Appgate, Inc. - Quarter Report: 2023 September (Form 10-Q)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||
For the quarterly period ended September 30, 2023
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 000-52776
Appgate, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 20-3547231 | ||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||
2 Alhambra Plaza, Suite PH-1-B | |||||
Coral Gables, FL | 33134 | ||||
(Address of principal executive offices) | (Zip Code) | ||||
(866) 524-4782
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
| N/A | N/A | N/A | ||||||
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports); and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | o | Accelerated filer | o | ||||||||
Non-accelerated filer | x | Smaller reporting company | x | ||||||||
Emerging growth company | o | ||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No x
As of November 10, 2023, the registrant had 131,793,660 shares of its common stock outstanding.
Table of Contents
| Page | |||||
1
Cautionary Statement Regarding Forward-Looking Statements
This Quarterly Report on Form 10-Q (this “Quarterly Report”) contains forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 27A of the Securities Act of 1933, as amended (the “Securities Act”). Statements that do not relate strictly to historical or current facts are forward-looking and can be identified by the use of words such as “anticipate,” “estimate,” “could,” “would,” “should,” “will,” “may,” “forecast,” “approximate,” “expect,” “project,” “seek,” “predict,” “potential,” “intend,” “plan,” “believe,” the negatives of such terms and other words of similar meaning. Without limiting the generality of the foregoing, forward-looking statements contained in this Quarterly Report include statements regarding Appgate, Inc. (unless otherwise noted, including its consolidated subsidiaries, the “Company,” “Appgate,” “we,” or “our”) and its industry relating to matters such as anticipated future financial and operational performance, business prospects, the percentage of the Company’s future revenue derived from subscription term-based licenses compared to revenue from services, expected future increases in revenue and sales, including increasing the Company’s customer base and customers with annual recurring revenue above $100,000, sales to existing customers, revenue trends by geography, future gross profit, gross margin, operating losses and negative cash flows, planned investments in sales and marketing, expectations regarding our annual recurring revenue and other key business metrics, expected future decreases in sales and marketing and general and administrative expenses as a percentage of revenue over time, planned investments in research and development as a result of the Company’s expected growth, the expected cost of revenue over time, the expected future growth of the cybersecurity industry, the Company’s ability to innovate and add new functionality to existing products through research and development, the Company’s ability to continue as a going concern absent access to sources of liquidity, the Company’s ability to remain in compliance with covenants under the Convertible Senior Notes, the A&R Revolving Credit Agreement, and the AF Convertible Notes (each as defined herein), strategy and plans and similar matters.
The forward-looking statements included in this Quarterly Report involve risks and uncertainties that could cause actual results to differ materially from projected results. Accordingly, investors should not place undue reliance on forward-looking statements as a prediction of actual results. The Company has based these forward-looking statements on current expectations and assumptions about future events, taking into account all information currently known by the Company. While the Company considers these expectations and assumptions to be reasonable, they are inherently subject to significant business, economic, competitive, regulatory and other risks and uncertainties, many of which are difficult to predict and beyond our control. These risks and uncertainties include, but are not limited to:
•our future financial performance, including our expectations regarding our annual recurring revenue and other key business metrics, total revenue, cost of revenue, gross profit or gross margin, operating expenses, including changes in operating expenses and our ability to achieve and maintain future profitability;
•our ability to continue as a going concern absent access to sources of liquidity;
•the effects of increased competition in our markets and our ability to compete effectively;
•growth in the total addressable market for our products and services;
•market acceptance of Zero Trust solutions and technology generally;
•market acceptance of our products and services and our ability to increase adoption of our products;
•our ability to maintain the security and availability of our products;
•our ability to develop new products, or enhancements to our existing products, and bring them to market in a timely manner;
•our ability to maintain and expand our customer base, including by attracting new customers;
•our ability to maintain, protect and enhance our intellectual property rights;
•our ability to comply with laws and regulations that currently apply or become applicable to our business both in the United States and internationally;
•our ability to maintain an effective system of disclosure controls and internal control over financial reporting;
•SIS Holdings LP’s (“SIS Holdings”) significant influence over our business and affairs;
•the future trading prices and liquidity of our common stock;
•our indebtedness, which may increase risk to our business; and
•the other risks described under Part I, Item 1A, “Risk Factors” included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 (“2022 Annual Report”) filed with the Securities and Exchange Commission (the “SEC”) on March 31, 2023 as well as described from time to time in our other filings with the SEC.
All forward-looking statements made by us in this Quarterly Report are expressly qualified in their entirety by the foregoing cautionary statements. All such statements speak only as of the date made, and we undertake no obligation to
2
update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
3
PART I
Item 1. Financial Statements
Appgate, Inc.
Table of Contents
Unaudited Condensed Consolidated Financial Statements: | Page | |||||||
Unaudited Condensed Consolidated Balance Sheets as of September 30, 2023 and December 31, 2022 | ||||||||
Unaudited Condensed Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2023 and 2022 | ||||||||
Unaudited Condensed Consolidated Statements of Comprehensive Income (Loss) for the Three and Nine Months Ended September 30, 2023 and 2022 | ||||||||
Unaudited Condensed Consolidated Statements of Changes in Stockholders' Deficit for the Three and Nine Months Ended September 30, 2023 and 2022 | ||||||||
Unaudited Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2023 and 2022 | ||||||||
4
Appgate, Inc.
Unaudited Condensed Consolidated Balance Sheets
As of September 30, 2023 and December 31, 2022
(in thousands, except share information)
| September 30, 2023 | December 31, 2022 | ||||||||||
| ASSETS | |||||||||||
| Current assets: | |||||||||||
| Cash and cash equivalents | $ | 3,584 | $ | 11,531 | |||||||
| Restricted cash | 613 | 1,473 | |||||||||
Accounts receivable, net of allowance of $107 and $52, respectively | 8,048 | 4,231 | |||||||||
| Contract assets | 3,040 | 1,462 | |||||||||
| Deferred contract acquisition costs, current | 1,554 | 1,508 | |||||||||
| Prepaid and other current assets | 1,648 | 3,517 | |||||||||
| Total current assets | 18,487 | 23,722 | |||||||||
| Property and equipment, net | 1,164 | 1,617 | |||||||||
| Operating lease right-of-use assets | 1,297 | 1,679 | |||||||||
| Contract assets, noncurrent | 6,265 | 9,134 | |||||||||
| Deferred contract acquisition costs, noncurrent | 2,749 | 3,103 | |||||||||
| Goodwill | 71,604 | 71,604 | |||||||||
| Intangible assets, net | 20,493 | 26,449 | |||||||||
| Deferred income taxes | 1,288 | 1,334 | |||||||||
| Other assets | 172 | 182 | |||||||||
| Total assets | $ | 123,519 | $ | 138,824 | |||||||
| LIABILITIES AND STOCKHOLDERS' DEFICIT | |||||||||||
| Current liabilities: | |||||||||||
| Accounts payable | $ | 4,181 | $ | 4,334 | |||||||
| Accrued expenses | 7,377 | 10,240 | |||||||||
| Operating lease liabilities, current | 586 | 619 | |||||||||
| Deferred revenue, current | 5,971 | 5,578 | |||||||||
| Revolving credit facility | — | 46,500 | |||||||||
| Total current liabilities | 18,115 | 67,271 | |||||||||
| Deferred revenue, noncurrent | 1,081 | 909 | |||||||||
| Operating lease liabilities, noncurrent | 886 | 1,261 | |||||||||
| Debt purchase options | 3,582 | — | |||||||||
| Embedded derivative liability | 10,810 | 19,700 | |||||||||
| Accrued interest on long-term debt | 6,809 | — | |||||||||
| Convertible senior notes, net | 67,333 | 73,769 | |||||||||
| Convertible notes to related party, net | 3,038 | — | |||||||||
| Revolving credit facility to related party, net | 49,954 | — | |||||||||
| Total liabilities | 161,608 | 162,910 | |||||||||
| Commitments and contingencies (Note 9) | |||||||||||
| Stockholders' deficit: | |||||||||||
Preferred stock, $0.001 par value per share; 1,000,000 shares authorized; no shares issued and outstanding | — | — | |||||||||
Common stock, $0.001 par value per share; 270,000,000 shares authorized; 131,793,660 shares issued and outstanding | 132 | 132 | |||||||||
| Additional paid-in capital | 524,281 | 524,239 | |||||||||
| Accumulated other comprehensive loss | (3,416) | (2,403) | |||||||||
| Accumulated deficit | (559,086) | (546,054) | |||||||||
| Total stockholders' deficit | (38,089) | (24,086) | |||||||||
| Total liabilities and stockholders' deficit | $ | 123,519 | $ | 138,824 | |||||||
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See accompanying notes to unaudited condensed consolidated financial statements.
6
Appgate, Inc.
Unaudited Condensed Consolidated Statements of Operations
For the Three and Nine Months Ended September 30, 2023 and 2022
(in thousands, except share and per share information)
Three Months Ended | Nine Months Ended | ||||||||||||||||||||||
| September 30, | September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Revenue | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
| Cost of revenue, exclusive of amortization shown below | 3,566 | 4,292 | 11,054 | 14,084 | |||||||||||||||||||
| Amortization expense | 843 | 954 | 2,530 | 2,862 | |||||||||||||||||||
| Total cost of revenue | 4,409 | 5,246 | 13,584 | 16,946 | |||||||||||||||||||
| Gross profit | 8,175 | 5,356 | 20,498 | 15,863 | |||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||
| Sales and marketing | 5,212 | 9,504 | 16,421 | 37,645 | |||||||||||||||||||
| Research and development | 2,881 | 2,953 | 8,582 | 10,387 | |||||||||||||||||||
| General and administrative | 4,266 | 8,103 | 13,280 | 26,160 | |||||||||||||||||||
| Transaction costs | — | — | — | 2,059 | |||||||||||||||||||
| Depreciation and amortization | 1,346 | 1,370 | 4,054 | 4,116 | |||||||||||||||||||
| Loss on abandonment of assets | — | — | — | 1,658 | |||||||||||||||||||
| Total operating expenses | 13,705 | 21,930 | 42,337 | 82,025 | |||||||||||||||||||
| Loss from operations | (5,530) | (16,574) | (21,839) | (66,162) | |||||||||||||||||||
| Change in fair value of debt purchase options | 17,424 | — | 17,856 | — | |||||||||||||||||||
| Change in fair value of embedded derivative liability | 64,648 | 23,040 | 87,731 | 68,917 | |||||||||||||||||||
| Interest expense, net | (5,606) | (1,829) | (11,368) | (4,303) | |||||||||||||||||||
| Loss on extinguishment of debt | — | — | (77,553) | — | |||||||||||||||||||
| Loss on issuance of debt | (6,431) | — | (6,431) | — | |||||||||||||||||||
| Other expenses, net | (199) | (961) | (369) | (1,341) | |||||||||||||||||||
| Income (loss) from operations before income taxes | 64,306 | 3,676 | (11,973) | (2,889) | |||||||||||||||||||
| Income tax benefit (expense) | 65 | (818) | (1,059) | (1,954) | |||||||||||||||||||
| Net income (loss) | $ | 64,371 | $ | 2,858 | $ | (13,032) | $ | (4,843) | |||||||||||||||
| Income (loss) per share: | |||||||||||||||||||||||
| Net income (loss) per share of common stock - basic | $ | 0.49 | $ | 0.02 | $ | (0.10) | $ | (0.04) | |||||||||||||||
| Net income (loss) per share of common stock - diluted | $ | — | $ | (0.14) | $ | (0.65) | $ | (0.52) | |||||||||||||||
| Weighted-average shares used in computation: | |||||||||||||||||||||||
| Basic | 131,793,660 | 131,793,660 | 131,793,660 | 131,793,660 | |||||||||||||||||||
| Diluted | 173,276,528 | 142,776,465 | 156,180,669 | 142,776,465 | |||||||||||||||||||
See accompanying notes to unaudited condensed consolidated financial statements.
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Appgate, Inc.
Unaudited Condensed Consolidated Statements of Comprehensive Income (Loss)
For the Three and Nine Months Ended September 30, 2023 and 2022
(in thousands)
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Net income (loss) | $ | 64,371 | $ | 2,858 | $ | (13,032) | $ | (4,843) | |||||||||||||||
| Other comprehensive loss: | |||||||||||||||||||||||
| Change in foreign currency translation | (417) | (312) | (1,013) | (473) | |||||||||||||||||||
| Other comprehensive loss | (417) | (312) | (1,013) | (473) | |||||||||||||||||||
| Comprehensive income (loss) | $ | 63,954 | $ | 2,546 | $ | (14,045) | $ | (5,316) | |||||||||||||||
See accompanying notes to unaudited condensed consolidated financial statements.
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Appgate, Inc.
Unaudited Condensed Consolidated Statements of Changes in Stockholders’ Deficit
For the Three and Nine Months Ended September 30, 2023 and 2022
(in thousands, except share information)
| Preferred stock | Common stock | Additional paid-in capital | Accumulated other comprehensive loss | Accumulated deficit | Total stockholders’ deficit | ||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | ||||||||||||||||||||||||||||||||||||||||||||
Balance as of December 31, 2022 | — | $ | — | 131,793,660 | $ | 132 | $ | 524,239 | $ | (2,403) | $ | (546,054) | $ | (24,086) | |||||||||||||||||||||||||||||||||
| Equity-based compensation | — | — | — | — | 42 | — | — | 42 | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | 7,695 | 7,695 | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive income | — | — | — | — | — | (82) | — | (82) | |||||||||||||||||||||||||||||||||||||||
| Balance as of March 31, 2023 | — | — | 131,793,660 | 132 | 524,281 | (2,485) | (538,359) | (16,431) | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | (85,098) | (85,098) | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | — | — | — | — | — | (514) | — | (514) | |||||||||||||||||||||||||||||||||||||||
| Balance as of June 30, 2023 | — | — | 131,793,660 | 132 | 524,281 | (2,999) | (623,457) | (102,043) | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | 64,371 | 64,371 | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | — | — | — | — | — | (417) | — | (417) | |||||||||||||||||||||||||||||||||||||||
| Balance as of September 30, 2023 | — | $ | — | 131,793,660 | $ | 132 | $ | 524,281 | $ | (3,416) | $ | (559,086) | $ | (38,089) | |||||||||||||||||||||||||||||||||
| Balance as of December 31, 2021 | — | $ | — | 131,793,660 | $ | 132 | $ | 509,586 | $ | (1,985) | $ | (515,969) | $ | (8,236) | |||||||||||||||||||||||||||||||||
| Equity-based compensation | — | — | — | — | 3,725 | — | — | 3,725 | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | (69,102) | (69,102) | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | — | — | — | — | — | 218 | — | 218 | |||||||||||||||||||||||||||||||||||||||
| Balance as of March 31, 2022 | — | — | 131,793,660 | 132 | 513,311 | (1,767) | (585,071) | (73,395) | |||||||||||||||||||||||||||||||||||||||
| Equity-based compensation | — | — | — | — | 3,663 | — | — | 3,663 | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | 61,401 | 61,401 | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | — | — | — | — | — | (379) | — | (379) | |||||||||||||||||||||||||||||||||||||||
| Balance as of June 30, 2022 | — | — | 131,793,660 | 132 | 516,974 | (2,146) | (523,670) | (8,710) | |||||||||||||||||||||||||||||||||||||||
| Equity-based compensation | — | — | — | — | 3,641 | — | — | 3,641 | |||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | 2,858 | 2,858 | |||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | — | — | — | — | — | (312) | — | (312) | |||||||||||||||||||||||||||||||||||||||
| Balance as of September 30, 2022 | — | $ | — | 131,793,660 | $ | 132 | $ | 520,615 | $ | (2,458) | $ | (520,812) | $ | (2,523) | |||||||||||||||||||||||||||||||||
See accompanying notes to unaudited condensed consolidated financial statements.
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Appgate, Inc.
Unaudited Condensed Consolidated Statements of Cash Flows
For the Nine Months Ended September 30, 2023 and 2022
(in thousands)
| Nine Months Ended | |||||||||||
| September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Cash flows from operating activities: | |||||||||||
| Net loss | $ | (13,032) | $ | (4,843) | |||||||
| Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||
| Depreciation and amortization | 6,584 | 6,978 | |||||||||
| Loss on abandonment of assets | — | 1,658 | |||||||||
| Equity-based compensation | 42 | 11,029 | |||||||||
| Amortization of deferred contract acquisition costs | 3,167 | 4,661 | |||||||||
| Change in fair value of debt purchase options | (17,856) | — | |||||||||
| Change in fair value of embedded derivative liability | (87,731) | (68,917) | |||||||||
| Non-cash interest expense | 7,819 | — | |||||||||
| Loss on extinguishment of debt | 77,553 | — | |||||||||
| Loss on issuance of debt | 6,431 | — | |||||||||
| Amortization of debt issuance costs | 3,632 | 595 | |||||||||
| Operating lease amortization | (15) | 246 | |||||||||
| Provision for allowance for current expected credit losses | 652 | 521 | |||||||||
| Deferred income taxes | 25 | 531 | |||||||||
| Changes in assets and liabilities: | |||||||||||
| Accounts receivable | (5,211) | (1,257) | |||||||||
| Contract assets | 1,296 | (191) | |||||||||
| Prepaid and other current assets | 1,750 | 3,916 | |||||||||
| Deferred contract acquisition costs | (2,932) | (4,632) | |||||||||
| Accounts payable | (357) | (805) | |||||||||
| Accrued expenses | 36 | (1,938) | |||||||||
| Deferred revenue | 564 | 925 | |||||||||
Net cash, cash equivalents and restricted cash used in operating activities | (17,583) | (51,523) | |||||||||
| Cash flows from investing activities: | |||||||||||
| Purchases of property and equipment | (50) | (514) | |||||||||
| Net cash, cash equivalents and restricted cash used in investing activities | (50) | (514) | |||||||||
| Cash flows from financing activities: | |||||||||||
| Proceeds from AF Convertible Notes | 5,500 | — | |||||||||
| Proceeds from Revolving Credit Facility (Note 8) | 3,500 | 37,500 | |||||||||
Net cash, cash equivalents and restricted cash provided by financing activities | 9,000 | 37,500 | |||||||||
| Effect of foreign currency exchange rates on cash | (174) | (733) | |||||||||
| Net decrease in cash, cash equivalents and restricted cash | (8,807) | (15,270) | |||||||||
| Cash, cash equivalents and restricted cash at beginning of period | 13,004 | 27,463 | |||||||||
| Cash, cash equivalents and restricted cash at end of period | $ | 4,197 | $ | 12,193 | |||||||
| Cash and cash equivalents | $ | 3,584 | $ | 10,720 | |||||||
| Restricted cash | 613 | 1,473 | |||||||||
| Cash, cash equivalents and restricted cash at end of period | $ | 4,197 | $ | 12,193 | |||||||
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| Nine Months Ended | |||||||||||
| September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Supplemental cash flow information: | |||||||||||
| Cash paid for interest | $ | — | $ | 3,503 | |||||||
| Interest exchanged for PIK Convertible Senior Notes (Note 8) | $ | 4,516 | $ | — | |||||||
| Cash paid for income taxes, net of refunds | $ | 922 | $ | 1,682 | |||||||
See accompanying notes to unaudited condensed consolidated financial statements.
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Note 1. Business and Summary of Significant Accounting Policies
Description of the Business
Appgate, Inc., a Delaware corporation (“Appgate”, the “Company”, “we”, “us”, or “our”), is a cybersecurity company that protects against breaches and fraud through innovative, identity-centric, Zero Trust solutions. Appgate exists to provide modern enterprises with a solution to increasingly common cyber-attacks, against which traditional cybersecurity tools are proving ineffective. We sell and deliver our solutions using a combination of term-based license subscriptions, perpetual licenses and software-as-a-service (“SaaS”), together with related support services. We conduct business worldwide. Our headquarters is in Coral Gables, Florida.
Basis of Presentation and Use of Estimates
The accompanying unaudited condensed consolidated financial statements have been prepared by our management and reflect all adjustments, consisting only of normal recurring adjustments, which in the opinion of management are necessary to fairly state the financial position and the results of operations for the interim periods presented. The condensed consolidated balance sheet data as of December 31, 2022 has been derived from our audited consolidated financial statements as of that date. The condensed consolidated financial statements have been prepared in accordance with the regulations of the Securities and Exchange Commission (“SEC”) but omit certain information and footnote disclosure necessary to present the statements in accordance with generally accepted accounting principles in the United States of America (“GAAP”). For further information, refer to our audited consolidated financial statements as of and for the year ended December 31, 2022 included in our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 31, 2023 (the “2022 Annual Report”). Results for the interim periods are not necessarily indicative of results to be expected for the entirety of 2023.
All references to “$” or “dollars” are to the currency of the United States (“U.S.”) unless otherwise indicated. We operate on a calendar year basis. References to 2022, for example, refer to our year ended December 31, 2022.
Liquidity and Going Concern
The accompanying unaudited condensed consolidated financial statements have been prepared assuming the Company will continue as a going concern. The going concern basis of presentation assumes that the Company will continue in operation one year after the date these financial statements are issued and will be able to realize its assets and discharge its liabilities and commitments in the normal course of business.
Pursuant to the requirements of the Financial Accounting Standards Board’s (the “FASB”) Accounting Standards Codification (“ASC”) Topic 205-40, Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern, management must evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Company’s ability to continue as a going concern for one year from the date these financial statements are issued. This evaluation does not take into consideration the potential mitigating effect of management’s plans that have not been fully implemented or are not within control of the Company as of the date the financial statements are issued. When substantial doubt exists under this methodology, management evaluates whether the mitigating effect of its plans sufficiently alleviates substantial doubt about the Company’s ability to continue as a going concern. The mitigating effect of management’s plans, however, is only considered if both (1) it is probable that the plans will be effectively implemented within one year after the date that the financial statements are issued, and (2) it is probable that the plans, when implemented, will mitigate the relevant conditions or events that raise substantial doubt about the entity’s ability to continue as a going concern within one year after the date that the financial statements are issued.
The Company had cash and cash equivalents of $3.6 million at September 30, 2023, a loss from operations of $21.8 million for the nine months ended September 30, 2023, and an accumulated deficit of $559.1 million at September 30, 2023. Current economic and market conditions have put pressure on our growth plans. The Company’s ability to continue as a going concern is dependent on its ability to obtain additional capital. The Company believes that its current level of cash and cash equivalents are not sufficient to continue investing in growth, while at the same time meeting
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its obligations as they become due. These conditions raise substantial doubt regarding our ability to continue as a going concern for a period of at least one year from the date of issuance of these unaudited condensed consolidated financial statements. In an effort to alleviate these conditions, management is currently evaluating various cost reduction and other alternatives and may seek to raise additional funds through the issuance of equity, mezzanine or debt securities, through arrangements with strategic partners, through obtaining credit from financial institutions or otherwise. The Company implemented two reductions in force in July 2022 and February 2023 as well as several other cost reduction initiatives, but, as of the date of issuance of these unaudited condensed consolidated financial statements, does not have any additional funding commitment in place. The actual amount that we may be able to raise under these alternatives will depend on market conditions and other factors, as well as limitations under our A&R Note Issuance Agreement (as defined in Note 8), the A&R Revolving Credit Agreement (as defined in Note 8) and the AF Note Issuance Agreement (as defined in Note 8). As we seek additional sources of financing, there can be no assurance that such financing would be available to us on favorable terms or at all. Our ability to obtain additional financing in the debt and equity capital markets is subject to several factors, including market and economic conditions, our performance and investor sentiment with respect to us and our industry. As a result of these uncertainties, and notwithstanding management’s plans and efforts to date, there is substantial doubt about our ability to continue as a going concern.
Recently Adopted Accounting Pronouncements
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. This standard amends guidance on reporting credit losses for assets held at amortized cost basis and available-for-sale debt securities to require that credit losses on available-for-sale debt securities be presented as an allowance rather than as a write-down. The measurement of credit losses for newly recognized financial assets and subsequent changes in the allowance for credit losses are recorded in the statements of operations. This standard is effective for smaller reporting companies for fiscal years beginning after December 15, 2022, with early adoption permitted. We adopted this standard effective January 1, 2023 using the modified retrospective transition method. The adoption of this standard did not have a material impact to our unaudited condensed consolidated financial statements.
Note 2. Income (Loss) per Common Share
Basic income (loss) per common share is computed by dividing net income (loss) (the numerator) by the weighted-average number of shares of common stock outstanding (the denominator) for the period. Diluted income (loss) per common share assumes that any dilutive equity instruments were exercised with outstanding common stock adjusted accordingly when the conversion of such instruments would be dilutive.
For the three and nine months ended September 30, 2023, the Company’s potential dilutive shares consist of shares of Appgate’s common stock underlying the Convertible Senior Notes and the AF Convertible Notes that are convertible at any time at the option of the holders of the Convertible Senior Notes or AF Convertible Notes, respectively, prior to their maturity - see Note 8. For the three and nine months ended September 30, 2022, the Company’s potential dilutive shares consist of shares of Appgate’s common stock underlying the Convertible Senior Notes that are convertible at any time at the option of the holders of the Convertible Senior Notes prior to their maturity - see Note 8.
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The following table summarizes the basic and diluted earnings per share calculations (in thousands, except share and per share amounts).
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Numerator: | |||||||||||||||||||||||
| Net income (loss) attributable to common stockholders - basic | $ | 64,371 | $ | 2,858 | $ | (13,032) | $ | (4,843) | |||||||||||||||
| Add: Effect of mark-to-market adjustment recognized during the period | (64,648) | (23,040) | (87,731) | (68,917) | |||||||||||||||||||
| Net income (loss) attributable to common stockholders - diluted | $ | (277) | $ | (20,182) | $ | (100,763) | $ | (73,760) | |||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted-average shares of common stock - basic | 131,793,660 | 131,793,660 | 131,793,660 | 131,793,660 | |||||||||||||||||||
| Effect from conversion of shares of common stock (Note 8) | 41,482,868 | 10,982,805 | 24,387,009 | 10,982,805 | |||||||||||||||||||
| Weighted-average shares of common stock - diluted | 173,276,528 | 142,776,465 | 156,180,669 | 142,776,465 | |||||||||||||||||||
| Basic income (loss) per share | $ | 0.49 | $ | 0.02 | $ | (0.10) | $ | (0.04) | |||||||||||||||
| Diluted income (loss) per share | $ | — | $ | (0.14) | $ | (0.65) | $ | (0.52) | |||||||||||||||
Note 3. Revenue
Disaggregation of Revenue
The following table summarizes our revenue by category (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Subscription revenue: | |||||||||||||||||||||||
| Multi-year subscription term-based licenses | $ | 3,427 | $ | 2,825 | $ | 10,052 | $ | 9,836 | |||||||||||||||
| 1-year subscription term-based licenses | 4,798 | 2,377 | 10,161 | 7,193 | |||||||||||||||||||
| Total subscription term-based licenses | 8,225 | 5,202 | 20,213 | 17,029 | |||||||||||||||||||
| Subscription SaaS | 2,033 | 2,139 | 6,158 | 6,577 | |||||||||||||||||||
| Support and maintenance | 800 | 963 | 2,624 | 2,861 | |||||||||||||||||||
| Total subscription revenue | 11,058 | 8,304 | 28,995 | 26,467 | |||||||||||||||||||
| Perpetual licenses | 69 | 710 | 559 | 1,217 | |||||||||||||||||||
| Services and other | 1,457 | 1,588 | 4,528 | 5,125 | |||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
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The following table summarizes revenue (in thousands) by country and main geography in which we operate based on the billing address of customers (including, for the avoidance of doubt, resellers and managed service providers) who have contracted with us:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Revenues by country (a): | |||||||||||||||||||||||
| United States | $ | 7,523 | $ | 5,337 | $ | 18,503 | $ | 16,898 | |||||||||||||||
| Ecuador | 571 | 1,354 | 2,082 | 2,719 | |||||||||||||||||||
| Colombia | 675 | 1,217 | 2,514 | 4,126 | |||||||||||||||||||
| Other | 3,815 | 2,694 | 10,983 | 9,066 | |||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
| Revenues by main geography: | |||||||||||||||||||||||
| US&C | $ | 7,737 | $ | 5,528 | $ | 20,274 | $ | 18,515 | |||||||||||||||
| LATAM | 3,063 | 3,852 | 8,973 | 10,393 | |||||||||||||||||||
| EMEA | 1,095 | 713 | 3,056 | 2,238 | |||||||||||||||||||
| APAC | 689 | 509 | 1,779 | 1,663 | |||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
(a) Only the United States, Ecuador and Colombia represented 10% or more of our total revenue in any of the periods presented.
Significant Customers
No single customer (including, for the avoidance of doubt, resellers and managed service providers) accounted for 10% or more of the total revenue in any of the periods presented.
Contract Balances
Timing of revenue recognition may differ from the timing of invoicing to customers. We record an unbilled receivable when revenue is recognized prior to invoicing, or deferred revenue when revenue is recognized after invoicing. For multi-year agreements, we generally invoice customers annually at the beginning of each annual coverage period. We record a receivable related to revenue recognized for multi-year on-premises licenses as we generally have an unconditional right to invoice and receive payment in the future related to those licenses.
Contract liabilities consist of deferred revenue and include payments received in advance of performance under a customer contract. Such amounts are recognized as revenue over the remaining contractual period. During the three months ended September 30, 2023 and 2022, we recognized revenue of $2.2 million and $3.1 million, respectively, that was included in the corresponding contract liability balance at the beginning of the related period. During the nine months ended September 30, 2023 and 2022, we recognized revenue of $5.1 million and $5.4 million, respectively, that was included in the corresponding contract liability balance at the beginning of the related period.
We receive payments from customers based upon contractual billing schedules and accounts receivable are recorded when the right to consideration becomes unconditional. Payment terms on invoiced amounts are typically 30 days to 45 days. Contract assets include amounts related to our contractual right to consideration for both completed and partially completed performance obligations that may not have been invoiced. Unbilled receivables were $9.3 million and $10.6 million as of September 30, 2023 and December 31, 2022, respectively.
In instances where the timing of revenue recognition differs from the timing of invoicing, we have determined our contracts generally do not include a significant financing component. The primary purpose of our invoicing terms is to provide customers with simplified and predictable ways of purchasing our products and services, not to provide customers
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with financing. Examples include invoicing at the beginning of a subscription term for SaaS services that do not contain variable consideration with revenue recognized ratably over the contract period, and multi-year on-premises licenses that do not contain variable consideration that are invoiced annually with license revenue recognized upfront and support and maintenance revenue recognized ratably over the contract period.
Opening and closing contract balances were as follows (in thousands):
| September 30, 2023 | December 31, 2022 | January 1, 2022 | |||||||||||||||
| Accounts receivable, net | $ | 8,048 | $ | 4,231 | $ | 6,848 | |||||||||||
| Contract assets, current | 3,040 | 1,462 | 1,458 | ||||||||||||||
| Contract assets, noncurrent | 6,265 | 9,134 | 8,630 | ||||||||||||||
| Deferred revenue, current | 5,971 | 5,578 | 5,274 | ||||||||||||||
| Deferred revenue, noncurrent | 1,081 | 909 | 717 | ||||||||||||||
Remaining Performance Obligations
The typical contractual term for term-based licenses and support and maintenance is to three years. Most of our contracts are non-cancelable. However, customers typically have the right to terminate their contracts for cause if we fail to perform and cure within the applicable cure period. As of September 30, 2023, the aggregate amount of the transaction price allocated to remaining performance obligations was $30.3 million. We expect to recognize 41% of the transaction price over the next 12 months, with the remainder recognized thereafter.
Costs to Obtain and Fulfill a Contract
The following table summarizes the activity of the deferred contract acquisition costs (in thousands):
| Nine Months Ended | Year Ended | ||||||||||
| September 30, | December 31, | ||||||||||
| 2023 | 2022 | ||||||||||
| Beginning balance | $ | 4,611 | $ | 4,305 | |||||||
| Capitalization of contract acquisition costs | 2,622 | 6,146 | |||||||||
| Amortization of deferred contract acquisition costs | (3,167) | (5,951) | |||||||||
| Impacts of foreign currency translation | 237 | 111 | |||||||||
| Ending balance | $ | 4,303 | $ | 4,611 | |||||||
| Deferred contract acquisition costs, current | $ | 1,554 | $ | 1,508 | |||||||
| Deferred contract acquisition costs, noncurrent | $ | 2,749 | $ | 3,103 | |||||||
We periodically review the carrying amount of deferred contract acquisition costs to determine whether events or changes in circumstances have occurred that could impact the period of benefit of these deferred costs. We did not recognize any impairment losses of deferred contract acquisition costs during the nine months ended September 30, 2023 or 2022.
Sales commissions accrued but not paid as of September 30, 2023 and December 31, 2022 totaled $1.0 million and $0.9 million, respectively, and are included within accrued expenses in the condensed consolidated balance sheets.
Our fulfillment costs are generally not significant.
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Note 4. Financial Instruments and Fair Value Measurements
Our financial instruments consist of cash equivalents, accounts receivable, accounts payable, accrued expenses, deferred revenue, our debt and related accrued interest, embedded derivative liability and call option liability. The fair value of cash equivalents, accounts receivable, accounts payable, accrued expenses, and deferred revenue approximate their carrying value because of the short-term nature of these instruments. The fair value of the Revolving Credit Facility approximates fair value as the Company has the ability to repay the outstanding principal at par value at any time.
The carrying value of our Convertible Senior Notes, net of issuance costs and discount, was $67.3 million and $73.8 million as of September 30, 2023 and December 31, 2022, respectively. The fair value of the Convertible Senior Notes was estimated as $61.8 million and $64.6 million as of September 30, 2023 and December 31, 2022, respectively. The fair value was estimated using a discounted cash flow analysis with a yield based on our credit rating. These inputs are considered Level 3 inputs within the fair value hierarchy.
The carrying value of our AF Convertible Notes, net of discount, was $3.0 million as of September 30, 2023. The fair value of the AF Convertible Notes was estimated as $4.8 million as of September 30, 2023. The fair value was estimated using a discounted cash flow analysis with a yield based on our credit rating. These inputs are considered Level 3 inputs within the fair value hierarchy.
Recurring Fair Value Measurements
Debt Purchase Options
The fair values of the call option liabilities were estimated using TF binomial lattice models as of September 30, 2023. The models leverage the notes value nodes from the TF lattice models to determine the value of the Convertible Senior Notes and AF Convertible Notes over the term to expiry of the debt purchase options. Therefore, we have classified the call option liabilities as Level 3 liabilities within the fair value hierarchy.
Embedded Derivative Liability
The fair value of the embedded derivative liability was estimated using a “with and without” approach as of September 30, 2023 and December 31, 2022:
•“With” scenario: the fair value of the Convertible Senior Notes as of the valuation date is estimated based on a Two-Factor binomial lattice model.
•“Without” scenario: the fair value of the Convertible Senior Notes “without” the embedded features was estimated using a DCF model whereby the contractual cash flows absent the embedded derivative (i.e., the coupon and principal payments) are discounted at a risk-adjusted rate.
Therefore, we have classified the embedded derivative liability as a Level 3 liability within the fair value hierarchy.
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The following table summarizes fair value measurements by level at September 30, 2023 and December 31, 2022 for instruments measured at fair value on a recurring basis (in thousands):
| Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||
| September 30, 2023 | |||||||||||||||||||||||
| Financial liabilities: | |||||||||||||||||||||||
| Debt purchase options | $ | — | $ | — | $ | 3,582 | $ | 3,582 | |||||||||||||||
| Embedded derivative liability | — | — | 10,810 | 10,810 | |||||||||||||||||||
| December 31, 2022 | |||||||||||||||||||||||
| Financial liability: | |||||||||||||||||||||||
| Embedded derivative liability | $ | — | $ | — | $ | 19,700 | $ | 19,700 | |||||||||||||||
The following table presents the changes in Level 3 liabilities measured at fair value on a recurring basis during the three and nine months ended September 30, 2023 and 2022 (in thousands):
| Debt purchase options | Embedded derivative liability | Total liabilities | |||||||||||||||
| Balance at January 1, 2023 | $ | — | $ | 19,700 | $ | 19,700 | |||||||||||
| Gain included in earnings | — | (19,634) | (19,634) | ||||||||||||||
| Balance as of March 31, 2023 | — | 66 | 66 | ||||||||||||||
| Loss included in earnings | 12,075 | 75,392 | 87,467 | ||||||||||||||
| Balance as of June 30, 2023 | 12,075 | 75,458 | 87,533 | ||||||||||||||
| Gain included in earnings | (8,493) | (64,648) | (73,141) | ||||||||||||||
| Balance as of September 30, 2023 | $ | 3,582 | $ | 10,810 | $ | 14,392 | |||||||||||
| Balance at January 1, 2022 | $ | — | $ | 78,497 | $ | 78,497 | |||||||||||
| Loss included in earnings | — | 46,143 | 46,143 | ||||||||||||||
| Balance as of March 31, 2022 | — | 124,640 | 124,640 | ||||||||||||||
| Gain included in earnings | — | (92,020) | (92,020) | ||||||||||||||
| Balance as of June 30, 2022 | — | 32,620 | 32,620 | ||||||||||||||
| Gain included in earnings | — | (23,040) | (23,040) | ||||||||||||||
| Balance as of September 30, 2022 | $ | — | $ | 9,580 | $ | 9,580 | |||||||||||
Except as otherwise stated below, the losses/gains related to the debt purchase options and the embedded derivative liability included in the previous table are reported in our condensed consolidated statements of operations within change in fair value of debt purchase options and change in fair value of embedded derivative liability, respectively. The loss amounts for the three months ended June 30, 2023 include $12.5 million and $78.8 million related to the debt purchase option and embedded derivative liability, respectively, reported in our condensed consolidated statement of operations within loss on extinguishment of debt.
There were no transfers between fair value measurement levels during the three and nine months ended September 30, 2023 or 2022. There were no other Level 3 liabilities outstanding during the three and nine months ended September 30, 2023 or 2022.
The significant unobservable inputs used in the fair value measurement of our debt purchase option and embedded derivative liability underlying the Convertible Senior Notes at September 30, 2023 and December 31, 2022 are a volatility rate of 94.5% and 72.5%, respectively, and a bond yield of 20.56% and 21.78%, respectively. The expected volatility of our equity is estimated based on the historical volatility of our common stock and the remaining term of the Convertible Senior Notes of 4.4 years and 1.1 years at September 30, 2023 and December 31, 2022, respectively. We consider those inputs to be significant as changes in any of those inputs in isolation would result in significantly lower (higher) fair value measurement. Generally, a change in our volatility assumption will generate a directionally similar change in the overall
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value of the instrument, while a change in the bond yield will generate a directionally opposite change in the overall value of the instrument.
The significant unobservable inputs used in the fair value measurement of our debt purchase option underlying the AF Convertible Notes at September 30, 2023 are a volatility rate of 94.5% and a bond yield of 24.37%. The expected volatility of our equity is estimated based on the historical volatility of our common stock and the remaining term of the AF Convertible Notes of 4.6 years at September 30, 2023. We consider those inputs to be significant as changes in any of those inputs in isolation would result in significantly lower (higher) fair value measurement. Generally, a change in our volatility assumption will generate a directionally similar change in the overall value of the instrument, while a change in the bond yield will generate a directionally opposite change in the overall value of the instrument.
Note 5. Balance Sheet Components
Accounts Receivable and Allowance for Current Expected Credit Losses
Our accounts receivable represent amounts invoiced and due from our customers (including, for the avoidance of doubt, resellers and managed service providers) under our revenue contracts and are financial assets analyzed by the Company under the expected credit loss model. To measure expected credit losses, accounts receivables are grouped based on days past due (i.e., delinquency status), while considering that the expected credit loss rate is likely to increase as receivables move to older aging buckets. The Company uses the following aging categories to estimate the risk of delinquency status: (i) 0 days past due; (ii) 1-30 days past due; (iii) 31-60 days past due; (iv) 61-90 days past due; (v) 91-180 days past due; (vi) 181-360 days past due; and (vii) over 360 days past due.
The credit losses of the Company’s accounts receivable have been low historically and most balances are collected within one year. Therefore, the Company determined that the expected loss rates should be calculated using the historical loss rates adjusted by macroeconomic factors. The historical rates are calculated for each of the aging categories used for pooling trade receivables. To determine the collected portion of each bucket, the collection time of each trade receivable is identified, to estimate the proportion of outstanding balances per aging bucket that ultimately will not be collected. This is used to determine the expectation of losses based on the history of uncollected trade receivables once the specific past due period is surpassed.
The historical rates are adjusted to reflect current and forward-looking information on macroeconomic factors affecting the ability of customers to settle the receivables by applying a forward-looking macroeconomic factor. Specific reserves are established for certain customers for which collection is doubtful.
The activity in the allowance for current expected credit losses was as follows (in thousands):
| Nine Months Ended | Year Ended | ||||||||||
| September 30, | December 31, | ||||||||||
| 2023 | 2022 | ||||||||||
| Beginning balance | $ | 52 | $ | 163 | |||||||
| Provision for allowance for current expected credit losses | 652 | 857 | |||||||||
| Write offs | (601) | (952) | |||||||||
| Impacts of foreign currency translation | 4 | (16) | |||||||||
| Ending balance | $ | 107 | $ | 52 | |||||||
The Company does not have a delinquency threshold for writing-off accounts receivable. The Company has a formal process for the review and approval of write offs. Impairment losses on trade receivables, if any, would be presented as net impairment losses within cost of revenue, exclusive of amortization in the unaudited condensed consolidated statements of operations. Subsequent recoveries of amounts previously written off, when applicable, are credited against the allowance for expected current credit losses within accounts receivable, net on the unaudited condensed consolidated balance sheets.
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Prepaid and Other Current Assets
Our prepaid and other current assets consisted of the following as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | ||||||||||
| Prepaid expenses | $ | 1,263 | $ | 2,879 | |||||||
| Withholding taxes | 385 | 638 | |||||||||
| Total | 1,648 | 3,517 | |||||||||
Property and Equipment, Net
Our property and equipment, net consisted of the following as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | ||||||||||
| Leasehold improvements | $ | 3,862 | $ | 3,912 | |||||||
| Equipment and fixtures | 4,184 | 4,078 | |||||||||
| 8,046 | 7,990 | ||||||||||
| Less: accumulated depreciation and amortization | (6,882) | (6,373) | |||||||||
| Property and equipment, net | $ | 1,164 | $ | 1,617 | |||||||
During the three and nine months ended September 30, 2023, we recognized depreciation and amortization expense on property and equipment of $0.2 million and $0.6 million, respectively. During the three and nine months ended September 30, 2022, we recognized depreciation and amortization expense on property and equipment of $0.2 million and $0.7 million, respectively.
Accrued Expenses
Our accrued expenses consisted of the following as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | ||||||||||
| Accrued compensation and benefits | $ | 5,188 | $ | 4,483 | |||||||
| Accrued interest | — | 3,506 | |||||||||
| Accrued services | 1,031 | 1,092 | |||||||||
| Accrued income taxes | 116 | 350 | |||||||||
| Accrued other taxes | 903 | 767 | |||||||||
| Other | 139 | 42 | |||||||||
| Total | $ | 7,377 | $ | 10,240 | |||||||
Note 6. Goodwill and Intangible Assets
Goodwill
The carrying amount of goodwill was $71.6 million as of September 30, 2023 and December 31, 2022.
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Intangible Assets, Net
Our acquired intangible assets subject to amortization consist of customer relationships, trademarks and tradenames, and developed technology and were originally acquired by Cyxtera Technologies, Inc. (“Cyxtera”) when it acquired the entities that formed our wholly-owned subsidiary, Appgate Cybersecurity, Inc. (f/k/a Cyxtera Cybersecurity, Inc. d/b/a AppGate, “Legacy Appgate”). The useful lives of the assets were as follows: (i) customer relationships – 7.5 to 17.5 years, (ii) trademarks and tradenames – 8.5 to 14.5 years, and (iii) developed technology – 2.5 to 7.5 years. Acquired intangibles subject to amortization consist of the following as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | Weighted average remaining useful life (Years) | |||||||||||||||||||||||||||||||||||||||
| Gross | Accumulated amortization | Net | Gross | Accumulated amortization | Net | ||||||||||||||||||||||||||||||||||||
| Customer relationships | $ | 30,157 | $ | (21,583) | $ | 8,574 | $ | 30,157 | $ | (19,064) | $ | 11,093 | 3 | ||||||||||||||||||||||||||||
Trademarks and tradenames | 17,932 | (9,733) | 8,199 | 17,932 | (8,826) | 9,106 | 7.3 | ||||||||||||||||||||||||||||||||||
| Developed technology | 34,279 | (30,559) | 3,720 | 34,279 | (28,029) | 6,250 | 1.1 | ||||||||||||||||||||||||||||||||||
| Total | $ | 82,368 | $ | (61,875) | $ | 20,493 | $ | 82,368 | $ | (55,919) | $ | 26,449 | |||||||||||||||||||||||||||||
We stopped offering our Compliance Sheriff product. As a result, during the nine months ended September 30, 2022 we recorded a loss on abandonment of the related intangible assets (namely, trademarks and tradenames and developed technology) of $1.7 million (all of which was recorded during the first quarter of 2022). Other than the loss on abandonment, the main change in the carrying amount of each major class of intangible assets during each of the three and nine months ended September 30, 2023 and 2022 was amortization, and to a lesser extent, foreign currency translation.
During the three and nine months ended September 30, 2023, we recorded amortization expense on intangible assets of $2.0 million and $6.0 million, respectively. During the three and nine months ended September 30, 2022, we recorded amortization expense on intangible assets of $2.1 million and $6.3 million, respectively. Amortization expense for all intangible assets, except our developed technology, was recorded within depreciation and amortization expense in the condensed consolidated statements of operations. Amortization expense for our developed technology was recorded within cost of revenue in the condensed consolidated statements of operations.
Future amortization expense of intangible assets is as follows (in thousands):
| For the years ending: | |||||
| Remaining 2023 | $ | 1,985 | |||
| 2024 | 7,377 | ||||
| 2025 | 4,224 | ||||
| 2026 | 2,297 | ||||
| 2027 | 1,140 | ||||
| Thereafter | 3,470 | ||||
| Total | $ | 20,493 | |||
Impairment Tests
We perform annual impairment tests of goodwill on October 1st of each year or whenever an indicator of impairment exists. We have determined that the Company has one reporting unit, which is at the operating segment level and the entire goodwill is allocated to it. The carrying value of the reporting unit was negative at period end. No impairment was recorded during the nine months ended September 30, 2023 or 2022.
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Note 7. Leases
We lease office space and certain colocation space under non-cancelable operating lease agreements. We are also party to agreements that have been determined to be short-term leases.
Operating Leases
The following is a summary of our operating lease costs for the three and nine months ended September 30, 2023 and 2022 (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Operating lease cost | $ | 136 | $ | 218 | $ | 471 | $ | 492 | |||||||||||||||
| Short-term lease cost | 44 | 94 | 141 | 123 | |||||||||||||||||||
| Variable lease cost | 21 | 19 | 58 | 23 | |||||||||||||||||||
| Total operating lease costs | $ | 201 | $ | 331 | $ | 670 | $ | 638 | |||||||||||||||
The following table presents information about leases on our condensed consolidated balance sheets as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | ||||||||||
| Operating lease right-of-use assets | $ | 1,297 | $ | 1,679 | |||||||
| Operating lease liabilities, current | $ | 586 | $ | 619 | |||||||
| Operating lease liabilities, noncurrent | $ | 886 | $ | 1,261 | |||||||
At September 30, 2023, the weighted-average remaining lease term and weighted-average discount rate for operating leases were 2.9 years and 6.68%, respectively. At December 31, 2022, the weighted-average remaining lease term and weighted-average discount rate for operating leases were 3.5 years and 6.52%, respectively.
Cash paid for amounts included in the measurement of operating lease liabilities was $0.1 million and $0.7 million for the nine months ended September 30, 2023 and 2022, respectively.
There were no right-of-use assets obtained in exchange for lease obligations during the nine months ended September 30, 2023 or 2022.
Maturities of operating lease liabilities consisted of the following as of September 30, 2023 (in thousands):
| For the years ending: | |||||
| Remaining 2023 | $ | 138 | |||
| 2024 | 546 | ||||
| 2025 | 519 | ||||
| 2026 | 354 | ||||
| 2027 | 27 | ||||
| Thereafter | — | ||||
| Total future minimum lease payments | 1,584 | ||||
| Less: Imputed interest | (112) | ||||
Total | $ | 1,472 | |||
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Note 8. Debt
Our debt consists of the following as of September 30, 2023 and December 31, 2022 (in thousands):
| September 30, 2023 | December 31, 2022 | ||||||||||
| Convertible Senior Notes | |||||||||||
| Principal amount | $ | 79,516 | $ | 75,000 | |||||||
| Unamortized debt issuance costs and discount | (12,183) | (1,231) | |||||||||
| Net carrying amount | 67,333 | 73,769 | |||||||||
| AF Convertible Notes | |||||||||||
| Principal amount | 5,500 | — | |||||||||
| Unamortized discount | (2,462) | — | |||||||||
| Net carrying amount | 3,038 | — | |||||||||
| Revolving Credit Facility | |||||||||||
| Principal amount | 50,000 | 46,500 | |||||||||
| Unamortized debt issuance costs | (46) | — | |||||||||
| Net carrying amount | 49,954 | 46,500 | |||||||||
| Total debt | $ | 120,325 | $ | 120,269 | |||||||
Interest expense, net was as follows (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Interest expense on Convertible Senior Notes | $ | 1,672 | $ | 938 | $ | 4,080 | $ | 2,813 | |||||||||||||||
| Interest expense on AF Convertible Notes | 73 | — | 73 | — | |||||||||||||||||||
| Interest expense on Revolving Credit Facility | 1,251 | 715 | 3,666 | 924 | |||||||||||||||||||
| Amortization of debt issuance costs and discount | 2,650 | 163 | 3,632 | 595 | |||||||||||||||||||
| Other, net | (40) | 13 | (83) | (29) | |||||||||||||||||||
| Total interest expense, net | $ | 5,606 | $ | 1,829 | $ | 11,368 | $ | 4,303 | |||||||||||||||
Interest accrued but not paid as of September 30, 2023 totaled $6.8 million and is reported as accrued interest on long-term debt in the condensed consolidated balance sheet. Interest accrued but not paid as of December 31, 2022 totaled $3.5 million and is included within accrued expenses in the condensed consolidated balance sheet.
Convertible Senior Notes
On February 9, 2021, Legacy Appgate issued $50.0 million in aggregate principal amount of convertible senior notes due 2024 (the “Initial Convertible Senior Notes”) to various funds managed by Magnetar Financial LLC (“Magnetar”). In connection with the closing of the merger of Newtown Merger Sub, Corp. (“Merger Sub”) with and into Legacy Appgate, with Legacy Appgate surviving and becoming a wholly owned subsidiary of Appgate (the “Merger”), Legacy Appgate issued an additional $25.0 million in aggregate principal amount of convertible senior notes due 2024 to various funds managed by Magnetar (the “Additional Convertible Senior Notes” and together with the Initial Convertible Senior Notes and any PIK Convertible Senior Notes (as defined below), the “Convertible Senior Notes”). The Convertible Senior Notes were originally subject to the terms and conditions of a note issuance agreement (the “Original Note Issuance Agreement”) among Legacy Appgate, Legacy Appgate’s wholly owned domestic subsidiaries, and Magnetar, in its capacity as the representative (the “Representative”) of the holders of the Convertible Senior Notes (the “Noteholders”), and a note purchase agreement among Legacy Appgate and the Noteholders (the “Original Note Purchase Agreement”). Capitalized terms not otherwise defined in this Note 8 have the meanings ascribed to them in the A&R Note Issuance Agreement (as defined below).
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We received net proceeds of $72.8 million from the issuance of the Initial Convertible Senior Notes and Additional Convertible Senior Notes, after deducting fees and expenses of $2.2 million. We recorded these fees and expenses as debt issuance costs that will be amortized over the term of the Convertible Senior Notes.
On February 1, 2023 and August 1, 2023, Legacy Appgate issued approximately $2.1 million and $2.5 million, respectively, in PIK Convertible Senior Notes each with respect to a single interest payment date.
Supplemental Agreement
On October 12, 2021, in connection with the closing of the Merger, Appgate (which at the time was Newtown Lane Marketing, Incorporated (“Newtown Lane”)) entered into a supplemental agreement (the “Supplemental Agreement”) with Legacy Appgate and Magnetar, as Representative of the Noteholders, pursuant to which Appgate, among other things, unconditionally guaranteed all of Legacy Appgate’s Obligations under the Original Note Issuance Agreement, including the Convertible Senior Notes, and assumed all of Legacy Appgate’s Conversion Obligations and Change of Control Conversion Obligations under the Original Note Issuance Agreement.
Amended and Restated Note Issuance Agreement; Amended and Restated Note Purchase Agreement; Amendment to Registration Rights Agreement; Subsequent Amendment to Registration Rights Agreement
On June 9, 2023, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries, Easy Solutions Japan, GK (“ES Japan”), Easy Solutions S.A.S. (“ES Colombia” and, collectively with the domestic subsidiaries, Appgate and ES Japan, the “Note Guarantors”), Magnetar, and U.S. Bank Trust Company, National Association, as collateral agent (in such capacity, the “Collateral Agent”), entered into an amended and restated note issuance agreement (the “A&R Note Issuance Agreement”), pursuant to which the Original Note Issuance Agreement was amended and restated to (i) secure the obligations under the Convertible Senior Notes and the other related agreements with a first priority security interest in substantially all assets of Legacy Appgate and the Note Guarantors, (ii) extend the maturity date of the Convertible Senior Notes from February 9, 2024 to February 9, 2026, or, at Magnetar’s election, February 9, 2028 (in each case, unless earlier converted, redeemed, or repurchased), (iii) modify the financial covenant contained in the Original Note Issuance Agreement to provide that Appgate maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter (as further described below), (iv) increase the interest payable semi-annually under the Convertible Senior Notes from an annual rate of 5.00% if paid in cash or 5.50% if paid in kind to an annual rate of 8.00% if paid in cash or 8.50% if paid in kind, with such increase effective as of June 9, 2023, and (v) increase the conversion rate for each $1,000 principal amount of Convertible Senior Notes from 146.4374 shares of common stock of Appgate to a conversion rate of 527.17464 shares of common stock of Appgate; provided, that, in the event that Legacy Appgate fails to achieve Bookings (as defined in the A&R Note Issuance Agreement) of at least $15.0 million during the fiscal year ending December 31, 2023, the conversion rate will increase to 585.74960 shares of common stock of Appgate for each $1,000 principal amount of Notes (such increased number of shares of common stock into which the Notes may be converted, the “Additional Conversion Shares”). The Convertible Senior Notes are senior obligations of Legacy Appgate and unconditionally guaranteed, jointly and severally, by each of the Note Guarantors. The A&R Note Issuance Agreement includes certain affirmative and financial covenants we are required to satisfy (as further described below).
Additionally on June 9, 2023, Appgate, Legacy Appgate, and the lenders thereunder (the “Lenders”) entered into an amended and restated note purchase agreement (the “A&R Note Purchase Agreement”), pursuant to which the Original Note Purchase Agreement was amended and restated to (i) provide for the purchase by the Lenders of up to $15.0 million aggregate principal amount of additional Convertible Senior Notes in one or more subsequent closings on or prior to June 9, 2025 and (ii) amend all previously issued Convertible Senior Notes to reflect terms consistent with the A&R Note Issuance Agreement. Except for the foregoing, the terms of the A&R Note Purchase Agreement are substantially the same as the terms of the Original Note Purchase Agreement.
Pursuant to ASC 470-50-40-2, the restructuring of the Note Purchase Agreement into the A&R Note Purchase Agreement resulted in a debt extinguishment, following which we recognized a loss of $77.6 million.
Concurrently with the execution of the A&R Note Issuance Agreement, Appgate, Legacy Appgate, the Representative and the Noteholders entered into an amendment to registration rights agreement (the “Amendment to Registration Rights Agreement”), pursuant to which, Appgate would be obligated to file a registration statement by no later than October 31, 2023 to register the resale of certain securities of Appgate (including Appgate’s common stock issuable
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upon conversion of the Convertible Senior Notes) held by such Noteholders. On September 30, 2023, Legacy Appgate, the Company, the Representative and the Noteholders entered into an amendment to registration rights agreement (the “Subsequent Amendment to Registration Rights Agreement”), pursuant to which, the date by which Appgate was obligated to file a registration statement to register the resale of certain securities of Appgate (including Appgate’s common stock issuable upon conversion of the Convertible Senior Notes) held by such Noteholders, was extended until December 31, 2023.
Other key terms of the Convertible Senior Notes, as of September 30, 2023, were as follows:
Interest. Interest on the Convertible Senior Notes is payable at Legacy Appgate’s election in cash, in kind (“PIK Interest”), or in a combination of cash and PIK Interest. The Convertible Senior Notes bear interest at the annual rate of 8.00% with respect to interest payments made in cash and 8.50% with respect to PIK Interest, with interest payable semi-annually on February 1 and August 1 of each year. Additional notes (“PIK Convertible Senior Notes”) to be issued for PIK Interest will have the same terms and conditions as the Convertible Senior Notes.
Conversion upon Change of Control. If Legacy Appgate undergoes a Change of Control other than the Merger prior to maturity, each holder of Convertible Senior Notes shall have the option to convert all or any portion of such Convertible Senior Notes into our common stock, subject to and in accordance with the terms of the A&R Note Issuance Agreement, including the applicable conversion rate thereunder.
Conversion. Other than upon a Change of Control, prior to maturity, each holder of the Convertible Senior Notes shall have the option to convert all or any portion of such Convertible Senior Notes into our common stock, subject to and in accordance with the terms of the A&R Note Issuance Agreement, including the applicable conversion rate thereunder.
Ranking; Guarantees; Conversion Obligations. The Convertible Senior Notes are senior obligations of Legacy Appgate and unconditionally guaranteed, jointly and severally, by each of the Note Guarantors. Upon the consummation of certain events resulting in Legacy Appgate becoming a direct or indirect subsidiary of any person (including the Merger), such acquiring person, any direct or indirect parent company thereof and each subsidiary thereof (immediately prior to such event) shall unconditionally guarantee Legacy Appgate’s Obligations and assume all of Legacy Appgate’s Conversion Obligations and Change of Control Conversion Obligations and, upon such assumption, Legacy Appgate shall be released from its Conversion Obligations and Change of Control Conversion Obligations.
Repurchase Upon a Fundamental Change. Upon the occurrence of a Fundamental Change, each holder of Convertible Senior Notes shall have the option to require Legacy Appgate to repurchase for cash all or any portion of such Convertible Senior Notes, at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, subject to and in accordance with the terms of the A&R Note Issuance Agreement.
Repurchase Upon a Change of Control. Upon the occurrence of a Change of Control, each holder of Convertible Senior Notes shall have the option to require Legacy Appgate to repurchase for cash all or any portion of such Convertible Senior Notes, at a repurchase price equal to 110% of the principal amount thereof, plus accrued and unpaid interest thereon, subject to and in accordance with the terms of the A&R Note Issuance Agreement.
Covenants. The A&R Note Issuance Agreement contains restrictive covenants that, among other things, generally limit the ability of our and certain of our subsidiaries (subject to certain exceptions) to: (i) incur additional debt and issue Disqualified Stock; (ii) create liens; (iii) pay dividends, acquire shares of capital stock, or make investments; (iv) issue guarantees; (v) sell assets and (vi) enter into transactions with affiliates. The A&R Note Issuance Agreement also contains a financial covenant that requires that we maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, the Representative and the Noteholders waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. The foregoing restrictive covenants are subject to a number of important exceptions and qualifications, as set forth in the A&R Note Issuance Agreement.
Events of Default. The A&R Note Issuance Agreement provides for customary events of default which include (subject in certain cases to customary grace and cure periods), among others: (i) nonpayment of principal or interest; (ii) breach of covenants or other agreements in the A&R Note Issuance Agreement; (iii) defaults under certain other indebtedness; and (iv) certain events of bankruptcy or insolvency. Generally, if an event of default occurs and is continuing
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under the A&R Note Issuance Agreement, Magnetar or the holders of at least 25% in aggregate principal amount of the Convertible Senior Notes then outstanding may declare the principal of, premium, if any, and accrued interest on all the Convertible Senior Notes immediately due and payable.
No Registration. The Convertible Senior Notes and any Appgate common stock to be issued upon conversion of the Convertible Senior Notes have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws and may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from registration requirements. This description of the A&R Note Issuance Agreement and the Convertible Senior Notes does not constitute an offer to sell, or the solicitation of an offer to buy, any securities and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful.
If the holders have not converted the Convertible Senior Notes and the Convertible Senior Notes have not been redeemed by the maturity date, Legacy Appgate must repay the outstanding principal amount and accrued interest.
Embedded Derivative Liability
The Convertible Senior Notes contain (i) call options to be settled in cash upon the occurrence of a Change of Control (other than the Merger), (ii) put options to be settled in cash contingent upon the occurrence of a Fundamental Change or a Change of Control (other than the Merger) and (iii) a default interest rate increase of 1.5% applicable upon the occurrence of an event of default. Appgate evaluated these embedded redemption features under the guidance of ASC 815, Derivatives and Hedging, and determined that a redemption feature contained a substantial premium requiring bifurcation at fair value. However, management determined the probability of a Change of Control to be remote and as such the fair value of the embedded redemption feature has been estimated to be zero. Management also evaluated the contingent interest feature and determined the likelihood of payment to be remote. Accordingly, the fair value of the contingent interest feature was also estimated to be zero. Lastly, management evaluated the embedded conversion feature, and determined that following the closing of the Merger, this embedded feature meets the net settlement criterion under ASC 815-15-25. Consequently, the automatic conversion meets the criteria under ASC 815-15-25-1(c). For an embedded feature to be bifurcated, it must meet all three criteria in ASC 815-15-25-1. Therefore, this embedded feature requires bifurcation. Accordingly, we have recorded an embedded derivative liability representing the combined fair value of the right of the Noteholders to receive 41,918,634 shares of our common stock upon conversion of the Convertible Senior Notes at any time (the “conversion feature”). The embedded derivative liability is presented as a non-current liability in our condensed consolidated balance sheets and is adjusted to reflect fair value at each period end with changes in fair value recorded in the “Change in fair value of embedded derivative liability” financial statement line item of our condensed consolidated statements of operations. We will continue to adjust the embedded derivative liability for changes in fair value until the underlying conversion feature is exercised, redeemed, cancelled or expires.
As of September 30, 2023 and December 31, 2022, the carrying amount of this embedded derivative included in our condensed consolidated balance sheets was $10.8 million and $19.7 million, respectively. The fair value of this derivative is estimated using Level 3 inputs in the fair value hierarchy on a recurring basis. Refer to Note 4 – Financial Instruments and Fair Value Measurements. Based on the estimated value of the derivative at September 30, 2023, if the Noteholders were to exercise the conversion feature, they would not receive any excess over the aggregate principal amount on the Convertible Senior Notes.
AF Convertible Notes
On July 20, 2023, Legacy Appgate and Appgate entered into a Note Purchase Agreement (the “AF Note Purchase Agreement”) with Appgate Funding, LLC (“Appgate Funding”) and a Note Issuance Agreement (the “AF Note Issuance Agreement”) with Legacy Appgate’s wholly owned domestic subsidiaries and Appgate Funding (the AF Note Purchase Agreement and the AF Note Issuance Agreement, collectively, the “AF Note Agreements”). As disclosed in the Liquidity and Going Concern section in Note 1, the Company did not have any additional funding commitment in place and therefore entered into the AF Note Agreements with Appgate Funding. Refer to Notes 1 and 15 for further details.
Pursuant to the AF Note Agreements, on July 20, 2023, Legacy Appgate issued and sold to Appgate Funding $2.5 million aggregate principal amount of convertible notes due 2026 (the “Initial AF Convertible Notes”). In addition, pursuant to the terms of the AF Note Purchase Agreement, Appgate Funding or its affiliates has the right to purchase additional notes up to an aggregate total of $30.0 million in AF Convertible Notes on or prior to July 20, 2025 (any such additional notes, “Additional AF Convertible Notes”, and together with the Initial AF Convertible Notes, the “AF Convertible Notes”). On the date of issuance of the Initial AF Convertible Notes, the Company recorded a loss of
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$6.4 million which represents the excess of the fair value of the debt purchase option over the $2.5 million received in proceeds.
On August 21, 2023, Legacy Appgate issued and sold to Appgate Funding $2.0 million aggregate principal amount of Additional AF Convertible Notes. On September 18, 2023, Legacy Appgate issued and sold to the Purchaser an additional $1.0 million aggregate principal amount of Additional AF Convertible Notes. During the nine months ended September 30, 2023, we issued an aggregate of $5.5 million in AF Convertible Notes, all of which remained outstanding as of September 30, 2023.
The AF Convertible Notes mature on May 9, 2026, subject to extension to May 9, 2028 at the election of either Appgate Funding or the Representative under the Convertible Senior Notes. Indebtedness under the AF Convertible Notes is contractually subordinated to the Convertible Senior Notes.
Interest on the AF Convertible Notes is payable at Legacy Appgate’s election in cash, as PIK Interest, or in a combination of cash and PIK Interest; provided, that Legacy Appgate may not pay cash interest prior to July 20, 2024. The AF Convertible Notes bear interest at the annual rate of 9.50%, regardless of whether interest is paid in cash or in PIK Interest, with interest payable semi-annually on February 1 and August 1 of each year, beginning on February 1, 2024. Additional notes to be issued for PIK Interest will have the same terms and conditions as the AF Convertible Notes. At any time prior to maturity, the AF Convertible Notes are convertible, at the option of Appgate Funding, into shares of common stock of Appgate at a rate of 585.74960 shares for each $1,000 principal amount of AF Convertible Notes. In addition, Legacy Appgate’s obligations under the AF Convertible Notes and other related agreements are secured by a second priority security interest in favor of Appgate Funding in substantially all assets of Appgate, Legacy Appgate and Legacy Appgate’s domestic subsidiaries.
Other key terms of the AF Convertible Notes follow:
Guarantees. The AF Convertible Notes are unconditionally guaranteed jointly and severally by Appgate and Legacy Appgate’s domestic subsidiaries.
Conversion upon Change of Control. If Legacy Appgate undergoes a Change of Control prior to maturity, each holder of AF Convertible Notes shall have the option to convert all or any portion of such AF Convertible Notes into our common stock, subject to and in accordance with the terms of the AF Note Issuance Agreement, including the applicable conversion rate thereunder.
Conversion. Other than upon a Change of Control, prior to maturity, each holder of the AF Convertible Notes shall have the option to convert all or any portion of such AF Convertible Notes into our common stock, subject to and in accordance with the terms of the AF Note Issuance Agreement, including the applicable conversion rate thereunder.
Repurchase Upon a Fundamental Change. Upon the occurrence of a fundamental change, each holder of AF Convertible Notes shall have the option to require Legacy Appgate to repurchase for cash all or any portion of such holder’s AF Convertible Notes at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, subject to and in accordance with the terms of the AF Note Issuance Agreement.
Repurchase Upon a Change of Control. Upon the occurrence of a change of control, each holder of AF Convertible Notes shall have the option to require Legacy Appgate to repurchase for cash all or any portion of such holder’s AF Convertible Notes at a repurchase price equal to 110% of the principal amount thereof plus accrued and unpaid interest thereon, subject to and in accordance with the terms of the AF Note Issuance Agreement.
Covenants. The AF Note Issuance Agreement contains restrictive covenants that, among other things, generally limit the ability of Appgate and certain of its subsidiaries (subject to certain exceptions) to: (i) incur additional debt and issue disqualified stock; (ii) create liens; (iii) pay dividends, acquire shares of capital stock, or make investments; (iv) issue guarantees; (v) sell assets and (vi) enter into transactions with affiliates. The AF Note Issuance Agreement also contains a financial covenant that requires that Appgate maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, Appgate Funding waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. The foregoing restrictive covenants are subject to a number of important exceptions and qualifications, as set forth in the AF Note Issuance Agreement.
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Events of Default. The AF Note Issuance Agreement provides for customary events of default which include (subject in certain cases to customary grace and cure periods), among others: (i) nonpayment of principal or interest; (ii) breach of covenants or other agreements in the AF Note Issuance Agreement; (iii) defaults under certain other indebtedness; and (iv) certain events of bankruptcy or insolvency. Generally, if an event of default occurs and is continuing under the AF Note Issuance Agreement, holders of at least 25% in aggregate principal amount of the AF Convertible Notes then outstanding may declare the principal of, premium, if any, and accrued interest on all the AF Convertible Notes immediately due and payable.
No Registration. The AF Convertible Notes and any Appgate common stock to be issued upon conversion of the Convertible Senior Notes have not been registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from registration requirements. This description of the AF Note Issuance Agreement and the AF Convertible Notes does not constitute an offer to sell, or the solicitation of an offer to buy, any securities and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful.
If the holders have not converted the AF Convertible Notes and the AF Convertible Notes have not been redeemed by the maturity date, Legacy Appgate must repay the outstanding principal amount and accrued interest.
AF Registration Rights Agreement
Concurrently with the execution of the AF Note Agreements, Appgate and Appgate Funding entered into a registration rights agreement (the “AF Registration Rights Agreement”), pursuant to which, Appgate is obligated to file a registration statement by no later than October 31, 2023 to register the resale of certain securities of Appgate (including Appgate’s common stock issuable upon conversion of the AF Convertible Notes) held by Appgate Funding. On September 30, 2023, Appgate and Appgate Funding entered into a waiver to registration rights agreement pursuant to which Appgate Funding waived its right to have Appgate file such registration statement until January 31, 2024.
Revolving Credit Facility
On April 26, 2022, Legacy Appgate, Appgate, the other guarantors party thereto and SIS Holdings entered into a revolving credit agreement (the “Original Revolving Credit Agreement”) which provides for a $50.0 million unsecured, revolving credit facility (the “Revolving Credit Facility”).
On June 9, 2023, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries and SIS Holdings entered into an amended and restated revolving credit agreement (as amended, the “A&R Revolving Credit Agreement”), pursuant to which the Original Revolving Credit Agreement was amended and restated to (i) secure the obligations under the A&R Revolving Credit Agreement with a second priority security interest in substantially all assets of Legacy Appgate, Appgate and Legacy Appgate’s domestic subsidiaries, (ii) extend the maturity date of the facility from June 30, 2023 to either August 9, 2026, or, if Magnetar elects to extend the maturity date of the Convertible Senior Notes to February 9, 2028, to August 9, 2028, and (iii) modify the financial covenant contained in the Original Revolving Credit Agreement to provide that Appgate maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. Indebtedness under the A&R Revolving Credit Agreement is contractually subordinated to the Convertible Senior Notes. Interest accrues on amounts drawn under the Revolving Credit Facility at a rate of 10.00% per annum, payable in cash on the maturity date. All obligations under the A&R Revolving Credit Agreement are guaranteed by Appgate and Legacy Appgate’s domestic subsidiaries.
Concurrently with the execution of the AF Note Agreements, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries and SIS Holdings entered into an amendment to the A&R Revolving Credit Agreement, pursuant to which the A&R Revolving Credit Agreement was amended to (i) allow for the issuance of the AF Convertible Notes and the grant of a second priority security interest to Appgate Funding to secure the obligations under the AF Convertible Notes, (ii) secure the obligations under the A&R Revolving Credit Agreement with a third priority security interest in substantially all assets of Legacy Appgate, Appgate and Legacy Appgate’s domestic subsidiaries, and (iii) if Appgate Funding elects to extend the maturity date of the AF Convertible Notes to May 9, 2028, extend the maturity date of the Revolving Credit Facility to August 9, 2028. Except for the foregoing, the material terms of the A&R Revolving Credit Agreement remain unchanged.
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The A&R Revolving Credit Agreement is subject to customary terms, covenants and conditions. Those covenants include restrictions on our ability to, among other things, incur additional debt and issue disqualified stock; create liens; pay dividends, acquire shares of capital stock, or make certain investments; issue guarantees; sell certain assets and enter into transactions with affiliates. The A&R Revolving Credit Agreement also contains a financial covenant that requires that we maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, SIS Holdings waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. The foregoing restrictive covenants are subject to a number of important exceptions and qualifications, as set forth in the A&R Revolving Credit Agreement.
During the nine months ended September 30, 2023, we borrowed $3.5 million under the Revolving Credit Facility, all of which remained outstanding as of September 30, 2023, and, when aggregated with the $46.5 million previously borrowed in 2022, resulted in a total of $50.0 million outstanding as of September 30, 2023.
Note 9. Commitments and Contingencies
Letters of Credit
As of September 30, 2023 and December 31, 2022, we had $0.6 million and $1.5 million, respectively, in irrevocable stand-by letters of credit outstanding, which were issued primarily to guarantee a subsidiary’s performance under contracts with customers and as a guarantee under the Company’s corporate credit card line. As of September 30, 2023, no amounts had been drawn on any of these irrevocable stand-by letters of credit.
Non-cancelable Purchase Obligations
In the normal course of business, we enter into non-cancelable purchase commitments with various parties to purchase products and services, such as technology equipment, subscription-based cloud service arrangements, corporate events and consulting services. As of September 30, 2023, we had outstanding non-cancelable purchase obligations with terms of 12 months or longer aggregating $5.1 million.
Legal Contingencies
We may be subject to legal proceedings and litigation arising from time to time. We record a liability when we believe that it is both probable that a loss has been incurred and the amount can be reasonably estimated. We periodically evaluate developments in our legal matters that could affect the amount of liability that we accrue, if any, and adjust, as appropriate. Until the final resolution of any such matter for which we may be required to record a liability, there may be a loss exposure in excess of the liability recorded and such amount could be significant. We expense legal fees as incurred. As of September 30, 2023 and December 31, 2022, the Company was not a party to, and the Company is not currently party to, any litigation that would have a material adverse effect on the Company’s condensed consolidated financial statements.
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Note 10. Profit Interest Units of SIS Holdings LP
SIS Holdings adopted the SIS Holdings LP Class B Unit Plan (the “SIS Holdings Plan”) in May 2017. All outstanding awards, including, but not limited to, awards to employees of Appgate (or a subsidiary thereof), under the SIS Holdings Plan were issued in 2017, 2018 and 2019. Equity-based compensation costs were as follows for the three and nine months ended September 30, 2023 and 2022 and are included in the following captions in the condensed consolidated statements of operations (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Cost of revenue | $ | — | $ | — | $ | — | $ | 62 | |||||||||||||||
| Sales and marketing | — | 59 | 42 | 221 | |||||||||||||||||||
Total | $ | — | $ | 59 | $ | 42 | $ | 283 | |||||||||||||||
No related income tax benefit was recognized as of September 30, 2023 or December 31, 2022.
As of September 30, 2023, all Class B units had vested under the SIS Holdings Plan.
Effective July 29, 2021, the SIS Holdings Plan was amended to the extent required such that any distribution by SIS Holdings to its equity holders that is attributable to amounts received by SIS Holdings in respect of its equity interests in Cyxtera or Legacy Appgate, in each case upon the consummation of the transactions contemplated by Cyxtera’s merger with Starboard Value Acquisition Corp. in July 2021 (the “Cyxtera Transaction” and, together with the Merger, the “Transactions”) or the agreement and plan of reorganization, dated February 8, 2021 entered into by and among Newtown Lane, Merger Sub and Legacy Appgate, respectively, shall be deemed to have been made at an amount equal to the value of the Cyxtera common stock or Legacy Appgate common stock, as applicable, in each such Transaction.
Note 11. Appgate, Inc. 2021 Incentive Compensation Plan
On October 12, 2021, our Board of Directors adopted the Appgate, Inc. 2021 Incentive Compensation Plan (the “2021 Plan”). The purpose of the 2021 Plan is to assist Appgate and its related entities in attracting, motivating, retaining and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services to Appgate or its related entities by enabling such persons to acquire or increase a proprietary interest in the Company in order to strengthen the mutuality of interests between such persons and the Company’s shareholders, and providing such persons with performance incentives to expend their maximum efforts in the creation of shareholder value.
During the three and nine months ended September 30, 2023, our Board of Directors (or a designee thereof) approved certain grants of long-term incentive awards to executives, employees, officers and consultants of the Company (or a subsidiary thereof). To date, grants under the 2021 Plan have been given as restricted stock units (“RSUs”) and phantom stock units (“PSUs”). Awards of RSUs have been given as time-based awards and/or performance-based awards under the 2021 Plan. All PSUs have been given as performance-based awards. The vesting of the performance-based awards is dependent upon certain conditions, including service and/or performance conditions as defined in the grants. Our Executive Chairman and Chairman of our Board of Directors received a time-based award, the Chairman Award, which entitled him to receive a specific number of shares of the Company’s common stock on the vesting date. Such Chairman Award originally vested no later than December 31, 2022 but was cancelled on December 23, 2022.
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The following table summarizes nonvested RSUs and PSUs activity for the three and nine months ended September 30, 2023:
| RSUs | PSUs | ||||||||||||||||||||||||||||||||||
| Time-based | Performance-based | Performance-based | |||||||||||||||||||||||||||||||||
| Shares | Weighted-average grant date fair value | Shares | Weighted-average grant date fair value | Shares | Weighted-average grant date fair value | ||||||||||||||||||||||||||||||
| Nonvested at December 31, 2022 | — | $ | — | 9,210,180 | $ | 13.29 | 49,878 | $ | 13.07 | ||||||||||||||||||||||||||
| Granted | — | — | 1,000,000 | 1.85 | — | — | |||||||||||||||||||||||||||||
| Vested | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | — | (1,733,377) | 10.02 | (2,293) | 14.39 | |||||||||||||||||||||||||||||
| Nonvested at March 31, 2023 | — | — | 8,476,803 | 11.12 | 47,585 | 13.25 | |||||||||||||||||||||||||||||
| Granted | — | — | 1,318 | 1.70 | — | — | |||||||||||||||||||||||||||||
| Vested | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | — | (290,145) | 8.96 | (495) | 11.99 | |||||||||||||||||||||||||||||
| Nonvested at June 30, 2023 | — | — | 8,187,976 | 8.59 | 47,090 | 12.87 | |||||||||||||||||||||||||||||
| Granted | — | — | 145,000 | 1.05 | — | — | |||||||||||||||||||||||||||||
| Vested | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | — | (47,743) | 10.03 | (1,155) | 12.56 | |||||||||||||||||||||||||||||
| Nonvested at September 30, 2023 | — | $ | — | 8,285,233 | $ | 8.45 | 45,935 | $ | 12.88 | ||||||||||||||||||||||||||
| Nonvested at December 31, 2021 | — | $ | — | — | $ | — | — | $ | — | ||||||||||||||||||||||||||
| Granted | 1,102,217 | 13.00 | 4,436,129 | 13.14 | 58,519 | 13.17 | |||||||||||||||||||||||||||||
| Vested | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | — | (107,748) | 13.00 | (1,433) | 13.00 | |||||||||||||||||||||||||||||
| Nonvested at March 31, 2022 | 1,102,217 | 13.00 | 4,328,381 | 13.14 | 57,086 | 13.17 | |||||||||||||||||||||||||||||
| Granted | — | — | 192,869 | 12.81 | 5,145 | 11.14 | |||||||||||||||||||||||||||||
| Vested | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | — | (97,974) | 13.15 | (4,661) | 12.86 | |||||||||||||||||||||||||||||
| Nonvested at June 30, 2022 | 1,102,217 | 13.00 | 4,423,276 | 13.13 | 57,570 | 13.02 | |||||||||||||||||||||||||||||
| Granted | — | 0.00 | 5,455,744 | 7.21 | 528 | 7.50 | |||||||||||||||||||||||||||||
| Vested | — | 0.00 | — | — | — | — | |||||||||||||||||||||||||||||
| Forfeited | — | 0.00 | (598,046) | 13.58 | (5,420) | 13.55 | |||||||||||||||||||||||||||||
| Nonvested at September 30, 2022 | 1,102,217 | $ | 13.00 | 9,280,974 | $ | 9.62 | 52,678 | $ | 12.91 | ||||||||||||||||||||||||||
For the three and nine months ended September 30, 2022, we recognized $3.6 million and $10.7 million, respectively, of equity-based compensation expense related to the 2021 Plan (compared to nil for the three and nine months ended September 30, 2023). This amount is included in general and administrative expenses in the unaudited condensed consolidated statement of operations.
Note 12. 401(k) Savings Plan
Effective January 1, 2021, Legacy Appgate’s U.S. employees became eligible to participate in the Appgate Cybersecurity, Inc. 401(k) Savings Plan (the “401(k) Plan”), a defined contribution benefit plan sponsored by Legacy Appgate. Under the 401(k) Plan, the Company (or a subsidiary thereof) makes matching contributions equal to 100% of an employee’s salary deferral that does not exceed 1% of the employee’s compensation plus 50% of the salary deferral between 1% and 6% of the employee’s compensation.
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Matching contributions to the 401(k) Plan were as follows for the three and nine months ended September 30, 2023 and 2022 and are included in the following captions in the condensed consolidated statements of operations (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Cost of revenue | $ | 51 | $ | 89 | $ | 120 | $ | 308 | |||||||||||||||
| Sales and marketing | 107 | 133 | 246 | 671 | |||||||||||||||||||
| Research and development | 23 | 170 | 50 | 552 | |||||||||||||||||||
| General and administrative | 41 | 55 | 86 | 226 | |||||||||||||||||||
Total | $ | 222 | $ | 447 | $ | 502 | $ | 1,757 | |||||||||||||||
Note 13. Income Taxes
Effective tax rates for interim periods are based upon the Company’s estimate of the annual effective tax rate. Effective tax rates vary based upon an estimate of taxable earnings and on the mix of taxable earnings in the various states and countries in which we operate. Changes in the annual allocation and apportionment of the Company’s activity amongst these jurisdictions result in changes to the effective rate.
Income tax benefit (expense) for the three and nine months ended September 30, 2023 was $0.1 million and $(1.1) million, respectively. Income tax benefit (expense) for the three and nine months ended September 30, 2023 was different than the amount expected at the statutory federal income tax rate primarily due to changes in the valuation allowance, the loss on extinguishment of debt and the change in the fair value of our embedded derivative liability, both of which are not tax deductible, state taxes, and foreign withholding taxes. The Company has determined that the tax effects of the change in the fair value of its embedded derivative liability cannot reliably be estimated. Accordingly, the discrete-period computation method has been used and the annual effective tax rate may change significantly once included.
Income tax expense for the three and nine months ended September 30, 2022 was $0.8 million and $2.0 million, respectively. Income tax expense for the three and nine months ended September 30, 2022 was different than the amount expected at the statutory federal income tax rate primarily due to foreign withholding taxes, changes in the valuation allowance, the change in the fair value of our embedded derivative liability that is not tax deductible, and state taxes. The Company has determined that the tax effects of the change in the fair value of its embedded derivative liability cannot reliably be estimated. Accordingly, the discrete-period computation method has been used and the annual effective tax rate may change significantly once included.
Note 14. Segment and Geographic Information
Our chief operating decision maker is our chief executive officer, who reviews financial information presented on a consolidated basis for the purposes of allocating resources and evaluating financial performance. Accordingly, management has determined that we operate as one operating and reportable segment.
Refer to Note 3 – Revenue, for information on revenue by geography.
Note 15. Related Party Transactions
AF Convertible Notes with Appgate Funding
On July 20, 2023, Legacy Appgate and Appgate entered into the AF Note Agreements with Appgate Funding, an entity beneficially owned by Manuel D. Medina, our Executive Chairman and Chairman of our Board of Directors. See Note 8 for more information regarding the entry into the AF Note Agreements.
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Revolving Credit Facility with SIS Holdings
On April 26, 2022, Legacy Appgate, Appgate, the other guarantors party thereto and SIS Holdings, our controlling stockholder, owning approximately 89% of our issued and outstanding common stock, entered into the Original Revolving Credit Agreement. On June 9, 2023, the parties entered into the A&R Revolving Credit Agreement, which was further amended on July 20, 2023. See Note 8 for more information regarding the entry into the Original Revolving Credit Agreement and the A&R Revolving Credit Agreement.
Other Transactions with SIS Holdings
During the three and nine months ended September 30, 2023, SIS Holdings paid certain expenditures on behalf of Appgate. As of September 30, 2023, SIS Holdings has paid $0.9 million on behalf of Appgate and the amount is included within accounts payable in the condensed consolidated balance sheet.
Commercial Related Party Transactions with Cyxtera
Three current members of our Board of Directors also, as of November 2, 2023, served on the board of directors of Cyxtera. Legacy Appgate maintains a number of ordinary course commercial relationships, both as a customer and service provider, with Cyxtera.
For instance, Cyxtera purchases certain cybersecurity products and services from Legacy Appgate, including licenses for Legacy Appgate cybersecurity software and training. During each of the three and nine months ended September 30, 2023 and 2022, Legacy Appgate charged Cyxtera (and/or its affiliates) $0.1 million (all of which was charged during the three months ended September 30, 2023 and 2022, respectively), and recognized revenue in the same amounts from its contract with Cyxtera (and/or its affiliates). There were no open receivables from Cyxtera (and/or its subsidiaries) as of September 30, 2023. As of December 31, 2022, Legacy Appgate had receivables from Cyxtera (and/or its subsidiaries) for $4 thousand under these agreements.
Cyxtera also provides Legacy Appgate certain data center co-location and CXD services. During the three and nine months ended September 30, 2023, Cyxtera charged Legacy Appgate $0.1 million and $0.2 million, respectively, for those services. During the three and nine months ended September 30, 2022, Cyxtera charged Legacy Appgate $0.1 million and $0.2 million, respectively, for those services. As of each of September 30, 2023 and December 31, 2022, Legacy Appgate had payables to Cyxtera for $0.1 million under these agreements.
Transactions with Director Affiliated Companies
Two current members of our Board of Directors, as of November 2, 2023, served on the board of directors of Chewy, Inc. (“Chewy”), an American online retailer of pet food and other pet-related products. During the three and nine months ended September 30, 2023, Legacy Appgate charged Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy) $0.0 million and $0.5 million, respectively, and recognized revenue of $0.0 million and $0.4 million, respectively, under contracts with Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy). During the three and nine months ended September 30, 2022, Legacy Appgate charged Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy) $0.1 million and $0.5 million, respectively, and recognized revenue of $0.2 million and $0.5 million, respectively, under contracts with Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy). As of September 30, 2023, Legacy Appgate had receivables from Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy) for $9 thousand under these agreements. There were no open receivables from Chewy (or the channel partner reselling certain cybersecurity products provided to Chewy) as of December 31, 2022.
One current member of our Board of Directors, as of November 2, 2023, served on the board of directors of PetSmart, Inc. (“PetSmart”). During the three and nine months ended September 30, 2023, Legacy Appgate charged PetSmart $0.0 million and $0.1 million, respectively, and recognized revenue in the same amounts from its contract with PetSmart. During the three and nine months ended September 30, 2022, Legacy Appgate charged PetSmart $0.0 million and $0.1 million, respectively, and recognized revenue in the same amounts from its contract with PetSmart. There were no open receivables from PetSmart as of September 30, 2023 or December 31, 2022.
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Other Related Party Transactions
CenturyLink Communications, LLC (“CenturyLink”), an approximate 10.4% owner of SIS Holdings as of September 30, 2023 and, as a result, an indirect beneficial owner of the Company, is a reseller of certain of our products and services. During the three and nine months ended September 30, 2023, Legacy Appgate charged CenturyLink $0.5 million and $0.9 million, respectively, under contracts for certain cybersecurity products provided by Legacy Appgate to CenturyLink for resale by CenturyLink to end users (amounts for the comparative periods of 2022 were $0.2 million and $0.8 million, respectively). During the three and nine months ended September 30, 2023, Legacy Appgate recognized $0.4 million and $1.0 million, respectively, as revenue from these contracts (amounts for the comparative periods of 2022 were $0.3 million and $0.7 million, respectively). As of September 30, 2023 and December 31, 2022, Legacy Appgate had receivables from CenturyLink for $0.3 million and $0.1 million, respectively, under these agreements.
Note 16. Subsequent Events
Appgate, Inc. 2021 Incentive Compensation Plan
As of November 8, 2023, there were no time-based RSUs, 8,293,141 performance-based RSUs, and 45,935 performance-based PSUs issued and outstanding to participants under the 2021 Plan, which performance-based RSUs and performance-based PSUs were subject to certain vesting criteria. As of November 8, 2023, none of the awards had vested.
AF Convertible Note Issuance
On October 11, 2023, October 19, 2023 and October 30, 2023, Legacy Appgate issued and sold to Appgate Funding an additional $999,000, $500,000 and $1,500,000, respectively, aggregate principal amount of Additional AF Convertible Notes. As of November 10, 2023, Legacy Appgate has issued an aggregate of $8.499 million of AF Convertible Notes to Appgate Funding, which all remains outstanding as of November 10, 2023.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis provides information we believe is relevant to an assessment and understanding of our results of operations, financial condition, liquidity and cash flows for the periods presented. This discussion should be read in conjunction with (a) our unaudited condensed consolidated financial statements and related notes contained elsewhere in Part I, Item 1, “Financial Statements” of this Quarterly Report, and (b) Part I, Item 1A “Risk Factors”, Part II, Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our audited consolidated financial statements and related notes in our 2022 Annual Report. As discussed in the section above titled “Cautionary Statement Regarding Forward-Looking Statements,” the following discussion contains forward-looking statements that are based upon our current expectations, including with respect to our future revenues and operating results. Our actual results may differ materially from those anticipated in such forward-looking statements as a result of various factors. Factors that could cause or contribute to such differences include, but are not limited to, those identified below, and those discussed in the section titled “Risk Factors” included under Part II, Item 1A below and included under Part I, Item 1A in our 2022 Annual Report.
We operate on a calendar year basis. Capitalized terms used in this section and not defined herein have the respective meanings given to such terms elsewhere in this Quarterly Report. Numbers and percentages presented throughout this discussion and analysis may not always add up to equivalent totals and/or to 100% due to rounding.
Overview of Our Business
We believe we are defining a new category of Zero Trust access for enterprises and governments. Our Zero Trust platform is designed to protect against increasingly damaging breaches through innovative, identity-centric, context-aware solutions. Our pure-play focus on Zero Trust has enabled us to deliver the highest ranked current Zero Trust Network Access offering as determined by the Forrester New Wave™: Zero Trust Network Access, Q3 2021.
This new Zero Trust paradigm is needed today because enterprises are undergoing digital transformation as they seek to automate operations, generate new revenue streams, transition business models and deliver a seamless customer experience. Simultaneously, the number and sophistication of cyberattacks have increased dramatically, as has their costs and frequency. This combination of more vulnerable networks and more malicious activity has created a cybersecurity crisis, changing the threat landscape organizations face. As a result, enterprises require security access solutions that proactively ensure the right user has authorized access to the right resources at the right time.
We believe that our Zero Trust solutions secure an enterprise’s exponentially increased attack surface, which occurs as a result of their digital transformation journey. We also offer digital threat protection and risk-based authentication tools to identify and eliminate attacks before they occur, across social media, phishing attacks, bogus websites, and malicious mobile apps.
Our revenue increased from $10.6 million for the three months ended September 30, 2022 to $12.6 million for the three months ended September 30, 2023, an increase of 19%, and increased from $32.8 million for the nine months ended September 30, 2022 to $34.1 million for the nine months ended September 30, 2023, an increase of 4%.
We sell our solutions primarily through a recurring revenue license model or subscription, and we employ a ‘land and expand’ strategy to generate incremental revenue through the addition of new users and the sale of additional products. Our annual recurring revenue (“ARR”) was $36.2 million and $34.1 million at September 30, 2023 and 2022, respectively. Our dollar-based net retention rates were 97% and 94% at September 30, 2023 and 2022, respectively. Our number of customers generating over $100,000 ARR was 71 and 64 at September 30, 2023 and 2022, respectively, driven by elevated C-suite and board level dialogue and customer prioritization of a Zero Trust posture. See “— Key Business Metrics” for additional information regarding ARR and dollar-based net retention rate.
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Factors Affecting Our Business
Reductions in Force
On July 25, 2022, we substantially completed a reduction in force (the “July Reduction”) of approximately 22% of our workforce. In connection with the July Reduction, we incurred approximately $1.8 million of costs and expenses, primarily comprising severance and termination-related costs, which we recognized in the third quarter of 2022.
On February 2, 2023, we substantially completed a reduction in force (the “February Reduction” and together with the July Reduction, the “Reductions”) of approximately 8% of our workforce. In connection with the February Reduction, we incurred approximately $0.5 million of costs and expenses, primarily comprising severance and termination-related costs, which we recognized in the first quarter of 2023.
A&R Note Issuance Agreement and PIK Convertible Senior Notes
On June 9, 2023, we entered into the A&R Note Issuance Agreement, which among other things, increased the interest rate under the Convertible Senior Notes (as defined herein). See Note 8 of Part I, Item 1, “Financial Statements” of this Quarterly Report for more information on the A&R Note Issuance Agreement and Convertible Senior Notes. We expect our interest expense to increase in subsequent periods as a result of the related increase in interest rate following the entering into of the A&R Note Issuance Agreement. In addition, to the extent we continue to issue PIK Convertible Senior Notes (as defined below) in an effort to preserve cash, we expect interest expense to increase in subsequent periods given the higher interest rate related to PIK Convertible Senior Notes.
AF Convertible Notes
On July 20, 2023, we entered into the AF Note Agreements. See Note 8 of Part I, Item I, “Financial Statements” of this Quarterly Report for more information on the AF Convertible Notes. We expect our interest expense to increase in subsequent periods as a result of the interest born under the AF Convertible Notes.
Key Business Metrics
Our management reviews a number of key performance indicators, each as described below, to evaluate our business, measure our performance, identify trends affecting our business, formulate business plans and make strategic decisions.
Annual Recurring Revenue
ARR is a performance indicator that management believes provides more visibility into the growth of our revenue generated by recurring business. Our management believes ARR is a key metric to measure our business because it is driven by our ability to acquire new subscription customers and to maintain and expand our relationship with existing subscription customers. ARR also mitigates fluctuations due to seasonality, contract term, sales mix, and revenue recognition timing resulting from revenue recognition methodologies under GAAP. We define ARR as the annualized value of SaaS, subscription, and term-based license and maintenance contracts from our recurring software products in effect at the end of a given period. ARR should be viewed independently of revenue and deferred revenue as it is an operating metric and is not intended to be combined with or to replace GAAP revenue or deferred revenue, as they can be impacted by contract start and end dates and renewal rates. ARR is not intended to be a replacement or forecast of revenue or deferred revenue.
The table below sets forth our ARR as of the end of the periods indicated below (in thousands):
| Nine Months Ended September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| ARR | $ | 36,158 | $ | 34,057 | |||||||
| Change $ | $ | 2,101 | |||||||||
| Change % | 6 | % | |||||||||
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Total Customers and Number of Customers with ARR above $100,000
Our management believes that our ability to increase our number of customers is an indicator of our market penetration, the growth of our business, and our potential future business opportunities. Over time, larger customers have constituted a greater share of our total revenue, which has contributed to an increase in ARR. Our management believes there are significant upsell and cross-sell opportunities within our customer base by expanding the number of use cases. Historically, we have consistently increased our number of customers and customers with ARR above $100,000 and expect this trend to continue as a result of the growing demand for our cybersecurity solutions. Our management defines a customer as a distinct organization that has entered into a distinct agreement to access our software products for which the term has not ended or with which we are negotiating a renewal contract or the purchase of our professional services.
The below table sets forth our total customers and customers with ARR above $100,000 as of the end of the periods indicated below:
| September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Total customers | 665 | 624 | |||||||||
| Customers with ARR above $100,000 | 71 | 64 | |||||||||
Dollar-Based Net Retention Rate
Our management believes that our ability to retain and grow the ARR generated from our existing subscription customers is an indicator of the long-term value of our subscription customer relationships and future business opportunities. We track our performance in this area by measuring our dollar-based net retention rate, which reflects customer renewals, expansion, contraction, and customer attrition within our ARR base. We calculate dollar-based net retention rate by dividing the numerator by the denominator as set forth below:
• Denominator: As of the end of a reporting period, ARR as of the last day of the comparable reporting period in the prior year.
• Numerator: ARR for that same cohort of customers as of the end of the reporting period in the current year, including any expansion and net of any contraction and customer attrition over the trailing 12 months, excluding ARR from new subscription customers in the current period.
Our dollar-based net retention rate was 97% and 94% at September 30, 2023 and 2022, respectively.
Key Components of Results of Operations
Revenue
We recognize revenue under ASC 606, Revenue from Contracts with Customers (“ASC 606”). Under ASC 606, we recognize revenue when our customers obtain control of goods or services in an amount that reflects the consideration that we expect to receive in exchange for those goods or services.
We primarily sell our software through on-premise term-based license agreements, perpetual license agreements and SaaS subscriptions, which allow our customers to use our SaaS services without taking possession of the software. Our products offer substantially the same functionality whether our customers receive them through a perpetual license, a term-based license or a SaaS arrangement. Our agreements with customers for software licenses may include maintenance contracts and may also include professional services contracts. Maintenance revenues consist of fees for providing unspecified software updates and technical support for our products for a specified term, which is typically one to three years. We offer a portfolio of professional services and extended support contract options to assist our customers with integration, optimization, training and ongoing advanced technical support. We also generate revenue from threat advisory services, including penetration testing, application assessments, vulnerability analysis, reverse engineering, architecture review and source code review.
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Subscription. Our term-based license arrangements that do not contain variable consideration include both upfront revenue recognition when the distinct license is made available to the customer as well as revenue recognized ratably over the contract period for support and maintenance based on the stand-ready nature of these elements. Revenue on our SaaS arrangements that do not contain variable consideration, is recognized ratably over the contract period as we satisfy the performance obligation, beginning on the date the service is made available to our customers.
Subscription revenue represented approximately 88% and 85% of our revenue for the three and nine months ended September 30, 2023, respectively, and approximately 78% and 81% of our revenue for the three and nine months ended September 30, 2022, respectively. We expect that a majority of our revenue will continue to be from subscriptions for the foreseeable future, and we expect that subscription revenue as a percentage of total revenue will increase over time. Changes in period-over-period subscription revenue growth are primarily impacted by the following factors:
• the type of new and renewed subscriptions (i.e., term-based or SaaS); and
• the duration of new and renewed term-based subscriptions.
While the number of new and increased subscriptions during a period impacts our subscription revenue growth, the type and duration of those subscriptions have a significantly greater impact on the amount and timing of revenue recognized in a period. Subscription revenue from the software license components of term-based licenses is generally recognized at the beginning of the subscription term, while subscription revenue from SaaS and support and maintenance is generally recognized ratably over the subscription term. As a result, our revenue may fluctuate due to the timing and type of the software license components of term-based licensing transactions. In addition, keeping other factors constant, when the percentage of subscription term-based licenses to total subscriptions sold or renewed in a period increases relative to the prior period, revenue growth will generally increase. Conversely, when the percentage of subscription SaaS and support and maintenance to total subscriptions sold or renewed in a period increases, revenue growth will generally decrease, as compared to a prior period. Additionally, a multi-year subscription term-based license will generally result in greater revenue recognition up front relative to a one-year subscription term-based license. Therefore, keeping other factors constant, revenue growth will generally also trend higher in a period where the percentage of multi-year subscription term-based licenses to total subscription term-based licenses increases.
Perpetual licenses. Our perpetual license arrangements generally include both upfront revenue recognition when the distinct license is made available to the customer as well as revenue recognized ratably over the contract period for support and maintenance based on the stand-ready nature of these elements. Revenue related to support and maintenance is included as part of subscription revenue. We expect that perpetual license revenue as a percentage of total revenue will decrease over time.
For the three and nine months ended September 30, 2023, approximately 1% and 2%, respectively, of our revenue was from perpetual licenses. For the three and nine months ended September 30, 2022, approximately 7% and 4%, respectively, of our revenue was from perpetual licenses.
Services and other. Our services-related performance obligations predominantly relate to the provision of consulting and threat advisory services, and to a lesser extent, training and software installation. Software installation services are distinct from subscriptions and do not result in significant customization of the software. Our services are generally priced on a time and materials basis, which is generally invoiced monthly and for which revenue is recognized as the services are performed. Revenue from our training services and sponsorship fees is recognized on the date the services are complete. Over time, we expect services revenue to remain relatively stable as a percentage of total revenue.
For the three and nine months ended September 30, 2023, approximately 12% and 13%, respectively, of our revenue was from services and other. For the three and nine months ended September 30, 2022, approximately 15% and 16%, respectively, of our revenue was from services and other.
Concentrations. The following table summarizes revenue (in thousands) by country and main geography in which we operate, which are the United States and Canada (“US&C”), Latin America (“LATAM”), Europe, the Middle East and Africa (“EMEA”), and Asia Pacific (“APAC”), based on the billing address of customers (including, for the avoidance of doubt, resellers and managed service providers) who have contracted with us. As with our aggregate revenues, as described above, within each geography described below we expect that subscription revenue as a percentage of total revenue in each such geography will increase over time. While there may be shifts in individual countries representing 10% or more of our
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total revenue from time to time, we expect that we will continue to derive the vast majority of our revenue from the United States, which is our country of domicile. We do not currently anticipate significant shifts in revenues by main geography.
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| Revenues by country (a): | |||||||||||||||||||||||
| United States | $ | 7,523 | $ | 5,337 | $ | 18,503 | $ | 16,898 | |||||||||||||||
| Ecuador | 571 | 1,354 | 2,082 | 2,719 | |||||||||||||||||||
| Colombia | 675 | 1,217 | 2,514 | 4,126 | |||||||||||||||||||
| Other | 3,815 | 2,694 | 10,983 | 9,066 | |||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
| Revenues by main geography: | |||||||||||||||||||||||
| US&C | $ | 7,737 | $ | 5,528 | $ | 20,274 | $ | 18,515 | |||||||||||||||
| LATAM | 3,063 | 3,852 | 8,973 | 10,393 | |||||||||||||||||||
| EMEA | 1,095 | 713 | 3,056 | 2,238 | |||||||||||||||||||
| APAC | 689 | 509 | 1,779 | 1,663 | |||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
(a) Only the United States, Ecuador and Colombia represented 10% or more of our total revenue in any of the periods presented.
No single customer (including, for the avoidance of doubt, resellers and managed service providers) accounted for 10% or more of our total revenue in any of the periods presented.
Cost of Revenue
Cost of revenue consists primarily of employee compensation costs for employees associated with supporting our licensing arrangements and service arrangements, certain third-party expenses and the amortization of developed technology assets. Employee compensation and related costs include cash compensation and benefits to employees, equity-based compensation, costs of third-party contractors and associated overhead costs. Third-party expenses consist of cloud infrastructure costs, other expenses directly associated with our customer support, including, in limited instances, equipment purchased for resale. We expect cost of revenue to increase in absolute dollars.
Gross Profit and Gross Margin
Gross profit, or revenue less cost of revenue, and gross margin, or gross profit as a percentage of revenue, have been and will continue to be affected by various factors, including the timing of our acquisition of new customers and renewals of and follow-on sales to existing customers, the average sales price of our services, mix of services offered in our solutions, including new product introductions, the extent to which we expand our customer support and operations and the extent to which we can increase the efficiency of our technology and infrastructure through technological improvements. We currently expect gross profit to increase in absolute dollars and gross margin to increase slightly over the long term, although our gross profit and gross margin could fluctuate from period to period depending on the interplay of all the above factors.
Operating Expenses
Our operating expenses consist of sales and marketing, research and development, and general and administrative expenses. Personnel costs are the most significant component of operating expenses and consist of salaries, benefits, bonuses, equity-based compensation expense and, with respect to sales and marketing expenses, sales commissions that are recognized as expenses. Operating expenses also include overhead costs for facilities, IT, depreciation expense and amortization expense.
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Sales and Marketing
Sales and marketing expenses consist primarily of employee compensation and related expenses, including salaries, bonuses and benefits for our sales and marketing employees, sales commissions that are recognized as expenses over the period of benefit, equity-based compensation expense, marketing and channel programs, travel and entertainment expenses, expenses for conferences and events and allocated overhead costs. We capitalize our sales commissions and associated payroll taxes and recognize them as expenses over the estimated period of benefit. The amount recognized in our sales and marketing expenses reflects the amortization of cost previously deferred as attributable to each period presented in our consolidated financial statements, as described in Note 1 — Business and Summary of Significant Accounting Policies to our audited consolidated financial statements included in Part II, Item 8 of our 2022 Annual Report - “Financial Statements and Supplementary Data”. Advertising expenses are charged to sales and marketing expense in the consolidated statements of operations as incurred.
We intend to continue to invest in our sales and marketing organization to drive additional revenue, further penetrate the market and expand our global customer base. As a result, we expect our sales and marketing expenses to be our largest operating expense category for the foreseeable future. In particular, we plan to continue to invest in our sales force, broadening our brand awareness and expanding and deepening our channel partner relationships. However, we currently expect sales and marketing expenses to decrease as a percentage of our revenue over the long term, although our sales and marketing expenses may fluctuate as a percentage of revenue from period to period due to the timing and extent of these expenses.
Research and Development
Research and development costs to develop software to be sold, leased or marketed are expensed as incurred up to the point of technological feasibility for the related software product. We have not capitalized development costs for software to be sold, leased or marketed to date, as the software development process is essentially completed concurrent with the establishment of technological feasibility. As such, these costs are expensed as incurred and recognized in research and development costs in the consolidated statements of operations.
Software developed for internal use, with no substantive plans to market such software at the time of development, is capitalized and included in property and equipment, net in the consolidated balance sheets. Costs incurred during the preliminary planning and evaluation and post implementation stages of the project are expensed as incurred. Costs incurred during the application development stage of the project are capitalized.
Our research and development expenses support our efforts to add new features to our existing offerings and to ensure the reliability, availability and scalability of our solutions. Our research and development teams employ software engineers in the design and the related development, testing, certification and support of our solutions. Accordingly, the majority of our research and development expenses result from employee-related costs, including salaries, bonuses and benefits and costs associated with technology tools used by our engineers.
We intend to continue to make investments in research and development to extend the features of our existing offerings and technology capabilities.
General and Administrative
General and administrative expenses consist primarily of employee-related costs, including salaries and bonuses, equity-based compensation expense and employee benefit costs for our finance, legal, human resources and administrative personnel, as well as professional fees for external legal services, accounting and other related consulting services. Litigation-related expenses, if any, include professional fees and related costs incurred by us in defending or settling significant claims that our management deems not to be in the ordinary course of our business and, if applicable, accruals related to estimated losses in connection with these claims. We expect that our general and administrative expenses will increase in absolute dollars for the foreseeable future, as we incur increased compliance costs and other related costs necessary to operate as a public company. However, we currently expect our general and administrative expenses to decrease as a percentage of revenue over the long term, although our general and administrative expenses may fluctuate as a percentage of revenue from period to period due to the timing and extent of these expenses.
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Transaction Costs
In June 2022, we expensed $2.1 million of transaction costs in connection with the contemplated registered offering of equity securities.
Depreciation and Amortization
Acquired intangible assets consist of identifiable intangible assets, including trademarks and trade names and customer relationships resulting from business combinations. Acquired finite-lived intangible assets are initially recorded at fair value and are amortized on a straight-line basis over their estimated useful lives. Amortization expense for trademarks and tradenames and customer relationships is recorded primarily within depreciation and amortization in the condensed consolidated statements of operations.
Loss on Abandonment of Assets
We stopped offering our Compliance Sheriff product and, as a result, recorded a loss on abandonment of the related intangible assets of $1.7 million in the nine months ended September 30, 2022 (all during the first quarter of 2022).
Change in Fair Value of Debt Purchase Options
We have recognized debt purchase option liabilities associated to the Convertible Senior Notes and the AF Convertible Notes. The liabilities are recognized at fair value and are subsequently remeasured at their estimated fair value on a recurring basis at the end of each reporting period, with changes in estimated fair value recognized as change in fair value of debt purchase options in our condensed consolidated statements of operations.
Change in Fair Value of Embedded Derivative Liability
We have recognized an embedded derivative liability associated to the Convertible Senior Notes. The embedded derivative is recognized at fair value and is subsequently remeasured at its estimated fair value on a recurring basis at the end of each reporting period, with changes in estimated fair value recognized as change in fair value of embedded derivative liability in our condensed consolidated statements of operations.
Loss on Extinguishment of Debt
We have recognized a loss on extinguishment of debt in connection with the June 9, 2023 amendment and restatement of the Convertible Senior Notes. For more information regarding the A&R Note Issuance Agreement and Convertible Senior Notes, see Note 8 to the unaudited condensed consolidated financial statements.
Loss on Issuance of Debt
We have recognized a loss on issuance of debt in connection with the July 20, 2023 issuance of the AF Convertible Notes. For more information regarding the AF Note Issuance Agreement and AF Convertible Notes, see Note 8 to the unaudited condensed consolidated financial statements.
Interest Expense
Interest expense consists primarily of interest incurred on our obligations under the Convertible Senior Notes, the AF Convertible Notes and the Revolving Credit Facility. See “Liquidity and Capital Resources” below.
Income Tax
Our income taxes, as presented in the condensed consolidated financial statements, may not be indicative of the income taxes we will generate in the future. In jurisdictions where Legacy Appgate was included in the tax returns filed by Cyxtera, any income taxes payable/receivable resulting from the related income tax provisions have been reflected in the balance sheets of each separate entity’s provision.
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Benefit (provision) for income taxes consists primarily of income taxes related to U.S. federal and state income taxes and income taxes in foreign jurisdictions in which we conduct business.
Results of Operations
The following table sets forth our consolidated results of operations for the periods presented (in thousands). The period-to-period comparisons of our historical results are not necessarily indicative of the results that may be expected in the future. The results of operations data have been derived from our unaudited condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, “Financial Statements”.
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| Three Months Ended September 30, | Variance % | Nine Months Ended September 30, | Variance % | ||||||||||||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||||||||||||||
| Revenue | $ | 12,584 | $ | 10,602 | 19 | % | $ | 34,082 | $ | 32,809 | 4 | % | |||||||||||||||||||||||
| Cost of revenue, exclusive of amortization shown below | 3,566 | 4,292 | 17 | % | 11,054 | 14,084 | 22 | % | |||||||||||||||||||||||||||
| Amortization expense | 843 | 954 | 12 | % | 2,530 | 2,862 | 12 | % | |||||||||||||||||||||||||||
| Total cost of revenue | 4,409 | 5,246 | 16 | % | 13,584 | 16,946 | 20 | % | |||||||||||||||||||||||||||
| Gross profit | 8,175 | 5,356 | 53 | % | 20,498 | 15,863 | 29 | % | |||||||||||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||||||||||||||
| Sales and marketing | 5,212 | 9,504 | 45 | % | 16,421 | 37,645 | 56 | % | |||||||||||||||||||||||||||
| Research and development | 2,881 | 2,953 | 2 | % | 8,582 | 10,387 | 17 | % | |||||||||||||||||||||||||||
| General and administrative | 4,266 | 8,103 | 47 | % | 13,280 | 26,160 | 49 | % | |||||||||||||||||||||||||||
| Transaction costs | — | — | nm | — | 2,059 | nm | |||||||||||||||||||||||||||||
| Depreciation and amortization | 1,346 | 1,370 | 2 | % | 4,054 | 4,116 | 2 | % | |||||||||||||||||||||||||||
| Loss on abandonment of assets | — | — | nm | — | 1,658 | nm | |||||||||||||||||||||||||||||
| Total operating expenses | 13,705 | 21,930 | 38 | % | 42,337 | 82,025 | 48 | % | |||||||||||||||||||||||||||
| Loss from operations | (5,530) | (16,574) | 67 | % | (21,839) | (66,162) | 67 | % | |||||||||||||||||||||||||||
| Change in fair value of debt purchase options | 17,424 | — | nm | 17,856 | — | nm | |||||||||||||||||||||||||||||
| Change in fair value of embedded derivative liability | 64,648 | 23,040 | 181 | % | 87,731 | 68,917 | 27 | % | |||||||||||||||||||||||||||
| Interest expense, net | (5,606) | (1,829) | 207 | % | (11,368) | (4,303) | 164 | % | |||||||||||||||||||||||||||
| Loss on extinguishment of debt | — | — | nm | (77,553) | — | nm | |||||||||||||||||||||||||||||
| Loss on issuance of debt | (6,431) | — | nm | (6,431) | — | nm | |||||||||||||||||||||||||||||
| Other expenses, net | (199) | (961) | 79 | % | (369) | (1,341) | 72 | % | |||||||||||||||||||||||||||
| Income (loss) from operations before income taxes | 64,306 | 3,676 | nm | (11,973) | (2,889) | 314 | % | ||||||||||||||||||||||||||||
| Income tax benefit (expense) | 65 | (818) | 108 | % | (1,059) | (1,954) | 46 | % | |||||||||||||||||||||||||||
| Net income (loss) | $ | 64,371 | $ | 2,858 | nm | $ | (13,032) | $ | (4,843) | 169 | % | ||||||||||||||||||||||||
| nm = not meaningful | |||||||||||||||||||||||||||||||||||
Revenue
Revenue was as follows for the three and nine months ended September 30, 2023 and 2022 (in thousands):
| Three Months Ended September 30, | Variance % | Nine Months Ended September 30, | Variance % | ||||||||||||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||||||||||||||
| Subscription revenue | $ | 11,058 | $ | 8,304 | 33 | % | 28,995 | 26,467 | 10 | % | |||||||||||||||||||||||||
| Perpetual licenses | 69 | 710 | 90 | % | 559 | 1,217 | 54 | % | |||||||||||||||||||||||||||
| Services and other | 1,457 | 1,588 | 8 | % | 4,528 | 5,125 | 12 | % | |||||||||||||||||||||||||||
| Total | $ | 12,584 | $ | 10,602 | 19 | % | $ | 34,082 | $ | 32,809 | 4 | % | |||||||||||||||||||||||
Three Months Ended September 30, 2023 and 2022
Revenue increased by $2.0 million, or 19%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. The increase in revenue was primarily attributable to an overall increase in one-year subscription term-based licenses as further explained below, combined with a slight increase in multi-year subscription term-based licenses, partially offset by decreases in all other revenue streams.
Subscription revenue accounted for 88% and 78% of our total revenue for the three months ended September 30, 2023 and 2022, respectively. Subscription revenue increased $2.8 million, or 33%, for the three months ended September 30, 2023 as
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compared to the three months ended September 30, 2022. This increase in subscription revenue was driven by a $2.6 million increase in revenue from sales to existing customers and a $0.2 million increase in revenue from sales to new customers. The increase in revenue from existing customers was from one-year subscription term-based licenses. In turn, approximately $0.4 million of the increase in revenue from new customers was in multi-year subscription term-based licenses, partially offset by a $0.2 million decrease in revenue from one-year subscription term-based licenses. Our dollar-based net retention rate was 97% at September 30, 2023, up from 94% at September 30, 2022.
Perpetual licenses revenue accounted for 1% and 7% of our total revenue for the three months ended September 30, 2023 and 2022, respectively. Perpetual licenses revenue decreased $0.6 million for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. This decrease in perpetual license revenue was driven by higher sale and deployment of new perpetual licenses in 2022 that did not reoccur in 2023. We expect this trend to continue as demand for term-based license and SaaS subscriptions continue to grow over time.
Services and other revenue accounted for 12% and 15% of our total revenue for the three months ended September 30, 2023 and 2022, respectively. Services and other revenue decreased $0.1 million, or 8%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. This decrease in services and other revenue was primarily the result of an overall decrease in service hours billed to customers during the three months ended September 30, 2023 as compared to the three months ended September 30, 2022.
Nine Months Ended September 30, 2023 and 2022
Revenue increased by $1.3 million, or 4%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. The increase in revenue was primarily attributable to an overall increase in one-year subscription term-based licenses as further explained below, combined with a slight increase in multi-year subscription term-based licenses, partially offset by decreases in all other revenue streams.
Subscription revenue accounted for 85% and 81% of our total revenue for the nine months ended September 30, 2023 and 2022, respectively. Subscription revenue increased $2.5 million, or 10%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. This increase in subscription revenue was driven by a $3.7 million increase in revenue from sales to existing customers, partially offset by a $1.2 million decrease in revenue from sales to new customers. Approximately $3.1 million of the increase in revenue from existing customers was from one-year subscription term-based licenses, and $0.5 million from multi-year subscription term-based licenses. In turn, approximately $0.7 million of the decrease in revenue from new customers was from multi-year subscription term-based licenses and $0.5 million from one-year subscription term-based licenses.
Perpetual licenses revenue accounted for 2% and 4% of our total revenue for the nine months ended September 30, 2023 and 2022, respectively. Perpetual licenses revenue decreased $0.7 million for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. This decrease in perpetual license revenue was driven by higher sale and deployment of new perpetual licenses in 2022 that did not reoccur in 2023. We expect this trend to continue as demand for term-based license and SaaS subscriptions continue to grow over time.
Services and other revenue accounted for 13% and 16% of our total revenue for the nine months ended September 30, 2023 and 2022, respectively. Services and other revenue decreased $0.6 million, or 12%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. This decrease in services and other revenue was primarily the result of an overall decrease in service hours billed to customers during the nine months ended September 30, 2023 when compared to the nine months ended September 30, 2022.
Cost of Revenue
Total cost of revenue decreased by $0.8 million, or 16%, during the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. The decrease in total cost of revenue was primarily due to a decrease of $0.7 million in other cost of revenue and a decrease of $0.1 million in amortization of developed technology. Total cost of revenue decreased by $3.4 million, or 20%, during the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. The decrease in total cost of revenue was primarily due to a decrease of $3.0 million in other cost of revenue and a decrease of $0.3 million in amortization of developed technology.
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The decreases in other cost of revenue were primarily as a result of a decrease in personnel costs, specifically severance and other termination related costs incurred in 2022 and the first quarter of 2023 following the Reductions, and in subscription and hosting costs and contracted services. The decrease in amortization of developed technology is primarily related to the abandonment of the Compliance Sheriff related developed technology in 2022.
Gross Profit
Gross profit totaled $8.2 million for the three months ended September 30, 2023, an increase of $2.8 million, or 53%, as compared to the three months ended September 30, 2022. Gross profit totaled $20.5 million for the nine months ended September 30, 2023, an increase of $4.6 million, or 29%, as compared to the nine months ended September 30, 2022. The increases for the three and nine months ended September 30, 2023 were the result of the factors described above under “Revenue” and “Cost of Revenue”.
Operating Expenses
Total operating expenses decreased by $8.2 million, or 38%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. Total operating expenses decreased by $39.7 million, or 48%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. The factors that contributed to these decreases in operating expenses are detailed below.
Sales and marketing expenses decreased by $4.3 million, or 45%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. Sales and marketing expenses decreased by $21.2 million, or 56%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. These decreases were primarily the result of a decrease in personnel costs from the nonrecurrence of severance and other termination related costs incurred in 2022 and the first quarter of 2023 and lower headcount on both the sales and marketing teams following the Reductions, and to a lesser extent, lower investment in marketing and advertising costs due to other cost reduction initiatives. Sales and marketing headcount decreased by 19 positions from 103 at September 30, 2022 to 84 at September 30, 2023.
Research and development expenses decreased by $0.1 million, or 2%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. Research and development expenses decreased by $1.8 million, or 17%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. These decreases were primarily the result of a decrease in personnel costs from the nonrecurrence of severance and other termination related costs incurred in 2022 and the first quarter of 2023 and lower headcount following the Reductions. Research and development headcount decreased by 6 positions from 121 at September 30, 2022 to 115 at September 30, 2023.
General and administrative expenses decreased by $3.8 million, or 47%, for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. General and administrative expenses decreased by $12.9 million, or 49%, for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. These decreases were primarily due to the nonrecurrence of equity-based compensation expense recognized during the three and nine months ended September 30, 2022 in connection with the 2021 Plan, and a decrease in personnel costs from the nonrecurrence of severance and other termination related costs incurred in 2022 and the first quarter of 2023 and lower headcount following the Reductions. General and administrative headcount decreased by 7 positions from 66 at September 30, 2022 to 59 at September 30, 2023.
Transaction costs. In June 2022, we expensed $2.1 million of transaction costs related to a contemplated registered offering of equity securities.
Depreciation and amortization expense remained relatively flat for the three and nine months ended September 30, 2023 as compared to the three and nine months ended September 30, 2022.
Loss on Abandonment of Assets. We stopped offering our Compliance Sheriff product and, as a result, recorded a loss on abandonment of the related intangible assets of $1.7 million in the nine months ended September 30, 2022 (all during the three months ended March 31, 2022).
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Change in Fair Value of Debt Purchase Options
For the three and nine months ended September 30, 2023, we recognized gains of $17.4 million and $17.9 million, respectively, in connection with the debt purchase option features under the Convertible Senior Notes and AF Convertible Notes.
Change in Fair Value of Embedded Derivative Liability
For the three and nine months ended September 30, 2023, we recognized gains of $64.6 million and $87.7 million, respectively, in connection with the embedded derivative associated with the conversion feature under the Convertible Senior Notes, as compared to gains of $23.0 million and $68.9 million, respectively, in the three and nine months ended September 30, 2022.
Interest Expense, Net
Interest expense, net increased by $3.8 million for the three months ended September 30, 2023 as compared to the three months ended September 30, 2022. Interest expense, net increased by $7.1 million for the nine months ended September 30, 2023 as compared to the nine months ended September 30, 2022. The increases in interest expense, net were primarily attributable to the changes in the mix of our debt during 2022 and 2023. As described below under “Liquidity and Capital Resources”, in July 2023, we entered into the AF Convertible Notes, in June 2023, we entered into the A&R Note Issuance Agreement, and in April 2022, we entered into the Revolving Credit Facility.
The AF Convertible Notes bear interest at a rate of 9.50% per annum.
Interest accrues on amounts drawn under the Revolving Credit Facility at a rate of 10.0% per annum, payable in cash on the Final Maturity Date (as defined in the A&R Revolving Credit Agreement). The average outstanding balance under the Revolving Credit Facility during the three and nine months ended September 30, 2023 was $50.0 million and $48.9 million, respectively, compared to $28.8 million and $12.6 million during the three and nine months ended September 30, 2022, respectively.
Additionally, on February 1, 2023 and August 1, 2023, Legacy Appgate issued approximately $2.1 million and $2.5 million, respectively, in PIK Convertible Senior Notes each with respect to a single interest payment date. Prior to June 9, 2023, interest on the Convertible Senior Notes accrued at an annual rate of 5.00% with respect to interest payments made in cash and 5.50% with respect to PIK Interest. Upon entry into the A&R Note Issuance Agreement and effective June 9, 2023, interest on the Convertible Senior Notes accrues at an annual rate of 8.00% with respect to interest payments made in cash and 8.50% with respect to PIK Interest.
Loss on Extinguishment of Debt
For the nine months ended September 30, 2023, we recognized a loss of $77.6 million in connection with the A&R Note Issuance Agreement and Convertible Senior Notes. See Note 8 of Part I, Item 1, “Financial Statements” of this Quarterly Report for more information on the A&R Note Issuance Agreement and Convertible Senior Notes.
Loss on Issuance of Debt
For the nine months ended September 30, 2023, we recognized a loss of $6.4 million in connection with the entering into of the AF Note Issuance Agreement and AF Convertible Notes. See Note 8 of Part I, Item 1, “Financial Statements” of this Quarterly Report for more information on the AF Note Issuance Agreement and AF Convertible Notes.
Other Expenses, Net
Other expenses, net were $0.8 million and $1.0 million lower for each of the three and nine months ended September 30, 2023, respectively, when compared to the three and nine months ended September 30, 2022. These decreases were primarily the result of costs expensed following the abandonment of certain projects during 2022.
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Income Tax Expense
Our effective tax rate for the three and nine months ended September 30, 2023 was 0.1% and 8.8%, respectively. The effective tax rates for the three and nine months ended September 30, 2023 differ from the U.S. Federal income tax rate of 21% primarily due to changes in the valuation allowance, the loss on extinguishment of debt and the change in the fair value of our embedded derivative liability, both of which are not tax deductible, state taxes, and foreign withholding taxes. The Company has determined that the tax effects of the change in the fair value of its embedded derivative liability cannot reliably be estimated. Accordingly, the discrete-period computation method has been used and the annual effective tax rate may change significantly once included.
Our effective tax rate for the three and nine months ended September 30, 2022 was (22.3)% and 67.6%, respectively. The effective tax rates for the three and nine months ended September 30, 2022 differ from the U.S. Federal income tax rate of 21% primarily due to foreign withholding taxes, changes in the valuation allowance, the change in the fair value of our embedded derivative liability that is not tax deductible, and state taxes. The Company has determined that the tax effects of the change in the fair value of its embedded derivative liability cannot reliably be estimated. Accordingly, the discrete-period computation method has been used and the annual effective tax rate may change significantly once included.
Non-GAAP Financial Measures
In addition to our results determined in accordance with GAAP, we believe the following non-GAAP financial measures are useful to investors in evaluating our operating performance.
These non-GAAP financial measures are presented for supplemental informational purposes only and should not be considered a substitute for financial information presented in accordance with GAAP and may be different from similarly titled non-GAAP measures used by other companies. A reconciliation is provided below for each non-GAAP financial measure to the most directly comparable financial measure determined in accordance with GAAP. Investors are encouraged to review the related GAAP financial measures and the reconciliation of these non-GAAP financial measures to their most directly comparable GAAP financial measures.
Non-GAAP Gross Profit and Gross Margin
Non-GAAP gross profit and non-GAAP gross margin are supplemental measures of operating performance that are not determined in accordance with GAAP and do not represent, and should not be considered as, an alternative to gross profit and gross margin, the most directly comparable financial measures determined in accordance with GAAP. We define non-GAAP gross profit as gross profit, adjusted to add back non-cash equity-based compensation expense and developed technology amortization expense and define non-GAAP gross margin as non-GAAP gross profit as a percentage of revenue.
We use non-GAAP gross profit and non-GAAP gross margin to understand and evaluate our core operating performance and trends, to prepare and approve our annual budget, and to develop short-term and long-term operating plans. We believe that non-GAAP gross profit and non-GAAP gross margin are useful measures to our management and to our investors because they provide consistency and comparability with past financial performance and between periods, as the metrics generally eliminate the effects of the variability of amortization expense of intangibles and non-cash equity-based compensation expense from period to period, which may fluctuate for reasons unrelated to overall operating performance. We believe that the use of these measures enables our management to more effectively evaluate our performance period-over-period and relative to our competitors, some of which use similar non-GAAP financial measures to supplement their GAAP results. Non-GAAP gross profit and non-GAAP gross margin have limitations as analytical tools, and you should not consider them in isolation, or as a substitute for analysis of our results as reported under GAAP. Because of these limitations, non-GAAP gross profit and non-GAAP gross margin should not be considered as a replacement for gross profit and gross margin, as determined in accordance with GAAP, or as a measure of our profitability.
A reconciliation of our non-GAAP gross profit and non-GAAP gross margin to gross profit and gross margin, the most directly comparable financial measures determined in accordance with GAAP, for the periods presented, is as follows (in thousands):
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| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| GAAP revenue | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
| GAAP gross profit | 8,175 | 5,356 | 20,498 | 15,863 | |||||||||||||||||||
| Add: amortization expense | 843 | 954 | 2,530 | 2,862 | |||||||||||||||||||
| Add: equity-based compensation | — | — | — | 62 | |||||||||||||||||||
| Non-GAAP gross profit | $ | 9,018 | $ | 6,310 | $ | 23,028 | $ | 18,787 | |||||||||||||||
| GAAP gross margin | 65 | % | 51 | % | 60 | % | 48 | % | |||||||||||||||
| Non-GAAP gross margin | 72 | % | 60 | % | 68 | % | 57 | % | |||||||||||||||
Non-GAAP Loss from Operations and Non-GAAP Operating Margin
We define non-GAAP loss from operations as GAAP loss from operations excluding amortization expense of acquired intangible assets, loss on abandonment of assets, non-cash equity-based compensation expense, and transaction costs. We define non-GAAP operating margin as non-GAAP loss from operations as a percentage of revenue.
A reconciliation of our non-GAAP loss from operations and non-GAAP operating margin to loss from operations and operating margin, the most directly comparable financial measures determined in accordance with GAAP, for the periods presented, is as follows (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2023 | 2022 | 2023 | 2022 | ||||||||||||||||||||
| GAAP revenue | $ | 12,584 | $ | 10,602 | $ | 34,082 | $ | 32,809 | |||||||||||||||
| GAAP loss from operations | (5,530) | (16,574) | (21,839) | (66,162) | |||||||||||||||||||
| Add: amortization expense | 1,985 | 2,099 | 5,957 | 6,295 | |||||||||||||||||||
| Add: loss on abandonment of assets | — | — | — | 1,658 | |||||||||||||||||||
| Add: equity-based compensation | — | 3,641 | 42 | 11,029 | |||||||||||||||||||
| Add: transaction costs | — | — | — | 2,059 | |||||||||||||||||||
| Non-GAAP loss from operations | $ | (3,545) | $ | (10,834) | $ | (15,840) | $ | (45,121) | |||||||||||||||
| GAAP operating margin | (44) | % | (156) | % | (64) | % | (202) | % | |||||||||||||||
| Non-GAAP operating margin | (28) | % | (102) | % | (46) | % | (138) | % | |||||||||||||||
Free Cash Flow and Free Cash Flow Margin
Free cash flow is a non-GAAP financial measure that we define as net cash provided by (used in) operating activities of operations less cash used for purchases of property and equipment and repayment of finance leases. We believe that free cash flow is a useful indicator of liquidity that provides information to management and investors, even if negative, as it provides useful information about the amount of cash generated (or consumed) by our operating activities that is available (or not available) to be used for other strategic initiatives. For example, if free cash flow is negative, we may need to access cash reserves or other sources of capital to invest in strategic initiatives. While we believe that free cash flow is useful in evaluating our business, free cash flow is a non-GAAP financial measure that has limitations as an analytical tool, and free cash flow should not be considered as an alternative to, or substitute for, net cash provided by (used in) operating activities in accordance with GAAP. The utility of free cash flow as a measure of our liquidity is limited as it does not represent the total increase or decrease in our cash balance for any given period and does not reflect our future contractual commitments. In addition, other companies, including companies in our industry, may calculate free cash flow differently or not at all, which reduces the usefulness of free cash flow as a tool for comparing our results to those of other companies.
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| Nine Months Ended September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Net cash, cash equivalents and restricted cash used in operating activities | $ | (17,583) | $ | (51,523) | |||||||
| Less: | |||||||||||
| Purchases of property and equipment | (50) | (514) | |||||||||
| Free cash flow | $ | (17,633) | $ | (52,037) | |||||||
| As a percentage of revenue: | |||||||||||
| GAAP revenue | $ | 34,082 | $ | 32,809 | |||||||
| Net cash, cash equivalents and restricted cash used in operating activities | (52) | % | (157) | % | |||||||
| Less: | |||||||||||
| Purchases of property and equipment | — | % | (2) | % | |||||||
| Free cash flow | (52) | % | (159) | % | |||||||
Liquidity and Capital Resources
As of September 30, 2023, we had cash and cash equivalents of $3.6 million. Historically, Legacy Appgate’s principal source of liquidity was borrowing availability under certain promissory notes and cash generated from Legacy Appgate’s operations.
We have generated significant operating losses and negative cash flows from operations as reflected in our accumulated deficit and condensed consolidated statements of cash flows. We expect to continue to incur operating losses and negative cash flows from operations for the foreseeable future. Currently, our principal sources of liquidity are the proceeds from the issuance of the Convertible Senior Notes and the AF Convertible Notes, our borrowings under the Revolving Credit Facility, and cash generated from our operations, which have enabled us to make continued investments to support the growth of our business. As a result of our recurring losses from operations and current liquidity, management is of the opinion that there is a substantial doubt as to the Company’s ability to continue as a going concern. The unaudited condensed consolidated financial statements included herein have been prepared assuming that we will continue as a going concern and do not include adjustments that might result from the outcome of this uncertainty. If we are unable to raise the requisite funds, we will need to curtail or cease operations. See Note 1 to the unaudited condensed consolidated financial statements.
We have based our estimates as to how long we expect we will be able to fund our operations on assumptions that may prove to be wrong. We will be required to obtain additional financing to fund our current planned operations, which may not be available to us on acceptable terms, or at all. Our failure to raise capital as and when needed may have a negative impact on our financial condition and our ability to pursue our business strategy. If we do raise additional capital through public or private equity offerings, the ownership interest of our existing stockholders will be diluted. If we raise additional capital through debt financing, we may be subject to covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends.
Debt
As of September 30, 2023, we had $135.0 million in aggregate principal amount of debt outstanding: $79.5 million under the Convertible Senior Notes, $5.5 million under the AF Convertible Notes, and $50.0 million under the Revolving Credit Facility. As of December 31, 2022, we had $121.5 million in aggregate principal amount of debt outstanding: $75.0 million under the Convertible Senior Notes and $46.5 million under the Revolving Credit Facility.
Convertible Senior Notes
On February 9, 2021, Legacy Appgate issued the Initial Convertible Senior Notes to various funds managed by Magnetar. In connection with the closing of the Merger, Legacy Appgate issued the Additional Convertible Senior Notes. The Convertible Senior Notes were originally subject to the terms and conditions of the Original Note Issuance Agreement and the Original Note Purchase Agreement.
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We received net proceeds of $72.8 million from the issuance of the Initial Convertible Senior Notes and Additional Convertible Senior Notes, after deducting fees and expenses of $2.2 million. We recorded these fees and expenses as debt issuance costs that will be amortized over the term of the Convertible Senior Notes.
On February 1, 2023 and August 1, 2023, Legacy Appgate issued approximately $2.1 million and $2.5 million, respectively, in PIK Convertible Senior Notes each with respect to a single interest payment date.
On June 9, 2023, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries, Easy Solutions Japan, GK (“ES Japan”), Easy Solutions S.A.S. (“ES Colombia” and, collectively with the domestic subsidiaries, Appgate and ES Japan, the “Note Guarantors”), Magnetar, and U.S. Bank Trust Company, National Association, as collateral agent (in such capacity, the “Collateral Agent”), entered into an amended and restated note issuance agreement (the “A&R Note Issuance Agreement”), pursuant to which the Original Note Issuance Agreement was amended and restated to (i) secure the obligations under the Convertible Senior Notes and the other related agreements with a first priority security interest in substantially all assets of Legacy Appgate and the Note Guarantors, (ii) extend the maturity date of the Convertible Senior Notes from February 9, 2024 to February 9, 2026, or, at Magnetar’s election, February 9, 2028 (in each case, unless earlier converted, redeemed, or repurchased), (iii) modify the financial covenant contained in the Original Note Issuance Agreement to provide that Appgate maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter (as further described below), (iv) increase the interest payable semi-annually under the Convertible Senior Notes from an annual rate of 5.00% if paid in cash or 5.50% if paid in kind to an annual rate of 8.00% if paid in cash or 8.50% if paid in kind, with such increase effective as of June 9, 2023, and (v) increase the conversion rate for each $1,000 principal amount of Convertible Senior Notes from 146.4374 shares of common stock of Appgate to a conversion rate of 527.17464 shares of common stock of Appgate; provided, that, in the event that Legacy Appgate fails to achieve Bookings (as defined in the A&R Note Issuance Agreement) of at least $15.0 million during the fiscal year ending December 31, 2023, the conversion rate will increase to 585.74960 shares of common stock of Appgate for each $1,000 principal amount of Notes (such increased number of shares of common stock into which the Notes may be converted, the “Additional Conversion Shares”).
The Convertible Senior Notes are senior obligations of Legacy Appgate and unconditionally guaranteed, jointly and severally, by each of the Note Guarantors. Interest on the Convertible Senior Notes is payable at Legacy Appgate’s election in cash, in kind (“PIK Interest”), or in a combination of cash and PIK Interest. The Convertible Senior Notes bear interest at the annual rate of 8.00% with respect to interest payments made in cash and 8.50% with respect to PIK Interest, with interest payable semi-annually on February 1 and August 1 of each year. Additional Notes (“PIK Convertible Senior Notes”) to be issued for PIK Interest will have the same terms and conditions as the Convertible Senior Notes.
Additionally on June 9, 2023, Appgate, Legacy Appgate, and the lenders thereunder (the “Lenders”) entered into an amended and restated note purchase agreement (the “A&R Note Purchase Agreement”), pursuant to which the Original Note Purchase Agreement was amended and restated to (i) provide for the purchase by the Lenders of up to $15.0 million aggregate principal amount of additional Convertible Senior Notes in one or more subsequent closings on or prior to June 9, 2025 and (ii) amend all previously issued Convertible Senior Notes to reflect terms consistent with the A&R Note Issuance Agreement. Except for the foregoing, the terms of the A&R Note Purchase Agreement are substantially the same as the terms of the Original Note Purchase Agreement.
The A&R Note Issuance Agreement includes certain customary affirmative and financial covenants. For example, the A&R Note Issuance Agreement contains a financial covenant that requires that we maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, the Representative and the Noteholders waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. For more information regarding the covenants under the A&R Note Issuance Agreement, see Note 8 to the unaudited condensed consolidated financial statements.
AF Convertible Notes
On July 20, 2023, Legacy Appgate and Appgate entered into the AF Note Purchase Agreement with Appgate Funding and the AF Note Issuance Agreement with Legacy Appgate’s wholly owned domestic subsidiaries and Appgate Funding.
Pursuant to the AF Note Agreements, on July 20, 2023, Legacy Appgate issued and sold to Appgate Funding the Initial AF Convertible Notes. In addition, pursuant to the terms of the AF Note Purchase Agreement, Appgate Funding or its affiliates has the right to purchase additional notes up to an aggregate total of $30.0 million in AF Convertible Notes on or prior to July 20, 2025. On August 21, 2023, Legacy Appgate issued and sold to Appgate Funding $2.0 million aggregate principal
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amount of Additional AF Convertible Notes. On September 18, 2023, Legacy Appgate issued and sold to the Purchaser an additional $1.0 million aggregate principal amount of Additional AF Convertible Notes. During the nine months ended September 30, 2023, we issued an aggregate of $5.5 million in AF Convertible Notes, all of which remained outstanding as of September 30, 2023.
The AF Convertible Notes mature on May 9, 2026, subject to extension to May 9, 2028 at the election of either Appgate Funding or the Representative under the Convertible Senior Notes. Indebtedness under the AF Convertible Notes is contractually subordinated to the Convertible Senior Notes.
Interest on the AF Convertible Notes is payable at Legacy Appgate’s election in cash, as PIK Interest, or in a combination of cash and PIK Interest; provided, that Legacy Appgate may not pay cash interest prior to July 20, 2024. The AF Convertible Notes bear interest at the annual rate of 9.50%, regardless of whether interest is paid in cash or in PIK Interest, with interest payable semi-annually on February 1 and August 1 of each year, beginning on February 1, 2024. Additional notes to be issued for PIK Interest will have the same terms and conditions as the AF Convertible Notes. Legacy Appgate’s obligations under the AF Convertible Notes and other related agreements are secured by a second priority security interest in favor of Appgate Funding in substantially all assets of Appgate, Legacy Appgate and Legacy Appgate’s domestic subsidiaries.
The AF Note Issuance Agreement includes certain customary affirmative and financial covenants. For example, the AF Note Issuance Agreement contains a financial covenant that requires that we maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, Appgate Funding waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. For more information regarding the covenants under the AF Note Issuance Agreement, see Note 8 to the unaudited condensed consolidated financial statements.
Revolving Credit Agreement
On April 26, 2022, Legacy Appgate, Appgate, the other guarantors party thereto and SIS Holdings entered into a revolving credit agreement (the “Original Revolving Credit Agreement”) which provides for a $50.0 million unsecured, revolving credit facility, or the “Revolving Credit Facility”.
On June 9, 2023, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries and SIS Holdings entered into an amended and restated revolving credit agreement (as amended, the “A&R Revolving Credit Agreement”), pursuant to which the Original Revolving Credit Agreement was amended and restated to (i) secure the obligations under the A&R Revolving Credit Agreement with a second priority security interest in substantially all assets of Legacy Appgate, Appgate and Legacy Appgate’s domestic subsidiaries, (ii) extend the maturity date of the facility from June 30, 2023 to either August 9, 2026, or, if Magnetar elects to extend the maturity date of the Convertible Senior Notes to February 9, 2028, to August 9, 2028, and (iii) modify the financial covenant contained in the Original Revolving Credit Agreement to provide that Appgate maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. Indebtedness under the A&R Revolving Credit Agreement is contractually subordinated to the Convertible Senior Notes. Interest accrues on amounts drawn under the Revolving Credit Facility at a rate of 10.00% per annum, payable in cash on the maturity date. All obligations under the A&R Revolving Credit Agreement are guaranteed by Appgate and Legacy Appgate’s domestic subsidiaries.
Concurrently with the execution of the AF Note Agreements, Appgate, Legacy Appgate, Legacy Appgate’s domestic subsidiaries and SIS Holdings entered into an amendment to the A&R Revolving Credit Agreement, pursuant to which the A&R Revolving Credit Agreement was amended to (i) allow for the issuance of the AF Convertible Notes and the grant of a second priority security interest to Appgate Funding to secure the obligations under the AF Convertible Notes, (ii) secure the obligations under the A&R Revolving Credit Agreement with a third priority security interest in substantially all assets of Legacy Appgate, Appgate and Legacy Appgate’s domestic subsidiaries, and (iii) if Appgate Funding elects to extend the maturity date of the AF Convertible Notes to May 9, 2028, extend the maturity date of the Revolving Credit Facility to August 9, 2028.
The A&R Revolving Credit Agreement includes certain customary affirmative and financial covenants. For example, the A&R Revolving Credit Agreement contains a financial covenant that requires that we maintain liquidity of not less than $5.0 million as of the last day of each fiscal quarter. As of September 30, 2023, we had $3.6 million in cash and cash equivalents, and on September 30, 2023, SIS Holdings waived our noncompliance with the above-mentioned liquidity financial covenant with respect to the last day of September 2023. For more information regarding the covenants under the A&R Revolving Credit Agreement, see Note 8 to the unaudited condensed consolidated financial statements.
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As of September 30, 2023, we had $50.0 million in aggregate principal amount of debt outstanding under the Revolving Credit Facility.
Other Contractual Obligations and Commitments
In addition to our debt obligations under the Convertible Senior Notes, the Revolving Credit Facility, the AF Convertible Notes, and lease obligations under several operating lease arrangements, Appgate has other contractual commitments. Refer to Note 7 — Leases and Note 8 — Debt, to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, “Financial Statements” for additional information on maturities. Refer to Note 9 — Commitments and Contingencies to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, “Financial Statements” for additional information regarding cash amounts committed under other contractual obligations.
Cash Flow
Cash Flows for the Nine Months Ended September 30, 2023 and 2022. The following table sets forth our historical cash flows for the periods indicated (in thousands):
Nine Months Ended September 30, | |||||||||||
| 2023 | 2022 | ||||||||||
| Net cash, cash equivalents and restricted cash used in operating activities | $ | (17,583) | $ | (51,523) | |||||||
| Net cash, cash equivalents and restricted cash used in investing activities | $ | (50) | $ | (514) | |||||||
| Net cash, cash equivalents and restricted cash provided by financing activities | $ | 9,000 | $ | 37,500 | |||||||
Operating Activities
Our largest source of operating cash is cash collections from customers for sales of licenses and services. Our primary uses of cash from operating activities are for employee-related expenditures, marketing expenses and third-party hosting costs.
Net cash used in operating activities during the nine months ended September 30, 2023 was $17.6 million, which resulted from a net loss of $13.0 million, adjusted for net non-cash outflows of $0.3 million and net cash outflows of $4.9 million from changes in assets and liabilities. Non-cash outflows primarily consisted of a $17.9 million gain in the fair value of our debt purchase options under the Convertible Senior Notes and AF Convertible Notes and a $87.7 million gain in the fair value of our embedded derivative liability, partially offset by the $77.6 million loss on extinguishment of debt, $6.4 million loss on issuance of debt, $7.8 million non-cash interest expense, $6.6 million of depreciation and amortization, $3.6 million of amortization of debt issuance costs, $3.2 million of amortization of deferred contract acquisition costs, and $0.7 million in provision for allowance for current expected credit losses. The net cash outflows from changes in assets and liabilities were primarily due to changes in working capital and a decrease in contract assets.
Net cash used in operating activities during the nine months ended September 30, 2022 was $51.5 million, which resulted from net income of $4.8 million, adjusted for net non-cash inflows of $42.7 million and net cash outflow of $4.0 million from changes in assets and liabilities. Non-cash inflows primarily consisted of a $68.9 million gain in the fair value of our embedded derivative liability, $11.0 million in equity-based compensation, $7.0 million of depreciation and amortization, $4.7 million of amortization of deferred contract acquisition costs, and $1.7 million of loss on abandonment of assets. The net cash outflow from changes in assets and liabilities was primarily due to increases in deferred contract acquisition costs and cash used in working capital. The main changes in working capital were lower prepaid and other current assets, accounts payable and accrued expenses.
Investing Activities
During the nine months ended September 30, 2023, we used $50 thousand for purchases of property and equipment as compared to $0.5 million during the nine months ended September 30, 2022.
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Financing Activities
During the nine months ended September 30, 2023, we borrowed $5.5 million under the AF Convertible Notes and $3.5 million under the Revolving Credit Facility as compared to $37.5 million under the Revolving Credit Facility during the nine months ended September 30, 2022.
Critical Accounting Estimates
For information regarding our critical accounting estimates, see “Critical Accounting Estimates” included in Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our 2022 Annual Report.
Recent Accounting Pronouncements
Recently issued accounting pronouncements are described in Note 1 of our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, “Financial Statements”.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of the Company’s disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act and regulations promulgated thereunder) as of September 30, 2023. Our disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate, to allow for timely decisions regarding required disclosure. Based on that evaluation, management concluded that, as of September 30, 2023, the Company’s disclosure controls and procedures were not effective at the reasonable assurance level as a result of the material weaknesses discussed in Part II, Item 9A, “Controls and Procedures” in our 2022 Annual Report.
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Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting that occurred during the three months ended September 30, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II
Item 1. Legal Proceedings
Information in response to this Item is included in Note 9 - Commitments and Contingencies to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, “Financial Statements” and is incorporated by reference into this Part II, Item 1 of this Quarterly Report.
Item 1A. Risk Factors
There have been no material changes to the risk factors described in the 2022 Annual Report.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
During the quarter ended September 30, 2023, none of our officers or directors adopted or terminated any contract, instruction or written plan for the purchase or sale of our securities that was intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) under the Exchange Act or any “non-Rule 10b5-1 trading arrangement”, as defined in Item 408 of Regulation S-K.
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Item 6. Exhibits
| Incorporated by Reference | ||||||||||||||||||||||||||
| Exhibit Number | Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||
10.1† | Note Issuance Agreement, dated July 20, 2023, by and among Legacy Appgate, Appgate, the other guarantors party thereto and Appgate Funding, LLC. | 8-K | 10.1 | 7/25/2023 | ||||||||||||||||||||||
10.2† | Note Purchase Agreement, dated July 20, 2023, by and among Legacy Appgate, Appgate and Appgate Funding, LLC. | 8-K | 10.2 | 7/25/2023 | ||||||||||||||||||||||
| Registration Rights Agreement, dated as of July 20, 2023, by and between Appgate and Appgate Funding, LLC. | 8-K | 10.3 | 7/25/2023 | |||||||||||||||||||||||
| Amendment to Amended and Restated Revolving Credit Agreement and Pledge and Security Agreement, dated July 20, 2023, by and among Legacy Appgate, Appgate, the other guarantors party thereto and SIS Holdings, L.P. | 8-K | 10.4 | 7/25/2023 | |||||||||||||||||||||||
| Intercreditor and Subordination Agreement, dated July 20, 2023, by and among Appgate Funding, LLC, SIS Holdings, L.P., Appgate, Legacy Appgate and the Domestic Subsidiary Guarantors. | 8-K | 10.5 | 7/25/2023 | |||||||||||||||||||||||
| Amended and Restated Intercreditor and Subordination Agreement, dated July 20, 2023, by and among U.S. Bank Trust Company, National Association, Appgate Funding, LLC, SIS Holdings, Appgate, Legacy Appgate, the Domestic Subsidiary Guarantors, ES Japan and ES Colombia. | 8-K | 10.6 | 7/25/2023 | |||||||||||||||||||||||
| First Amendment to the Appgate, Inc. 2021 Equity Incentive Plan, effective as of July 20, 2023. | 8-K | 10.7 | 7/25/2023 | |||||||||||||||||||||||
| 101 | Inline Interactive Data File | |||||||||||||||||||||||||
| 104 | Cover Page Interactive Data File | |||||||||||||||||||||||||
* Furnished herewith.
† The schedules (or similar attachments) to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). Appgate agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon its request.
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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 hereunto duly authorized.
Dated: November 14, 2023 | Appgate, Inc. | |||||||
| By: | /s/ Leo Taddeo | |||||||
| Leo Taddeo | ||||||||
| Chief Executive Officer and President | ||||||||
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