidance also significantly expands the disclosure requirements for multiple-element arrangements. The new guidance is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010. We do not expect the adoption of the new guidance to have a material impact on our financial statements.

 

Adoption of Recent Accounting Pronouncements

 

Codification. In the third quarter of 2009, we adopted the FASB Accounting Standards Codification (“ASC”). The ASC became the single official source of authoritative U.S. generally accepted accounting principles (“GAAP”) recognized by the FASB, other than guidance issued by the Securities and Exchange Commission. The adoption of the ASC did not have a material impact on our financial statements. However, the adoption of the ASC changed our references to GAAP in our consolidated financial statements.

 

Convertible Debt. On January 1, 2009, we adopted new accounting guidance related to accounting for convertible debt instruments that may be settled in cash upon conversion, which was codified in ASC Subtopic 470-20, “Debt With Conversion and Other Options.” The new accounting guidance requires that the liability and equity components of convertible debt instruments that may be settled in cash upon conversion (including partial cash settlement) be separately accounted for in a manner that reflects an issuer’s non-convertible debt borrowing rate. The resulting debt discount is accreted over the period the convertible debt is expected to be outstanding as additional non-cash interest expense. Retrospective application to all periods presented is required except for instruments that were not outstanding during any of the periods that will be presented in the annual financial statements for the period of adoption but were outstanding during an earlier period. The adoption of this new guidance on January 1, 2009 affected the accounting for our Notes, which were issued in November 2006. Upon adoption, we recorded an adjustment to increase additional paid-in capital as of the November 2006 issuance date by approximately $62.1 million. We are accreting the resulting debt discount to interest expense over the estimated five-year life of the Notes, which represents the first redemption date of November 2011. We recorded a pre-tax adjustment of approximately $22.3 million to retained earnings that represents the debt discount accretion during the years ended December 31, 2006, 2007 and 2008 and will recognize additional non-cash interest expense of $12.2 million, $13.4 million and $12.4 million during the years ending December 31, 2009, 2010 and 2011, respectively, for accretion of the debt discount. As a result of the adoption of this new guidance, we reduced income from continuing operations and net income for the three months ended September 30, 2009 by $3.1 million and reduced basic and diluted earnings per share by $0.03 per share, and reduced income from continuing operations and net income for the nine months ended September 30, 2009 by $9.0 million and reduced basic and diluted earnings per share by $0.08 per share. We also recorded a deferred tax liability for temporary tax differences. However, this was offset by a corresponding decrease in the valuation allowance for deferred tax assets.

 

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The following tables present the effect of the new guidance on our affected financial statement line items for the three and nine months ended September 30, 2008 and as of December 31, 2008:

 

 

 

Three Months Ended September 30, 2008

 

Nine Months Ended September 30, 2008

 

 

 

As Originally

 

As

 

Effect of

 

As Originally

 

As

 

Effect of

 

 

 

Reported

 

Adjusted

 

Change

 

Reported

 

Adjusted

 

Change

 

 

 

(in thousands, except per share data)

 

Statement of Operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income (expense) and other, net

 

$

(490

)

$

(3,281

)

$

(2,791

)

$

366

 

$

(7,804

)

$

(8,170

)

Income from continuing operations

 

55,367

 

52,576

 

(2,791

)

170,814

 

162,644

 

(8,170

)

Net income

 

54,686

 

51,895

 

(2,791

)

162,376

 

154,206

 

(8,170

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic net income per share

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.50

 

$

0.48

 

$

(0.03

)

$

1.55

 

$

1.48

 

$

(0.07

)

Basic net income per share

 

0.50

 

0.47

 

(0.03

)

1.48

 

1.40

 

(0.07

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted net income per share

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

0.49

 

$

0.47

 

$

(0.02

)

$

1.53

 

$

1.46

 

$

(0.07

)

Diluted net income per share

 

0.49

 

0.46

 

(0.02

)

1.46

 

1.38

 

(0.07

)

 

 

 

As of December 31, 2008

 

 

 

As Originally

 

As

 

Effect of

 

 

 

Reported

 

Adjusted

 

Change

 

 

 

(in thousands)

 

Balance Sheet:

 

 

 

 

 

 

 

Other long-term assets

 

$

5,725

 

$

4,698

 

$

(1,027

)

Long-term debt

 

258,750

 

219,733

 

(39,017

)

Additional paid-in capital

 

2,075,571

 

2,135,887

 

60,316

 

Accumulated deficit

 

(994,507

)

(1,016,833

)

(22,326

)

 

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Safe Harbor Statement

 

The Management’s Discussion and Analysis and other portions of this Quarterly Report on Form   10-Q include “forward-looking” statements (rather than historical facts) that are subject to risks and uncertainties that could cause actual results to differ materially from those described. Although we believe that the expectations expressed in these forward-looking statements are reasonable, we cannot promise that our expectations will turn out to be correct. Our actual results could be materially different from and worse than our expectations. With respect to such forward-looking statements, we seek the protections afforded by the Private Securities Litigation Reform Act of 1995. These risks include, without limitation, (1) that the continued decline of our consumer access subscribers, combined with the change in mix of our consumer access subscriber base from narrowband to broadband, will adversely affect our results of operations and we will have less ability in the future to implement offsetting cost reductions; (2) that we face significant competition which could reduce our profitability; (3) that adverse economic conditions may harm our business; (4) that as a result of our continuing review of our business, we may have to undertake further restructuring plans that would require additional charges, including incurring facility exit and restructuring charges; (5) that if we do not continue to innovate and provide products and services that are useful to subscribers, we may not remain competitive, and our revenues and operating results could suffer; (6) that we may be unsuccessful in making and integrating acquisitions and investments into our business, which could result in operating difficulties, losses and other adverse consequences; (7) that our business is dependent on the availability of third-party telecommunications service providers; (8) that our commercial and alliance arrangements may not be renewed, which could adversely affect our results of operations; (9) that our business may suffer if third parties used for customer service and technical support and certain billing services are unable to provide these services or terminate their relationships with us; (10) that service interruptions or impediments could harm our business; (11) that government regulations could adversely affect our business or force us to change our business practices; (12) that privacy concerns relating to our business could damage our reputation and deter current and potential users from using our services;  (13) that we may not be able to protect our intellectual property; (14) that we may be accused of infringing upon the intellectual property rights of third parties, which is costly to defend and could limit our ability to use certain technologies in the future; (15) that we could face substantial liabilities if we are unable to successfully defend against legal actions; (16) that our business depends on effective business support systems, processes and personnel; (17) that we may be unable to hire and retain sufficient qualified personnel, and the loss of any of our key executive officers could adversely affect us; (18) that our VoIP business exposes us to certain risks that could cause us to lose customers, expose us to significant liability or otherwise harm our business; (19) that we may be required to recognize additional impairment charges on our goodwill and intangible assets, which would adversely affect our results of operations and financial position; (20) that we may have exposure to greater than anticipated tax liabilities and the use of our net operating losses and certain other tax attributes could be limited in the future; (21) that our stock price has been volatile historically and may continue to be volatile; (22) that we may reduce, or cease payment of, quarterly dividends; (23) that our indebtedness could adversely affect our financial health and limit our ability to react to changes in our industry; and (24) that provisions of our second restated certificate of incorporation, amended and restated bylaws and other elements of our capital structure could limit our share price and delay a change of management. These risks and uncertainties, as well as other risks and uncertainties that could cause our actual results to differ significantly from management’s expectations, are not intended to represent a complete list of all risks and uncertainties inherent in our business, and should be read in conjunction with the more detailed cautionary statements and risk factors included in our Annual Report on Form 10-K for the year ended December 31, 2008.

 

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Table of Contents

 

Item 3.   Quantitative and Qualitative Disclosures About Market Risk.

 

There have been no material changes in market risk from the information provided in Part II, Item 7A “Quantitative and Qualitative Disclosures About Market Risk” in our Annual Report on Form 10-K for the year ended December 31, 2008.

 

Item 4. Controls and Procedures.

 

Evaluation of Disclosure Controls and Procedures

 

Pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), we carried out an evaluation, with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures (as defined under Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this report.  Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective to ensure that information required to be disclosed in the reports that are filed or submitted under the Exchange Act, is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

 

Changes in Internal Control over Financial Reporting

 

There were no changes in our internal control over financial reporting during the three months ended September 30, 2009 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Part II

 

Item 1.    Legal Proceedings.

 

EarthLink is a party to various legal proceedings that are ordinary and incidental to its business. Management does not expect that any currently pending legal proceedings will have a material adverse effect on EarthLink’s results of operations or financial position.

 

Item 1A.  Risk Factors.

 

There were no material changes from the risk factors disclosed in EarthLink’s Annual Report on Form 10-K for the year ended December 31, 2008 and in EarthLink’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2009.

 

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Item 5.  Other Information.

 

None.

 

Item 6.   Exhibits.

 

(a)   Exhibits.  The following exhibits are filed as part of this report:

 

31.1    Certification of Chief Executive Officer pursuant to Securities Exchange Act Rules 13a-14 and 15d-14, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

31.2    Certification of Chief Financial Officer pursuant to Securities Exchange Act Rules 13a-14 and 15d-14, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

32.1    Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

32.2    Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

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SIGNATURES

 

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

 

 

 

EARTHLINK, INC.

 

 

 

 

 

 

Date:

October 30, 2009

 

/s/ ROLLA P. HUFF

 

Rolla P. Huff, Chairman of the Board and Chief Executive Officer (principal executive officer)

 

 

 

 

Date:

October 30, 2009

 

/s/ BRADLEY A. FERGUSON

 

 

Bradley A. Ferguson, Chief Financial Officer

 

 

(principal financial and accounting officer)

 

49