---

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		September 30, 2016				December 31, 2015
ASSETS
Current assets:
Cash and cash equivalents		$	80,691			$	99,931
Restricted cash			521				1,490
Short-term investments			15,049				257
Accounts receivable, net of allowance for doubtful accounts of $189 and $166 at September 30, 2016 and December 31, 2015, respectively			8,193				11,590
Unbilled receivables, current			914				1,879
Cost and estimated earnings in excess of billings			440				—
Inventories			5,839				6,503
Deferred tax assets, net			—				938
Prepaid expenses and other current assets			1,507				943
Total current assets			113,154				123,531
Restricted cash, non-current			3,301				2,317
Unbilled receivables, non-current			—				6
Deferred tax assets, non-current			1,021				—
Property and equipment, net of accumulated depreciation of $20,634 and $18,338 at September 30, 2016 and December 31, 2015, respectively			9,182				10,622
Goodwill			12,790				12,790
Other intangible assets, net			2,058				2,531
Other assets, non-current			4				2
Total assets		$	141,510			$	151,799
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable		$	1,796			$	1,865
Accrued expenses and other current liabilities			6,272				7,808
Income taxes payable			137				2
Accrued warranty reserve			394				461
Deferred revenue			6,455				5,878
Current portion of long-term debt			11				10
Total current liabilities			15,065				16,024
Long-term debt, net of current portion			30				38
Deferred tax liabilities, non-current			2,173				2,360
Deferred revenue, non-current			65,231				69,000
Other non-current liabilities			598				718
Total liabilities			83,097				88,140
Commitments and Contingencies (Note 9)
Stockholders’ equity:
Preferred stock, $0.001 par value; 10,000,000 shares authorized; no shares issued or outstanding			—				—
Common stock, $0.001 par value; 200,000,000 shares authorized; 56,023,054 shares issued and 52,301,398 shares outstanding at September 30, 2016, and 54,948,235 shares issued and 52,468,779 shares outstanding at December 31, 2015			56				55
Additional paid-in capital			136,053				129,809
Accumulated other comprehensive loss			(91	)			(64	)
Treasury stock at cost, 3,721,656 and 2,479,456 shares repurchased at September 30, 2016 and December 31, 2015, respectively			(16,210	)			(6,835	)
Accumulated deficit			(61,395	)			(59,306	)
Total stockholders’ equity			58,413				63,659
Total liabilities and stockholders’ equity		$	141,510			$	151,799

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		Three Months Ended September 30,								Nine Months Ended September 30,
		2016				2015				2016				2015
Product revenue		$	11,024			$	12,112			$	33,048			$	28,460
Product cost of revenue			3,968				4,948				11,878				12,315
Product gross profit			7,056				7,164				21,170				16,145
License and development revenue			1,250				—				3,750				—
Operating expenses:
General and administrative			3,971				3,590				12,847				15,230
Sales and marketing			2,512				2,195				6,517				6,622
Research and development			2,319				1,474				7,406				5,417
Amortization of intangible assets			158				159				473				476
Total operating expenses			8,960				7,418				27,243				27,745
Loss from operations			(654	)			(254	)			(2,323	)			(11,600	)
Other expense:
Interest expense			(1	)			—				(2	)			(40	)
Other non-operating income (expense)			79				(48	)			137				(130	)
Loss before income taxes			(576	)			(302	)			(2,188	)			(11,770	)
Provision (benefit) for income taxes			3				38				(99	)			180
Net loss		$	(579	)		$	(340	)		$	(2,089	)		$	(11,950	)
Net loss per share – basic and diluted		$	(0.01	)		$	(0.01	)		$	(0.04	)		$	(0.23	)
Weighted average shares outstanding – basic and diluted			52,106				52,237				52,227				52,071

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		Three Months Ended September 30,								Nine Months Ended September 30,
		2016				2015				2016				2015
Net loss		$	(579	)		$	(340	)		$	(2,089	)		$	(11,950	)
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments			5				(4	)			(1	)			21
Unrealized gain (loss) on investments			5				3				(26	)			4
Other comprehensive income (loss)			10				(1	)			(27	)			25
Comprehensive loss		$	(569	)		$	(341	)		$	(2,116	)		$	(11,925	)

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		Nine Months Ended September 30,
		2016				2015
Cash Flows From Operating Activities
Net loss		$	(2,089	)		$	(11,950	)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization			2,771				2,897
Stock-based compensation			2,640				3,549
Provision for warranty claims			134				91
Amortization of premiums on investments			94				154
Provision for doubtful accounts			68				88
Unrealized loss on foreign currency transactions			65				54
Change in fair value of put options			33				55
Other non-cash adjustments			(120	)			11
Valuation adjustments for excess or obsolete inventory			(175	)			(126	)
Reversal of accruals related to expired warranties			(201	)			(213	)
Deferred income taxes			(270	)			172
Changes in operating assets and liabilities:
Accounts receivable			3,330				2,810
Unbilled receivables			971				509
Inventories			839				(563	)
Deferred revenue, product			557				449
Income taxes payable			135				(10	)
Litigation settlement			—				(1,700	)
Accounts payable			(69	)			(134	)
Costs and estimated earnings in excess of billings			(440	)			—
Prepaid and other assets			(598	)			(242	)
Accrued expenses and other liabilities			(1,598	)			(3,602	)
Deferred revenue, SLB license			(3,750	)			—
Net cash provided by (used in) operating activities			2,327				(7,701	)
Cash Flows From Investing Activities
Maturities of marketable securities			1,000				11,845
Change in restricted cash			(15	)			1,856
Capital expenditures			(900	)			(557	)
Purchases of marketable securities			(15,912	)			—
Net cash (used in) provided by investing activities			(15,827	)			13,144
Cash Flows From Financing Activities
Net proceeds from issuance of common stock			3,708				558
Proceeds from long-term debt			—				55
Repayment of long-term debt			(7	)			(5	)
Repurchase of common stock			(9,375	)			—
Net cash (used in) provided by financing activities			(5,674	)			608
Effect of exchange rate differences on cash and cash equivalents			(66	)			(54	)
Net change in cash and cash equivalents			(19,240	)			5,997
Cash and cash equivalents, beginning of period			99,931				15,501
Cash and cash equivalents, end of period		$	80,691			$	21,498

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Note 1 — The Company and Summary of Significant Accounting Policies

 

The Company

 

Energy Recovery, Inc. (the “Company,” “Energy Recovery,” “our,” “us,” and “we”) is an energy solutions provider to industrial fluid flow markets worldwide. Our core competencies are fluid dynamics and advanced material science. Our products make industrial processes more operating and capital expenditure efficient. Our solutions convert wasted pressure energy into a reusable asset and preserve or eliminate pumping technology in hostile processing environments. Our solutions are marketed and sold in fluid flow markets, such as water, oil & gas, and chemical processing, under the trademarks ERI^®, PX^®, Pressure Exchanger^®, PX Pressure Exchanger^®, AT^™, AquaBold^™, VorTeq^™, IsoBoost^®, and IsoGen^®. Our solutions are owned, manufactured, and/or developed, in whole or in part, in the United States of America (“U.S.”) and the Republic of Ireland.

 

Use of Estimates

 

The preparation of condensed consolidated financial statements in conformity with U.S. generally accepted accounting principles (“U.S. GAAP”) requires our management to make judgments, assumptions, and estimates that affect the amounts reported in the condensed consolidated financial statements and accompanying notes. The accounting policies that reflect our more significant estimates and judgments and that we believe are the most critical to aid in fully understanding and evaluating our reported financial results are revenue recognition - completed contract and percentage-of-completion; allowance for doubtful accounts; allowance for product warranty; valuation of stock options; valuation and impairment of goodwill, long-lived assets, and acquired intangible assets; useful lives for depreciation and amortization; valuation adjustments for excess and obsolete inventory; and deferred taxes and valuation allowances on deferred tax assets. Actual results could differ materially from those estimates.

 

Basis of Presentation

 

The condensed consolidated financial statements include the accounts of Energy Recovery and its wholly-owned subsidiaries. All significant intercompany accounts and transactions have been eliminated.

 

The accompanying condensed consolidated financial statements have been prepared by us, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to such rules and regulations. The December 31, 2015 condensed consolidated balance sheet was derived from audited financial statements, and may not include all disclosures required by U.S. GAAP; however, we believe that the disclosures are adequate to make the information presented not misleading. These unaudited condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and the notes thereto for the fiscal year ended December 31, 2015 included in our Annual Report on Form 10-K filed with the SEC on March 3, 2016.

 

In the opinion of management, all adjustments, consisting of only normal recurring adjustments that are necessary to present fairly the financial position, results of operations, and cash flows for the interim periods, have been made. The results of operations for the interim periods are not necessarily indicative of the operating results for the full fiscal year or any future periods.

 

Addition of New Revenue Stream to Revenue Recognition Policy - IsoBoost and IsoGen

 

In July 2016 we finalized a purchase order associated with a previously announced letter of award to provide multiple units of our IsoBoost technology for integration into a major gas processing plant to be constructed in the Middle East. The contract is for approximately $7 million worth of equipment and services, with an option for an additional $4 million to be determined at a later date. The optional supply may not be confirmed by the customer until the latter portion of 2017. This contract is comprised of fixed prices, with customer specific specifications, and will take over one year to complete.

 

IsoBoost and IsoGen systems are highly engineered, customized solutions that are designed and manufactured over an extended period of time and are built specifically to meet a customer’s specifications. It is the Company’s position that percentage-of-completion method of accounting is appropriate for IsoBoost and IsoGen systems given the facts and circumstances of these projects. In the event that a purchase order for an IsoBoost or IsoGen does not meet these facts and circumstances then percentage-of-completion method of accounting does not apply.

 

 

Revenue from fixed price contracts is recognized using the percentage-of-completion method of accounting in the ratio of costs incurred to estimated final costs. Contract costs include all direct material and labor costs and those indirect costs related to contract performance. Pre-contract costs with no future benefit are expensed in the period in which they are incurred. Since the financial reporting of these contracts depends on estimates, which are assessed continually during the term of the contract, recognized revenues and profit are subject to revisions as the contract progresses to completion. Revisions in profit estimates are reflected in the period in which the facts that give rise to the revisions become known. If material, the effects of any changes in estimates are disclosed in the notes to the consolidated financial statements. When estimates indicate that a loss will be incurred on a contract, a provision for the expected loss is recorded in the period in which the loss becomes evident. Revenue is recognized only to the extent costs have been recognized in the same period.

 

Recent Accounting Pronouncements

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers. The amendment requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. ASU 2014-09 will replace most existing revenue recognition guidance in U.S. GAAP when it becomes effective. ASU 2014-09 is effective for annual reporting periods beginning after December 15, 2016, including interim periods within that reporting period. On July 9, 2015, the FASB voted to approve a one-year deferral of the effective date of ASU 2014-09. Based on the FASB’s decision, ASU 2014-09 will apply to us for annual reporting periods beginning after December 15, 2017, including interim reporting periods within annual reporting periods beginning after December 15, 2017. Additionally, the FASB decided to permit early adoption, but not before the original effective date (that is, annual periods beginning after December 15, 2016). The FASB issued ASU 2015-14 in August 2015, formally deferring the effective date of ASU 2014-09 by one year. We expect to adopt this guidance as of January 1, 2018. ASU 2014-09 permits the use of either the retrospective or cumulative effect transition method. We are currently evaluating the effect that ASU 2014-09 will have on our financial statements and related disclosures. We have not yet selected a transition method nor have we determined the effect of the standard on our ongoing financial reporting.

 

In November 2015, the FASB issued ASU No. 2015-17, Income Taxes (Topic 740) - Balance Sheet Classification of Deferred Taxes. ASU 2015-17 eliminates the current requirement to present deferred tax assets and liabilities as current and noncurrent in a classified statement of financial position. Instead, ASU 2015-17 requires that deferred tax assets and liabilities be classified as noncurrent in a classified statement of financial position. We adopted this accounting standard update early, on a prospective basis, at the beginning of the second quarter of 2016 to simplify presentation of deferred taxes. The adoption at the beginning of the second quarter of 2016 resulted in a $1.1 million decrease in current deferred tax assets, a $0.8 million increase in non-current deferred tax assets, and a $0.3 million decrease in non-current deferred tax liabilities. No prior periods were retrospectively adjusted.

 

In January 2016, the FASB issued ASU No. 2016-01 Financial Instruments - Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities. ASU 2016-01 modifies certain aspects of the recognition, measurement, presentation, and disclosure of financial instruments. For public entities, ASU 2016-01 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2017, and early adoption is permitted. We do not expect the adoption of this standard to have a material impact on our financial statements.

 

In February 2016, the FASB issued ASU No. 2016-02 Leases (Topic 842). ASU 2016-02 impacts any entity that enters into a lease with some specified scope exceptions. The guidance updates and supersedes Topic 840, Leases. For public entities, ASU 2016-02 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2018, and early adoption is permitted. We are currently evaluating the impact of this guidance on our ongoing financial reporting.

 

In March and April 2016, the FASB issued ASU No. 2016-08 and ASU No. 2016-10, respectively, Revenue from Contracts with Customers (Topic 606). The amendments in these updates are intended to improve the operability and understandability of the implementation guidance on principal versus agent considerations and to clarify two aspects of Topic 606: identifying performance obligations and the licensing implementation guidance, while retaining the related principles for those areas. The effective date and transition requirements for both ASU 2016-08 and ASU 2016-10 are the same as those for ASU 2014-09 as deferred by ASU 2015-14.

 

 

In March 2016, the FASB issued ASU No. 2016-09 Compensation – Stock Compensation (Topic 718). ASU 2016-09 affects any entity that issues stock-based payment awards to their employees and is intended to simplify several aspects of the accounting for stock-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. For public entities, ASU 2016-09 is effective for annual periods beginning after December 15, 2016, and interim periods with those annual periods. Early adoption is permitted. We are currently evaluating the impact of this guidance, but do not expect the adoption of this standard to have a material impact on our financial statements.

 

In August 2016, the FASB issued ASU No. 2016-15 Statement of Cash Flows (Topic 230) – Classification of Certain Cash Receipts and Cash Payments. ASU 2016-15 impacts all entities that are required to present a statement of cash flows under Topic 230. The amendment provides guidance on eight specific cash flow issues. For public entities, ASU 2016-15 is effective for fiscal periods beginning after December 15, 2017 and interim periods within those years. Early adoption is permitted and should be applied using a retrospective transition method to each period presented. We do not expect the adoption of this standard to have a material impact on our financial statements.

 

Note 2 — Goodwill and Other Intangible Assets

 

Goodwill as of September 30, 2016 and December 31, 2015 of $12.8 million and $12.8 million, respectively, was the result of our acquisition of Pump Engineering, LLC in December 2009. In July 2015 with the adoption of a new organizational and reporting structure based on our operating segments, Water and Oil & Gas, we changed the measurement date of our annual goodwill impairment test from December to July. Consequently, we completed the required annual testing of goodwill for impairment for all reporting units as of July 1, 2016 and determined that goodwill was not impaired.

 

During the three and nine months ended September 30, 2016, there were no changes in the recognized amount of goodwill, and there has been no impairment of goodwill to date.

 

The components of identifiable other intangible assets, all of which are finite-lived, as of the dates indicated were as follows (in thousands):

 

 

 

 

Accumulated impairment losses at September 30, 2016 and December 31, 2015, include impairment charges for trademarks in 2012 and impairment charges for patents in 2007 and 2010.

 

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Note 3 — Loss per Share

 

Basic and diluted net loss per share is based on the weighted average number of common shares outstanding during the period. Potential dilutive securities are excluded from the calculation of loss per share, as their inclusion would be anti-dilutive.

 

The following table shows the computation of basic and diluted loss per share (in thousands, except per share data):

 

 

 

The following potential common shares were excluded from the computation of diluted loss per share because the effect would have been anti-dilutive (in thousands):

 

 

Note 4 — Other Financial Information

 

Restricted Cash

 

We have pledged cash in connection with stand-by letters of credit. We have deposited corresponding amounts into money market accounts at two financial institutions for these items as follows (in thousands):

 

 

Inventories

 

Our inventories are stated at the lower of cost (using the first-in, first-out method) or market and consisted of the following (in thousands):

 

 

 

Prepaid and Other Current Assets

 

Prepaid expenses and other current assets consisted of the following (in thousands):

 

 

Accrued Expenses and Other Current Liabilities

 

Accrued expenses and other current liabilities consisted of the following (in thousands):

 

 

Accumulated Other Comprehensive Loss

 

Changes in accumulated other comprehensive loss by component for the nine months ended September 30, 2016, were as follows (in thousands):

 

 

There were no reclassifications of amounts out of accumulated other comprehensive loss, as there have been no sales of securities or translation adjustments that impacted other comprehensive loss during the quarter. The tax impact of the changes in accumulated other comprehensive loss were not material.

 

Note 5 — Investments

 

Our short-term investments are all classified as available-for-sale. There were no sales of available-for-sale securities during the nine months ended September 30, 2016.

 

Available-for-sale securities as of the dates indicated consisted of the following (in thousands):

 

 

 

 

Gross unrealized losses and fair values of our investments in an unrealized loss position as of the dates indicated, aggregated by investment category and length of time that the security has been in a continuous loss position, were as follows (in thousands):

 

 

 

Expected maturities can differ from contractual maturities because borrowers may have the right to prepay obligations without prepayment penalties. The amortized cost and fair value of available-for-sale securities that had stated maturities as of September 30, 2016 are shown below by contractual maturity (in thousands):

 

 

Note 6 — Long-Term Debt and Line of Credit

 

Debt

 

In March 2015, we entered into a loan agreement with a financial institution for a $55,000 fixed-rate installment loan carrying an annual interest rate of 6.35%. The loan is payable in equal monthly installments and matures on April 2, 2020. The note is secured by the asset purchased.

 

Long-term debt consisted of the following (in thousands)

 

 

Future minimum principal payments due under long-term debt arrangements consist of the following (in thousands):

 

 

 

Line of Credit

 

In June 2012, we entered into a loan agreement with a financial institution. The loan agreement was amended in June 2015, (as amended, the “Loan Agreement”). The Loan Agreement provides for a total available credit line of $16.0 million. Under the Loan Agreement, we are allowed to draw advances not to exceed, at any time, $10.0 million as revolving loans. The total stand-by letters of credit issued under the Loan Agreement may not exceed the lesser of the $16.0 million credit line or the credit line minus all outstanding revolving loans. Revolving loans may be in the form of a base rate loan that bears interest equal to the prime rate or a Eurodollar loan that bears interest equal to the adjusted LIBOR rate plus 1.25%. Stand-by letters of credit are subject to customary fees and expenses for issuance or renewal. The unused portion of the credit facility is subject to a facility fee in an amount equal to 0.25% per annum of the average unused portion of the revolving line. The Loan Agreement also requires us to maintain a cash collateral balance equal to 101% of all outstanding advances and all outstanding stand-by letters of credit collateralized by the line of credit. The Loan Agreement matures in June 2018 and is collateralized by substantially all of our assets.

 

As of September 30, 2016 and December 31, 2015, there were no revolving loans drawn under the Loan Agreement. Stand-by letters of credit collateralized under the Loan Agreement totaled $3.6 million and $3.8 million as of September 30, 2016 and December 31, 2015, respectively. Total cash restricted related to these stand-by letters of credit totaled $3.6 million and $3.8 million as of September 30, 2016 and December 31, 2015, respectively.

 

We are subject to certain financial and administrative covenants under the Loan Agreement. As of September 30, 2016, we were in compliance with these covenants.

 

As of September 30, 2016, we also had a stand-by letter of credit at another financial institution for $0.2 million. Restricted cash related to this stand-by letter of credit totaled $0.2 million as of September 30, 2016.

 

Note 7 — Equity

 

Stock Repurchase Program

 

In January 2016, our Board of Directors authorized a stock repurchase program under which the Company, at the discretion of management, could repurchase up to $6.0 million in aggregate cost of our outstanding common stock through June 30, 2016 (the “January Authorization”). In May 2016, our Board of Directors rescinded the January Authorization and authorized a new stock repurchase program under which the Company, at the discretion of management, could repurchase up to $10.0 million in aggregate cost of our outstanding common stock through October 31, 2016 (the “May Authorization”). We account for stock repurchases using the cost method. Cost includes fees charged in connection with acquiring the outstanding common stock. As of September 30, 2016, 673,700 shares, at an aggregate cost of $4.1 million, had been repurchased under the January Authorization and 568,500 shares, at an aggregate cost of $5.3 million, had been repurchased under the May Authorization.

 

Stock-Based Compensation Expense

 

For the three and nine months ended September 30, 2016 and 2015, we recognized stock-based compensation expense related to employees and consultants as follows (in thousands):

 

 

Stock-based compensation in the three and nine months ended September 30, 2016 included expenses related to 31,659 options granted in the three months ended September 30, 2016 to new employees and a new member of the Board of Directors.

 

Stock-based compensation for the nine months ended September 30, 2015 included option modification expenses in connection with the resignation of the former Chief Executive Officer related to the accelerated vesting, extended vesting, and extended exercise period of options previously granted of approximately $1.3 million.

 

Stock-based compensation for the nine months ended September 30, 2016 included additional stock-based compensation expense of approximately $0.5 million in connection with the resignation of the former General Counsel related to the continued vesting of awards granted prior to his resignation.

 

 

Stock Option Plan

 

On June 23, 2016, our stockholders approved the 2016 Incentive Plan (the “Plan”). Prior to June 23, 2016, we maintained the Amended and Restated 2008 Equity Incentive Plan (the “Prior Plan”). Stock-based awards granted under the Plan and Prior Plan generally vest over four years and expire no more than ten years after the date of grant. Subject to adjustments as provided in the Plan, the number of shares of common stock initially authorized for issuance under the Plan is 4,441,083 (which consist of 3,830,000 new shares plus 611,083 shares that were authorized and unissued under the Prior Plan) plus up to 7,635,410 shares that were set aside for option awards granted under the Prior Plan that are subsequently forfeited. On July 27, 2016, we filed with the U.S. Securities and Exchange Commission a registration statement on Form S-8 with respect to the 4,441,083 shares issuable under the Plan. The Plan supersedes all previously issued stock incentive plans (including the Prior Plan) and will be the only available plan from which stock related awards may be granted.

 

Stock Option Activity

 

The following table summarizes the stock option activity under the Plan and includes options granted under all previous plans:

 

 

 

⁽¹⁾ Options that are expected to vest are net of estimated future option forfeitures in accordance with the provisions of ASC 718, “Compensation — Stock Compensation.”

⁽²⁾ The aggregate intrinsic value is calculated as the difference between the exercise price of the underlying options and the fair value of our common stock as of September 30, 2016 of $15.98 per share

  

As of September 30, 2016, total unrecognized compensation cost related to non-vested options, net of estimated forfeitures, was $6.9 million, which is expected to be recognized as an expense over a weighted average period of approximately 2.5 years.

 

Restricted Stock Unit Activity

 

The following table summarizes the restricted stock unit activity under the Plan and includes restricted stock units granted under all previous plans:

 

 

 

As of September 30, 2016, total unrecognized compensation cost related to non-vested restricted stock units, net of estimated forfeitures, was $1.3 million, which is expected to be recognized as an expense over a weighted average period of approximately 3.4 years.

 

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Note 8 — Income Taxes

 

The effective tax rate for the nine months ended September 30, 2016 and 2015 was 4.5% and (1.53%), respectively. As of December 31, 2015, a valuation allowance of approximately $21.4 million reduced our deferred income tax assets to the amount expected to be realized. The tax expense recognized for the nine months ended September 30, 2016, was primarily related to the tax basis amortization of goodwill and federal, state, and other taxes. The tax expenses were offset by a tax benefit related to losses in our Ireland subsidiary.

 

Note 9 — Commitments and Contingencies

 

Operating Lease Obligations

 

We lease facilities under fixed non-cancellable operating leases that expire on various dates through July 2021. Future minimum lease payments consist of the following (in thousands):

 

 

Product Warranty

 

The following table summarizes the activity related to the product warranty liability during the three and nine months ended September 30, 2016 and 2015 (in thousands):

 

 

Purchase Obligations

 

We enter into purchase order arrangements with our vendors. As of September 30, 2016, there were open purchase orders for which we had not yet received the related goods or services. These arrangements are subject to change based on our sales demand forecasts, and we have the right to cancel the arrangements prior to the date of delivery. As of September 30, 2016, we had approximately $1.2 million of cancellable open purchase order arrangements related primarily to materials and parts.

 

Additionally, we have entered into sale of goods agreements with two vendors for which the purchase orders have not yet been issued, but the Company has made a purchase obligation. The sale of goods agreements total $3.2 million.

 

Guarantees 

 

We enter into indemnification provisions under our agreements with other companies in the ordinary course of business, typically with customers. Under these provisions, we generally indemnify and hold harmless the indemnified party for losses suffered or incurred by the indemnified party as a result of our activities, generally limited to personal injury and property damage caused by our employees at a customer’s desalination plant in proportion to the employee’s percentage of fault for the accident. Damages incurred for such indemnifications would be covered by our general liability insurance to the extent of the policy limitations. We have not incurred material costs to defend lawsuits or settle claims related to these indemnification agreements. As a result, the estimated fair value of these agreements is not material. Accordingly, we have no liabilities recorded for these agreements as of September 30, 2016 and December 31, 2015.

 

 

In certain cases, we issue warranty and product performance guarantees to our customers for amounts generally no more than 10% of the total sales agreement to provide a form of security to the customer during the warranty period. These guarantees, generally in the form of stand-by letters of credit or bank guarantees secured by stand-by letters of credit, typically remain in place for periods ranging up to 24 months and in some cases up to 68 months, and relate to the underlying product warranty period. The stand-by letters of credit are collateralized by restricted cash. The $3.8 million in stand-by letters of credit outstanding at September 30, 2016 were collateralized by restricted cash of $3.8 million.

 

Litigation

 

The Company is named in and subject to various proceedings and claims in connection with our business. We are contesting the allegations in these claims, and we believe that there are meritorious defenses in each of these matters. The outcome of matters we have been and currently are involved in cannot be determined at this time, and the results cannot be predicted with certainty. There can be no assurance that these matters will not have a material adverse effect on our results of operations in any future period and a significant judgment could have a material adverse impact on our financial condition, results of operations and cash flows. We may in the future become involved in additional litigation in the ordinary course of our business, including litigation that could be material to our business. Based on currently available information and review with outside counsel, management does not believe that the currently known actions or threats against the Company will result in any material adverse effect on our financial condition, results of operations, or cash flows.

 

On September 10, 2014, the Company terminated the employment of its Senior Vice President, Sales, Borja Blanco, on the basis of breach of duty of trust and conduct leading to conflict of interest. On October 24, 2014, Mr. Blanco filed a labor claim against ERI Iberia in Madrid, Spain, challenging the fairness of his dismissal and seeking compensation (“Case 1”). A hearing was held on November 13, 2015, after which the labor court ruled that it did not have jurisdiction over the matter. Mr. Blanco has appealed. Based on currently available information and review with outside counsel, at this time, the Company has not determined that an award to Mr. Blanco is probable.

 

On November 24, 2014, Mr. Blanco filed a second action based on breach of contract theories in the same court as Case 1, but the cases are separate. In Case 2, Mr. Blanco seeks payment of an unpaid bonus, stock options, and non-compete compensation. The court ruled that this case is stayed until a final ruling is issued in Case 1. Based on currently available information and review with outside counsel, at this time, the Company has not determined that an award to Mr. Blanco is probable.

 

On January 20 and 27, 2015, two stockholder class action complaints were filed against the Company in the United States District Court of the Northern District of California, on behalf of Energy Recovery stockholders under the captions, Joseph Sabatino v. Energy Recovery, Inc. et al., Case No. 3:15-cv-00265 EMC, and Thomas C. Mowdy v. Energy Recovery, Inc, et al., Case No. 3:15-cv-00374 EMC. The complaints have now been consolidated under the caption, In Re Energy Recovery Inc. Securities Litigation, Case No. 3:15-cv-00265 EMC. The consolidated complaint alleges violations of Section 10(b), Rule 10b-5, and Section 20(a) of the Securities Exchange Act of 1934 based upon alleged public misrepresentations and seeks the recovery of unspecified monetary damages. On October 12, 2016, the Company and the attorneys representing the class reached an agreement in principle to settle all outstanding claims in the case. As part of the settlement agreement, the Company has agreed to pay the class an undisclosed sum, the entirety of which will be borne by the Company’s insurer. The settlement agreement is subject to approval by the United States District Court of the Northern District of California.

 

On January 27, 2016, a complaint was filed by the Company’s Former Chief Sales Officer, David Barnes, in the United States District Court for the Northern District of California under the caption, David Barnes v. Energy Recovery, Inc., et al. Case No. 3:16-cv-00477 EMC (“Barnes Lawsuit”), related to his separation from the Company and alleging numerous legal claims including, but not limited to, wrongful termination, breach of contracts, and negligent and/or intentional misrepresentations to induce Mr. Barnes to join the Company. Mr. Barnes is seeking to recover, among other things, relocation and business expenses, back pay, front pay, lost equity, contractual severance, emotional distress damages, punitive damages, damages under the California Private Attorneys General Act, attorneys’ fees, costs, and interest. The Company and Mr. Barnes have reached an agreement to settle all outstanding claims between the named parties to the Barnes Lawsuit. The United States District Court for the Northern District of California, in an Order, approved the Stipulation, Settlement and Order for Dismissal (“Stipulation for Dismissal”) proposed by the named parties, and both the Order and Stipulation for Dismissal are publicly available. Thus, the Barnes Lawsuit is now resolved and has been dismissed as set forth in the Order entered by the Court. Pursuant to the settlement, further details are confidential.

 

 

On February 18, 2016, a complaint captioned Goldberg v. Rooney, et al., HG 16804359, was filed in the Superior Court for the State of California, County of Alameda, naming as defendants Thomas Rooney, Alexander J. Buehler, Joel Gay, Ole Peter Lorentzen, Audrey Bold, Arve Hanstveit, Fred Olav Johannessen, Robert Yu Lang Mao, Hans Peter Michelet, Maria Elisabeth Pate-Cornell, Paul Cook, Olav Fjell, and Dominique Trempont (“Individual Defendants”) and naming the Company as a nominal defendant. The complaint is styled as a derivative action being brought on behalf of the Company and generally alleges breach of fiduciary duty, abuse of control, gross mismanagement, and unjust enrichment causes of action against the Individual Defendants. Based on currently available information and review with outside counsel, the Company is not able to estimate a potential loss, if any, due to the early stage of the matter.

 

On July 27, 2016, a complaint captioned Gerald McManiman v. Gay, et al., RG 16824960, was filed in the Superior Court for the State of California, County of Alameda, naming as defendants Joel Gay, Chris Gannon, Hans Peter Michelet, Alexander Buehler, Arve Hanstveit, Dominique Trempont, Robert Yu Lang Mao, Thomas S. Rooney, Jr., Borja Sanchez-Blanco, Audrey Bold, Paul M. Cook, Marie-Elisabeth Pate -Cornell, Fred Olav Johannessen (“Individual Defendants”) and naming the Company as a nominal defendant. The complaint is styled as a derivative action being brought on behalf of the Company and generally alleges breach of fiduciary duties and violations of laws against the Individual Defendants. Based on currently available information and review with outside counsel, the Company is not able to estimate a potential loss, if any, due to the early stage of the matter.

 

Note 10 — Business Segment and Geographic Information

 

We are an energy solutions provider to industrial fluid flow markets worldwide. We make industrial processes more operating and capital expenditure efficient. Our chief operating decision-maker (“CODM”) is the chief executive officer (“CEO”).

 

Our reportable operating segments consist of the Water Segment and the Oil & Gas Segment. These segments are based on the industries in which the products are sold, the type of energy recovery device sold, and the related products and services. The Water Segment consists of revenue associated with products sold for use in reverse osmosis water desalination, as well as the related identifiable expenses. The Oil & Gas Segment consists of product revenue associated with products sold for use in gas processing, chemical processing, and hydraulic fracturing and license and development revenue associated with hydraulic fracturing, as well as related identifiable expenses. Operating income for each segment excludes other income and expenses and certain expenses managed outside the operating segment. Costs excluded from operating income include various corporate expenses such as certain stock-based compensation expenses, income taxes, and other separately managed general and administrative expenses not related to the identified segments. Assets and liabilities are reviewed at the consolidated level by the CODM and are not accounted for by segment. The CODM allocates resources to and assesses the performance of each operating segment using information about its revenue and operating income (loss).

 

The following summarizes financial information by segment for the periods presented (in thousands):

 

 

 

 

The following geographic information includes net revenue to our domestic and international customers based on the customers’ requested delivery locations, except for certain cases in which the customer directed us to deliver our products to a location that differs from the known ultimate location of use. In such cases, the ultimate location of use, rather than the delivery location, is reflected in the table below (in thousands, except percentages):

 

 

*

Less than 1%.

**

Includes remaining countries not separately disclosed. No country in this line item accounted for more than 10% of our product revenue during the periods presented.

 

All of our long-lived assets were located in the United States at September 30, 2016 and December 31, 2015.

 

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Note 11 — Concentrations

 

Customers accounting for 10% or more of our accounts receivable and unbilled receivables were as follows:

 

 

Revenue from customers representing 10% or more of product revenue varies from period to period. For the periods indicated, customers representing 10% or more of product revenue were:

 

*

Less than 1%.

 

A single customer, Customer G, represents 100% of our license and development revenue for the three and nine months ended September 30, 2016. There was no license and development revenue recognized for the three or nine months ended September 30, 2015.

 

Vendors accounting for 10% or more of our accounts payable were as follows:

 

 

Note 12 — Fair Value Measurements

 

The authoritative guidance for measuring fair value provides a hierarchy that prioritizes the inputs to valuation techniques used in measuring fair value as follows:

 

Level 1 — Quoted prices (unadjusted) in active markets for identical assets or liabilities;

Level 2 — Inputs other than quoted prices included within Level 1 that are either directly or indirectly observable; and

Level 3 — Unobservable inputs in which little or no market activity exists, therefore requiring an entity to develop its own assumptions that market participants would use in pricing.

 

The carrying values of cash and cash equivalents, restricted cash, accounts receivable, unbilled receivables, accounts payable, and other accrued expenses approximate fair value due to the short-term maturity of those instruments. For our investments in available-for-sale securities, if quoted prices in active markets for identical investments are not available to determine fair value (Level 1), then we use quoted prices for similar assets or inputs other than quoted prices that are observable either directly or indirectly (Level 2). The investments included in Level 2 consist of corporate agency obligations.

 

The fair value of financial assets and liabilities measured on a recurring basis for the indicated periods was as follows (in thousands):

 

  

 

 

Note 13 — Related Party Transactions

 

In January 2016, the Company entered into a lease agreement with EMS USA, Inc. for the use of office space. The President and Chief Executive Officer of EMS USA, Inc. is also a member of the Board of Directors of the Company. The lease is for a term of ninety (90) days with continuation on a month-to-month basis thereafter, with each month being an “Additional Term.” The Company paid EMS USA, Inc. $1,098 and $5,268, respectively, related to this agreement during the three and nine months ended September 30, 2016. The lease was terminated as of July 2016.

 

In March 2016, the Company extended an employee loan to one of its employees for $21,786. The loan was repayable to the Company monthly over six months and was non-interest bearing. At September 30, 2016, the loan was fully paid and another employee loan was extended to this employee for $21,786. The new loan is repayable to the Company monthly over six months and is non-interest bearing.

 

Note 14 - Subsequent Events

 

See Note 9 – “Commitments and Contingencies”, under the caption “Litigation” for a discussion of litigation developments in October 2016.

 

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