UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549


FORM 10-Q

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

For the quarterly period ended: March 31, 2015

OR

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

For the transition period from to

Commission File Number: 000-19301

COMMUNICATION INTELLIGENCE CORPORATION
(Exact name of registrant as specified in its charter)

 
Delaware
 
94-2790442
 
 
(State or other jurisdiction of
 
(I.R.S. Employer
 
 
incorporation or organization)
 
Identification No.)
 

   275 Shoreline Drive, Suite 500, Redwood Shores, CA  94065-1413
          (Address of principal executive offices)                  (Zip Code)

(650) 802-7888
Registrant's telephone number, including area code

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
   

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

 
Yes
X
 
No
   

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

 
large accelerated filer
 
accelerated filer
 
non-accelerated filer
 
X
Smaller reporting Company

Indicate by check mark whether the registrant is a shell company (as defined in Section 12b-2 of the exchange Act)

 
Yes
   
No
X
 

Number of shares outstanding of the issuer's Common Stock, as of May 15, 2015: 234,307,542.
 



INDEX


 
Page No.
PART I.  FINANCIAL INFORMATION
 
Item 1.  Financial Statements
 
Condensed Consolidated Balance Sheets at March 31, 2015 (unaudited) andDecember 31, 2014
3
Condensed Consolidated Statements of Operations for the Three-Month Periods Ended March 31, 2015 and 2014 (unaudited)
4
Condensed Consolidated Statements of Comprehensive Loss for the Three-Month Periods Ended March 31, 2015 and 2014 (unaudited)
5
Condensed Consolidated Statements of Cash Flows for the Three-Month Periods Ended March 31, 2015 and 2014 (unaudited)
6
Notes to Unaudited Condensed Consolidated Financial Statements
8
Item 2.  Management's Discussion and Analysis of Financial Condition and Results of Operations
15
Item 3.  Quantitative and Qualitative Disclosures About Market Risk
18
Item 4.  Controls and Procedures
19
PART II.  OTHER INFORMATION
 
Item 1.    Legal Proceedings
19
Item 1A. Risk Factors
19
Item 2.    Unregistered Sale of Securities and Use of Proceeds
19
Item 3.    Defaults Upon Senior Securities
20
Item 4.    Mine Safety Disclosures
20
Item 5.    Other Information
20
Item 6.    Exhibits
 
(a) Exhibits
20
Signatures
23

2

PART I–FINANCIAL INFORMATION

Item 1.  Financial Statements.
Communication Intelligence Corporation
Condensed Consolidated Balance Sheets
 (In thousands, except par value amounts)

   
March 31,
   
December 31,
 
   
2015
   
2014
 
Assets
 
Unaudited
     
Current assets:
       
Cash and cash equivalents
 
$
1,289
   
$
775
 
Accounts receivable, net of allowance of $40 at March 31, 2015 and $22 at December 31, 2014
   
254
     
122
 
Prepaid expenses and other current assets
   
104
     
80
 
Total current assets
   
1,647
     
977
 
Property and equipment, net
   
13
     
11
 
Patents, net
   
846
     
933
 
Other assets
   
29
     
29
 
Total assets
 
$
2,535
   
$
1,950
 
                 
Liabilities and Equity (Deficit)
               
Current liabilities:
               
Accounts payable
 
$
432
   
$
328
 
Accrued compensation
   
282
     
293
 
Other accrued liabilities
   
377
     
338
 
Deferred revenue
   
433
     
257
 
Total current liabilities
   
1,524
     
1,216
 
Deferred revenue long-term
   
595
     
700
 
Deferred rent
   
30
     
41
 
Derivative liability
   
2
     
18
 
Other long-term liabilities
   
28
     
28
 
Total liabilities
   
2,179
     
2,003
 
Commitments and contingencies
               
Equity (Deficit):
               
Series A-1 Preferred Stock, $.01 par value; 2,000 shares authorized; 892 and 875 shares issued and outstanding at March 31, 2015 and December 31, 2014, respectively ($892 liquidation preference at March 31, 2015)
   
892
     
875
 
Series B Preferred Stock, $.01 par value; 14,000 shares authorized; 12,554 and 12,251 shares issued and outstanding at March 31, 2015 and December 31, 2014, respectively ($18,830 liquidation preference at March 31, 2015)
   
10,683
     
10,381
 
Series C Preferred Stock, $.01 par value; 9,000 shares authorized; 5,097 and 4,975 shares issued and outstanding at March 31, 2015 and December 31, 2014, respectively ($7,646 liquidation preference at March 31, 2015)
   
5,675
     
5,553
 
Series D-1 Preferred Stock, $.01 par value; 10,000 shares authorized; 7,178 and 5,800 shares issued and outstanding at March 31, 2015 and December 31, 2014, respectively ($7,178 liquidation preference at March 31, 2015)
   
6,119
     
5,139
 
Series D-2 Preferred Stock, $.01 par value; 10,000 shares authorized; 5,921 and 5,720 shares issued and outstanding at March 31, 2015 and December 31, 2014, respectively ($5,921 liquidation preference at March 31, 2015)
   
4,813
     
4,671
 
Common Stock, $.01 par value; 2,000,000 shares authorized; 234,308 shares issued and outstanding at March 31, 2015 and December 31, 2014
   
2,407
     
2,407
 
Treasury shares, 6,500 shares at March 31, 2015 and December 31, 2014
   
(325
)
   
(325
)
Additional paid in capital
   
94,844
     
94,995
 
Accumulated deficit
   
(124,202
)
   
(123,199
)
Accumulated other comprehensive loss
   
(14
)
   
(14
)
Total CIC stockholders' equity
   
892
     
483
 
Non-Controlling interest
   
(536
)
   
(536
)
Total equity (deficit)
   
356
     
(53
)
Total liabilities and equity (deficit)
 
$
2,535
   
$
1,950
 

See accompanying notes to these Condensed Consolidated Financial Statements
3

Communication Intelligence Corporation
Condensed Consolidated Statements of Operations
Unaudited
(In thousands, except per share amounts)

   
Three Months Ended
 
   
March 31,
 
   
2015
   
2014
 
         
Revenue:
       
Product
 
$
230
   
$
128
 
Maintenance
   
216
     
173
 
Total revenue
   
446
     
301
 
                 
Operating costs and expenses:
               
                 
Cost of sales:
               
Product
   
111
     
4
 
Maintenance
   
12
     
54
 
Research and development
   
522
     
540
 
Sales and marketing
   
298
     
308
 
General and administrative
   
521
     
463
 
Total operating costs and expenses
   
1,464
     
1,369
 
                 
Loss from operations
   
(1,018
)
   
(1,068
)
                 
Other income (expense), net
   
(1
)
   
2
 
Gain on derivative liability
   
16
     
5
 
Net loss
   
(1,003
)
   
(1,061
)
                 
Accretion of beneficial conversion feature, Preferred Stock:
               
Related party
   
(458
)
   
(73
)
Other
   
(69
)
   
(301
)
                 
Preferred stock dividends:
               
Related party
   
(354
)
   
(328
)
Other
   
(376
)
   
(293
)
Income tax
   
     
 
Net loss before non-controlling interest
   
(2,260
)
   
(2,056
)
Net loss attributable to non-controlling interest
   
     
 
Net loss attributable to common stockholders
 
$
(2,260
)
 
$
(2,056
)
Basic and diluted net loss per common share
 
$
(0.01
)
   
(0.01
)
Weighted average common shares outstanding, basic and diluted
   
234,308
     
232,560
 

See accompanying notes to these Condensed Consolidated Financial Statements
4


Communication Intelligence Corporation
Condensed Consolidated Statements of Comprehensive Loss
Unaudited
(In thousands, except per share amounts)

   
Three Months Ended
 
   
March 31,
 
   
2015
   
2014
 
         
Net loss
 
$
(1,003
)
 
$
(1,061
)
Other comprehensive loss, net of tax:
               
Foreign currency translation adjustment
   
     
 
Total comprehensive loss
 
$
(1,003
)
 
$
(1,061
)
                 















See accompanying notes to these Condensed Consolidated Financial Statements
5

Communication Intelligence Corporation
Condensed Consolidated Statements of Cash Flows
Unaudited
(In thousands)
   
Three Months Ended
March 31,
 
   
2015
   
2014
 
Cash flows from operating activities:
       
Net loss
 
$
(1,003
)
 
$
(1,061
)
Adjustments to reconcile net loss to net cash
used for operating activities:
               
Depreciation and amortization
   
89
     
92
 
Stock-based compensation
   
213
     
92
 
Gain on derivative liability
   
(16
)
   
(5
)
Changes in operating assets and liabilities:
               
   Accounts receivable
   
(132
)
   
132
 
   Prepaid expenses and other assets
   
(24
)
   
(1
)
   Accounts payable
   
104
     
(142
)
   Accrued compensation
   
(11
)
   
(4
)
   Other accrued and long-term liabilities
   
28
     
(3
)
   Deferred revenue
   
71
     
(33
)
Net cash used for operating  activities
   
(681
)
   
(933
)
                 
Cash flows from investing activities:
Acquisition of property and equipment
   
(5
)
   
(4
)
Net cash used for investing activities
   
(5
)
   
(4
)
                 
Cash flows from financing activities:
               
Proceeds from issuance of Series D preferred Stock, net of issuance costs of $33 and $51, respectively
   
1,200
     
1,139
 
Net cash provided by financing activities
   
1,200
     
1,139
 
                 
Effect of exchange rate changes on cash and cash equivalents
   
     
 
                 
Net increase in cash and cash equivalents
   
514
     
202
 
Cash and cash equivalents at beginning of period
   
775
     
945
 
Cash and cash equivalents at end of period
 
$
1,289
   
$
1,147
 



See accompanying notes to these Condensed Consolidated Financial Statements

6

Communication Intelligence Corporation
Condensed Consolidated Statements of Cash Flows (Continued)
Unaudited
(In thousands)

   
Three Months Ended
March 31,
 
   
2015
   
2014
 
Supplementary disclosure of cash flow information
       
Interest paid
 
$
1
   
$
 
Income taxes paid
   
     
 
                 
Non-cash financing and investing transactions:
               
Dividends on Preferred Stock
 
$
730
   
$
621
 
Accretion of beneficial conversion feature on issuance of convertible Preferred Stock
 
$
498
   
$
306
 
Accretion of beneficial conversion feature on issuance of  Preferred Stock dividends
 
$
29
   
$
68
 








See accompanying notes to these Condensed Consolidated Financial Statements


7

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)
 
1. Nature of business and summary of significant accounting policies

Nature of Business

Communication Intelligence Corporation and its subsidiary (the "Company" or "CIC") is a leading provider of digital transaction management (DTM) software enabling fully digital (paperless) business processes. The Company's solutions encompass a wide array of functionality and services, including electronic signatures, biometric authentication and simple-to-complex workflow management. These solutions are available across virtually all enterprise, desktop and mobile environments as a seamlessly integrated platform for both ad-hoc and fully automated transactions. The Company's platform can be deployed both on-premise and as a cloud-based service, with the ability to easily transition between deployment models. To date, the Company primarily has delivered its solutions to channel partners and end-user customers in the financial services industry. The Company's products include SignatureOne ® Ceremony™ Server, the iSign ® suite of products and services, including iSign ® Enterprise and iSign ® Console™, and Sign-it ® programs.

Basis of Presentation

The financial information contained herein should be read in conjunction with the Company's consolidated audited financial statements and notes thereto included in its Annual Report on Form 10-K for the year ended December 31, 2014.

The accompanying unaudited condensed consolidated financial statements of the Company have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission. Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America ("GAAP") for complete consolidated financial statements. In the opinion of management, the unaudited condensed consolidated financial statements included in this quarterly report reflect all adjustments (consisting only of normal recurring adjustments) that the Company considers necessary for a fair presentation of its financial position at the dates presented and the Company's results of operations and cash flows for the periods presented. The Company's interim results are not necessarily indicative of the results to be expected for the entire year.

Going Concern

The accompanying unaudited condensed consolidated financial statements have been prepared assuming that the Company will continue as a going concern. The Company has incurred significant cumulative losses since its inception and, at March 31, 2015 the Company's accumulated deficit was $124,202. The Company has primarily met its working capital needs through the sale of debt and equity securities. As of March 31, 2015, the Company's cash balance was $1,289. These factors raise substantial doubt about the Company's ability to continue as a going concern.

There can be no assurance that the Company will be successful in securing adequate capital resources to fund planned operations or that any additional funds will be available to the Company when needed, or if available, will be available on favorable terms or in amounts required by the Company. If the Company is unable to obtain adequate capital resources to fund operations, it may be required to delay, scale back or eliminate some or all of its operations, which may have a material adverse effect on the Company's business, results of operations and ability to operate as a going concern. The unaudited condensed consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
8

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)

1. Nature of business and summary of significant accounting policies (continued)

Accounting Changes and Recent Accounting Pronouncements

Accounting Standards Issued But Not Yet Adopted

Accounting standards that have been issued or proposed by the FASB or other standards-setting bodies are not expected to have a material impact on the Company's financial position, results of operations and cash flows.


2. Concentrations

The following table summarizes accounts receivable and revenue concentrations:

 
Accounts Receivable
As of March 31,
Total Revenue
for the three months
ended March 31,
 
2015
2014
2015
2014
Customer #1
35%
27%
Customer #2
28%
32%
15%
12%
Customer #3
12%
Customer #4
26%
Customer #5
18%
22%
Total concentration
63%
76%
42%
46%

3. Patents

The Company performs an intangible asset impairment analysis at least annually or whenever circumstances or events indicate such assets might be impaired. The Company would recognize an impairment charge in the event the net book value of such assets exceeded the future undiscounted cash flows attributable to such assets.

Management completed an analysis of the Company's patents as of December 31, 2014. Based on that analysis, the Company concluded that no impairment of the carrying value of the patents existed. The Company believes that no events or circumstances changed during the three months ended March 31, 2015 that would impact this conclusion .

Amortization of patent costs was $87 for the three months ended March 31, 2015 and $89 for the three months ended March 31, 2014, respectively .

Intangible Assets

The following table summarizes intangible assets:

   
March 31, 2015
   
December 31, 2014
 
   
Carrying Amount
   
Accumulated Amortization
   
Carrying Amount
   
Accumulative Amortization
 
                 
Amortizable intangible assets:
               
Patents
 
$
6,745
   
$
(5,899
)
 
$
6,745
   
$
(5,812
)

9

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)


4. Net loss per share

The Company calculates basic net loss per share based on the weighted average number of shares outstanding, and when applicable, diluted income per share, which is based on the weighted average number of shares and potential dilutive shares outstanding.

The following table lists shares and warrants that were excluded from the calculation of dilutive earnings per share as the exercise of such options and warrants and the conversion of such preferred shares would be anti-dilutive:

 
For the three Months Ended
 
March 31, 2015
March 31, 2014
     
Stock options
107,645
72,037
Warrants
230,012
94,240
Preferred shares as if converted
   
Series A-1 Preferred Stock
6,375
7,513
Series B Preferred Stock
289,722
17,065
Series C Preferred Stock
226,555
205,294
Series D-1 Preferred Stock
319,033
191,189
Series D-2 Preferred Stock
118,428
106,069

5. Equity

Stock-based compensation expense is based on the estimated grant date fair value of the portion of stock-based payment awards that are ultimately expected to vest during the period.  The grant date fair value of stock-based awards to employees and directors is calculated using the Black Scholes Merton valuation model.

Forfeitures of stock-based payment awards are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. The estimated average forfeiture rate for the three months ended March 31, 2015 and 2014 was approximately 7.57% and 9.76%, respectively, based on historical data.

Valuation and Expense Information:

The weighted-average fair value of stock-based compensation is based on the Black Scholes Merton valuation model. Forfeitures are estimated and it is assumed no dividends will be declared.  The estimated fair value of stock-based compensation awards to employees is amortized over the vesting period of the options. The fair value calculations are based on the following assumptions:

   
Three Months Ended
March 31, 2015
Three Months Ended
March 31, 2014
Risk free interest rate
 
0.04% – 3.73%
0.04% – 4.92%
Expected term (years)
 
3.26 – 7.00
3.33 – 6.21
Expected volatility
 
91.99% – 198.38%
91.99% – 198.38%
Expected dividends
 
None
None

The Company granted 35,633 stock options during the three months ended March 31, 2015 at a weighted average exercise price of $0.0225 per share. No stock options were exercised during the three month period ended March 31, 2015.
10

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)


5. Equity (continued)

The Company granted 2,500 stock options during the three months ended March 31, 2014 at a weighted average exercise price of $0.027 per share. No stock options were exercised during the month period ended March 31, 2014.

The following table summarizes the allocation of stock-based compensation expense related to stock option grants for the three months ended March 31:

   
2015
   
2014
 
Research and development
 
$
65
   
$
27
 
Sales and marketing
   
52
     
12
 
General and administrative
   
80
     
48
 
Director
   
16
     
5
 
Total stock-based compensation
 
$
213
   
$
92
 

A summary of option activity under the Company's plans as of March 31, 2015 and 2014 is as follows:

   
2015
   
2014
 
 
 
 
 
Options
 
Shares
   
Weighted Average Exercise Price
   
Weighted Average Remaining Contractual Term
   
Aggregate Intrinsic Value
   
Shares
   
Weighted Average Exercise Price
   
Weighted Average Remaining Contractual Term
   
Aggregate Intrinsic Value
 
Outstanding at January 1
   
72,012
   
$
0.04
             
69,537
   
$
0.05
         
Granted
   
35,633
   
$
0.02
             
2,500
   
$
0.03
       
$
7
 
Exercised
   
   
$
             
   
$
-
             
Forfeited or expired
   
   
$
             
   
$
             
Outstanding at March 31
   
107,645
   
$
0.04
     
4.87
         
72,037
   
$
0.05
     
4.85
   
$
7
 
Vested and expected to vest at March 31
   
104,018
   
$
0.04
     
4.82
   
$
     
65,007
   
$
0.05
     
4.41
   
$
7
 
Exercisable at March 31
   
59,733
   
$
0.05
     
3.67
             
48,445
   
$
0.05
     
5.05
   
$
 

The following table summarizes significant ranges of outstanding and exercisable options as of March 31, 2015:

   
Options Outstanding
   
Options Exercisable
 
Range of Exercise Prices
   
Number Outstanding
   
Weighted Average Remaining Contractual Term (in years)
   
Weighted Average Exercise Price
   
Number Outstanding
   
Weighted Average Exercise Price
 
$
0.02 – $0.50
     
107,645
     
4.87
   
$
0.04
     
59,733
   
$
0.05
 

11

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)

5. Equity (continued)

A summary of the status of the Company's non-vested shares as of March 31, 2015 is as follows:

 
 
Non-vested Shares
 
Shares
   
Weighted Average
Grant-Date
Fair Value
 
 
Non-vested at January 1, 2015
   
14,954
   
$
0.04
 
Granted
   
35,633
   
$
0.02
 
Exercised
   
   
$
 
Forfeited
   
   
$
 
Vested
   
(2,675
)
 
$
0.04
 
Non-vested at March 31, 2015
   
47,912
   
$
0.03
 

As of March 31, 2015, there was $592 of total unrecognized compensation expense related to non-vested stock-based compensation arrangements granted under the plans.  The unrecognized compensation expense is expected to be realized over a weighted average period of 2.95 years.

Preferred Stock

Information with respect to the classes of Preferred Stock as of March 31, 2015 is as follows:

Class of Preferred Stock
 
Annual Dividend
 
Annual Dividend Payable, in Cash or In Kind
 
Liquidation Preference
   
Conversion Price
   
Total Preferred Shares Outstanding
   
Common Shares to be issued if Fully Converted
 
                       
Series A-1
   
8
%
Quarterly in Arrears
 
$
1.00
   
$
0.1400
     
892
     
6,375
 
Series B
   
10
%
Quarterly in Arrears
 
$
1.50
   
$
0.0433
     
12,554
     
289,722
 
Series C
   
10
%
Quarterly in Arrears
 
$
1.50
   
$
0.0225
     
5,097
     
226,555
 
Series D-1
   
10
%
Quarterly in Arrears
 
$
1.00
   
$
0.0225
     
7,178
     
319,033
 
Series D-2
   
10
%
Quarterly in Arrears
 
$
1.00
   
$
0.0500
     
5,921
     
118,428
 

Information with respect to dividends issued on the Company's Preferred stock for the period ended March 31 is as follows:

   
March 31,
   
March 31,
 
   
2015
   
2014
   
2015
   
2014
 
   
Dividends
   
Beneficial Conversion Feature Related to dividends
 
Series A-1
 
$
17
   
$
20
   
$─
   
$─
 
Series B
   
302
     
274
   
   
 
Series C
   
123
     
111
     
13
     
37
 
Series D-1
   
145
     
93
     
16
     
31
 
Series D-2
   
143
     
123
   
   
 
Total
 
$
730
   
$
621
   
$
29
   
$
68
 

12

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)
5. Equity (continued)

Series D Preferred Stock

On February 7, 2014, the Company sold for $733 in cash, net of a $47 administrative fee paid in cash to SG Phoenix and a nonrelated third party, 520 Shares of Series D-1 preferred Stock and 260 shares of Series D-2 Preferred Stock. The investors received one hundred percent (100%) warrant coverage. These warrants are immediately exercisable and expire December 31, 2016. The warrants are exercisable in whole or in part and contain a cashless exercise provision.

On March 6, 2014, the Company sold for $406 in cash, net of $4 in administrative fees paid in cash to an unrelated third party, 273 Shares of Series D-1 preferred Stock and 137 shares of Series D-2 Preferred Stock. The investors received one hundred percent (100%) warrant coverage. These warrants are immediately exercisable and expire December 31, 2016. The warrants are exercisable in whole or in part and contain a cashless exercise provision.

SG Phoenix received warrants to purchase 3,000 shares of Common stock, and two unrelated parties received warrants to purchase an aggregate of 1,600 shares of Common Stock in payment of administrative and finder's fees associated with the financings, in addition to the cash payments discussed above. These warrants are immediately exercisable and expire three (3) years from the date of issuance. The warrants are exercisable in whole or in part and contain a cashless exercise provision.

On March 24, 2015, the Company sold for $1,200 in cash, net of $33 in administrative fees paid in cash to SG Phoenix, 1,233 Shares of Series D-1 preferred Stock. The investors received 27,400 warrants, immediately exercisable into Common Stock of the Company at $0.0225 per share. The warrants expire March 23, 2018. The Company ascribed a value of $366 to the warrants using the Black Scholes Merton pricing model. See the warrant table below for more detail. The warrants are exercisable in whole or in part and contain a cashless exercise provision.

Warrants

On February 23, 2015, the Company and Venture Champion Asia Limited, an affiliate of IGC Global Limited, mutually agreed to terminate the $2,000 Credit Agreement signed in May 2014. At the time of the termination of the Credit Agreement, no amount was owed by the Company under the Credit Agreement, and contemporaneously with the termination of the Credit Agreement, the 10,909 warrants were likewise terminated.

A summary of the warrant activity is as follows:

   
March 31, 2015
   
March 31, 2014
 
   
Warrants
   
Weighted Average Exercise Price
   
Warrants
   
Weighted Average Exercise Price
 
                 
Outstanding at beginning of period
   
213,521
   
$
0.0289
     
77,155
   
$
0.0289
 
Issued
   
27,400
   
$
0.0225
     
21,418
   
$
0.0225
 
Expired/Canceled
   
(10,909
)
 
$
     
(4,333
)
 
$
0.0225
 
Outstanding at end of period
   
230,012
   
$
0.0277
     
94,240
   
$
0.0289
 
Exercisable at end of period
   
230,012
   
$
0.0277
     
94,240
   
$
0.0289
 

13

Communication Intelligence Corporation
Notes to Unaudited Condensed Consolidated Financial Statements
(In thousands, except per share amounts)

5. Equity (continued)

A summary of the status of the warrants outstanding and exercisable as of March 31, 2015 is as follows:

Number of Warrants
   
Weighted Average Remaining Life
   
Weighted Average Exercise Price per share
 
         
 
27,400
     
3.00
   
$
0.0225
 
 
193,968
     
1.77
   
$
0.0275
 
 
8,644
     
0.28
   
$
0.0500
 
 
230,012
     
1.87
   
$
0.0277
 



14

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
Forward Looking Statements

Certain statements contained in this quarterly report on Form 10-Q, including, without limitation, statements containing the words "believes", "anticipates", "hopes", "intends", "expects", and other words of similar import, constitute "forward looking" statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements involve known and unknown risks, uncertainties and other factors which may cause actual events to differ materially from expectations.  Such factors include those set forth in the Company's Annual Report on Form 10-K for the year ended December 31, 2014, including the following:

· Technological, engineering, manufacturing, quality control or other circumstances that could delay the sale or shipment of products;
· Economic, business, market and competitive conditions in the software industry and technological innovations that could affect the Company's business;
· The Company's inability to protect its trade secrets or other proprietary rights, operate without infringing upon the proprietary rights of others and prevent others from infringing on the proprietary rights of the Company; and
· General economic and business conditions and the availability of sufficient financing.

Except as otherwise required by applicable laws, the Company undertakes no obligation to publicly update or revise any forward-looking statements, as a result of new information, future events or otherwise.

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

The following discussion and analysis should be read in conjunction with the Company's unaudited condensed consolidated financial statements and notes thereto included in Part 1, Item 1 of this quarterly report on Form 10-Q and "Management's Discussion and Analysis of Financial Condition and Results of Operations" set forth in the Company's Annual report on Form 10-K for the fiscal year ended December 31, 2014.

Overview

The Company is a leading supplier of digital transaction management (DTM) software enabling the paperless, secure and cost-effective management of document-based transactions. CIC's solutions encompass a wide array of functionality and services, including electronic signatures, biometric authentication and simple-to-complex workflow management. These solutions are available across virtually all enterprise, desktop and mobile environments as a seamlessly integrated platform for both ad-hoc and fully automated transactions. CIC's platform can be deployed both on-premise and as a cloud-based service, with the ability to easily transition between deployment models.

The Company was incorporated in Delaware in October 1986. Except for the year ended December 31, 2004, in each year since its inception the Company has incurred losses. For the two-year period ended December 31, 2014, net losses attributable to common stockholders aggregated approximately $15,478, and, at March 31, 2015, the Company's accumulated deficit was approximately $124,202.

For the three months ended March 31, 2015, total revenue was $446, an increase of $145, or 48%, compared to total revenue of $301 in the prior year period. The increase in revenue is primarily attributable to an increase in the Company's product sales for the quarter.

For the three months ended March 31, 2015, the loss from operations was $1,018, a decrease of $50, or 5%, compared with a loss from operations of $1,068 in the prior year period. The decrease in the loss from operations is primarily attributable to the increase of $145, or 48%, in revenue, partially offset by an increase of $95, or 7%, in operating expenses including cost of sales, compared to the prior year period.  The beneficial conversion feature on the Company's Preferred Stock with an accounting conversion price less than the closing market price on the issuance date (Series C and Series D-1 Preferred Stock issuances and shares issued as dividends in kind), for the three months ended March 31, 2015, was $527, an increase of $153, or 41%, compared to a beneficial conversion feature of $374 in the prior year period. The increase is due primarily to the closing of a Series D Preferred Stock financing round in March 2015.

15

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
Critical Accounting Policies and Estimates
 
Refer to Item 7, "Management Discussion and Analysis of Financial Condition and Results of Operations" in the Company's 2014 Form 10-K.

Effect of Recent Accounting Pronouncement

In the first quarter of 2015, the adoption of accounting standards had no material impact on our financial position, results of operations or cash flows.

Other accounting standards that have been issued or proposed by the FASB or other standards-setting bodies are not expected to have a material impact on our financial position, results of operations and cash flows.

Results of Operations

Revenue

For the three months ended March 31, 2015, product revenue was $230, an increase of $102, or 80%, compared to product revenue of $128 in the prior year period. The increase in product revenue is primarily due to the timing of the Company's sales opportunities for the quarter. For the three months ended March 31, 2015, maintenance revenue was $216, an increase of $43, or 25%, compared to maintenance revenue of $173 in the prior year period. The increase in maintenance revenue is primarily due to new maintenance contracts on product revenue recognized in the fourth quarter of 2014.

Cost of Sales

For the three months ended March 31, 2015, cost of sales was $123, an increase of $65, or 112%, compared to cost of sales of $58 in the prior year period. The increase in cost of sales is primarily attributable to an increase in direct engineering costs associated with non-recurring engineering product activities compared to the prior year period.

Operating expenses

Research and Development Expenses

For the three months ended March 31, 2015, research and development expense was $522, a decrease of $18, or 3%, compared to research and development expense of $540 in the prior year period. Research and development expenses consist primarily of salaries and related costs, outside engineering, maintenance items, and allocated facilities expenses. The decrease is primarily due to an increase in costs allocated to cost of sales of $80, or 138%, compared to the prior year. Other engineering expenses, including payroll and related expense travel, services and subscriptions and allocated facilities expense, increased $61, or 10%, compared to the prior year period, due to an increase in the use of outside engineering services.

Sales and Marketing Expenses

For the three months ended March 31, 2015, sales and marketing expense was $298, a decrease of $10, or 3%, compared to $308 in the prior year period. The decrease in sales and marketing expenses was due to a decrease of $48, or 67%, in general overhead expenses including facilities allocation, partially offset by an increase in salaries and related costs, commissions on increased sales and professional services of $38, or 16%, compared to the prior year period .
16

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)

General and Administrative Expenses

For the three months ended March 31, 2015, general and administrative expense was $521, an increase of $58, or 13%, compared to general and administrative expense of $463 in the prior year period. The increase was primarily due to an increase of $34, or 42%, in stock compensation expense related to options grants to employees and administrative consultants, and to increases in other general corporate expenses of $25, or 7%, primarily related to stock option compensation expense to outside directors and allocated facilities expenses, compared to the prior year period.

Other income and expense

Other expense for the three months ended March 31, 2015 was $1, a decrease of $3, or 150%, compared to other income of $2 in the prior year period. The decrease was due to payments received in the prior year period for interest billed on past due accounts receivable during the prior year period.

For the three months ended March 31, 2015, the gain on derivative liability was $16, an increase of $11, or 220%, compared to the gain on derivative liability of $5 in the prior year period. The increase in the gain on derivative liability is primarily due to the decrease in the number of outstanding derivatives and shorter remaining lives of the derivatives at March 31, 2015 compared to the prior year period.

For the three months ended March 31, 2015, accretion of the beneficial conversion feature on the Company's Preferred Stock, with an accounting conversion price less than the closing market price on the issuance date (Series C and Series D-1 Preferred Stock), that was issued in the Series D Preferred Stock financing in March 2015 (see Liquidity and Capital Resources), as well as dividends issued in kind was $527, an increase of $153, or 41%, compared to $374 in the prior year period. The increase is due to the financing mentioned above. The accretion of the beneficial conversion feature on the Company's Series C and Series D-1 Preferred Stock that were issued as dividends in kind and in the Series D financing that were associated with related parties at March 31, 2015, was $458 and the non-related party expense was $69, compared to $73 and $301, in the prior year period.

Liquidity and Capital Resources

At March 31, 2015, cash and cash equivalents totaled $1,289, compared to cash and cash equivalents of $775 at December 31, 2014. The increase in cash was primarily due to cash provided by financing activities of $1,200, partially offset by cash used in operating activities of $681 and cash used in investing activities of $5. At March 31, 2015, total current assets were $1,647, compared to total current assets of $977 at December 31, 2014. At March 31, 2015, the Company's principal sources of funds included its cash and cash equivalents aggregating $1,289.

At March 31, 2015, accounts receivable net, was $254, an increase of $132, or 108%, compared to accounts receivable net of $122 at December 31, 2014. The increase is due primarily to the increase in product sales during the latter half of the first quarter ended March 31, 2015.

At March 31, 2015, prepaid expenses and other current assets were $104, an increase of $24, or 30%, compared to prepaid expenses and other current assets of $80 at December 31, 2014. The increase is due primarily to the prepayment of the office rent for April 2015.

At March 31, 2015, accounts payable were $432, an increase of $104, or 32%, compared to accounts payable of $328 at December 31, 2014. The increase is due primarily to professional service and engineering fees incurred in the first quarter of 2015. At March 31, 2015, accrued compensation was $282, a decrease of $11, or 4%, compared to accrued compensation of $293 at December 31, 2014. The decrease is due primarily to the payment of accrued commission on a large maintenance renewal contract that occurred in December 2014.

At March 31, 2015, total current liabilities were $1,524, an increase of $308, or 25%, compared to total current liabilities of $1,216 at December 31, 2014. At March 31, 2015, current deferred revenue was $433, an increase of $176, or 68%, compared to current deferred revenue of $257 at December 31, 2014. Deferred revenue primarily reflects advance payments for maintenance fees from the Company's licensees that are generally recognized as revenue
 
17

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
 by the Company when all obligations are met or over the term of the maintenance agreement, whichever is longer. Deferred revenue is recorded when the Company receives advance payment from its customers.

For the three months ended March 31, 2015, the Company exercised its option to pay in kind the accrued dividends on Preferred Stock. For the three months ended March 31, 2015, the Company issued an aggregate of 17 shares of Series A-1 Preferred Stock, 302 shares of Series B Preferred Stock, 123 shares of Series C Preferred Stock, 145 shares of Series D-1 Preferred Stock and 143 shares of Series D-2 Preferred Stock in payment of dividends.

On February 23, 2015, the Company and Venture Champion Asia Limited, an affiliate of IGC Global Limited, mutually agreed to terminate the $2,000 Credit Agreement signed in May 2014. At the time of the termination of the Credit Agreement, no amount was owed by the Company under the Credit Agreement, and contemporaneously with the termination of the Credit Agreement, the 10,909 warrants were likewise terminated.

On March 24, 2015, the Company sold for $1,200 in cash, net of $33 in administrative fees paid in cash to SG Phoenix, 1,233 Shares of Series D-1 preferred Stock. The investors received 27,400 warrants, immediately exercisable into Common Stock of the Company at $0.0225 per share. The warrants expire March 23, 2018. The Company ascribed a value of $366 to the warrants using the Black Scholes Merton pricing model. The warrants are exercisable in whole or in part and contain a cashless exercise provision.

The Company is using the funds received from the above financing for working capital and general corporate purposes.

The Company incurred $1 of interest expense and no amortization of debt discount or deferred financing costs for the three months ended March 31, 2015 and 2014.

The Company had the following material commitments as of March 31, 2015:

                 
Contractual obligations
 
Total
   
2015
   
2016
   
Thereafter
 
Operating lease commitments (1)
 
$
470
   
$
220
   
$
250
   
$
-
 

1. The Company extended the lease on its offices in April 2010.  The base rent decreased by approximately 6% in November 2011 and will increase by approximately 3% per annum over the term of the new lease, which expires on October 31, 2016.

The Company has experienced recurring losses from operations that raise a substantial doubt about its ability to continue as a going concern. There can be no assurance that the Company will have adequate capital resources to fund planned operations or that any additional funds will be available to it when needed, or if available, will be available on favorable terms or in amounts required by it. If the Company is unable to obtain adequate capital resources to fund operations, it may be required to delay, scale back or eliminate some or all of its operations, which may have a material adverse effect on the Company's business, results of operations and ability to operate as a going concern.

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

Interest Rate Risk

The Company did not enter into any short-term security investments during the three months ended March 31, 2015.

Foreign Currency Risk

From time to time, the Company makes certain capital equipment or other purchases denominated in foreign currencies. As a result, the Company's cash flows and earnings are exposed to fluctuations in interest rates and foreign currency exchange rates. The Company attempts to limit these exposures through operational strategies and generally has not hedged currency exposures. During the three months ended March 31, 2015 and 2014, foreign currency translation gains and losses were insignificant.
18

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)


Item 4. Controls and Procedures .

Disclosure Controls and Procedures

The Company carried out an evaluation as of the end of the period covered by this report, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of our disclosure controls and procedures pursuant to paragraph (b) of Rule 13a-15 and 15d-15 under the Exchange Act of 1934 (the "Exchange Act"). Based on that evaluation and because of the material weaknesses in our internal control over financial reporting described below, the Chief Executive Officer and the Chief Financial Officer have concluded that our disclosure controls and procedures were not effective to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act (1) is recorded, processed, summarized, and reported within the time periods specified in the SEC's rules and forms, and (2) is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosures.

Management identified the following control deficiencies that constitute material weaknesses that are not fully remediated as of the filing date of this report:

As a small company with limited resources that are mainly focused on the development and sales of software products and services, CIC does not employ a sufficient number of staff in its finance department to possess an optimal segregation of duties or to provide optimal levels of oversight. This has resulted in certain audit adjustments and management believes that there may be a possibility for a material misstatement to occur in future periods while it employs the current number of personnel in its finance department.

The Company does not expect that its disclosure controls and procedures will prevent all error and all fraud. A control procedure, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control procedures are met. Because of the inherent limitations in all control procedures, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The Company considered these limitations during the development of its disclosure controls and procedures, and will continually reevaluate them to ensure they provide reasonable assurance that such controls and procedures are effective.

Changes in Internal Control over Financial Reporting

There have been no changes in our internal control over financial reporting during the quarter ended March 31, 2015 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Part II-Other Information

Item 1. Legal Proceedings.

None.

Item 1A. Risk Factors

Not applicable.

Item 2. Unregistered Sale of Securities and Use of Proceeds.

None.
19

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)


Item 3. Defaults Upon Senior Securities.

None.

Item 4. Mine Safety Disclosures

Not applicable

Item 5. Other Information.

None.

Item 6. Exhibits.

(a) Exhibits.

Exhibit Number
 
Document
 
3.1
 
Certificate of Incorporation of the Company, as amended, incorporated herein by reference to Exhibits 3.1, 3.2, 3.3 and 3.4 to the Company's Registration Statement on Form 10 (File No. 0‑19301).
3.2
Certificate of Amendment to the Company's Certificate of Incorporation (authorizing the reclassification of the Class A Common Stock and Class B Common Stock into one class of Common Stock) as filed with the Delaware Secretary of State's office on November 1, 1991, incorporated herein by reference to Exhibit 3 to Amendment 1 on Form 8 to the Company's Form 8‑A (File No. 0‑19301).
3.3
By‑laws of the Company adopted on October 6, 1986, incorporated herein by reference to Exhibit 3.5 to the Company's Registration Statement on Form 10 (File No. 0‑19301).
3.4
By‑laws of the Company adopted on October 6, 1986, incorporated herein by reference to Exhibit 3.5 to the Company's Registration Statement on Form 10 (File No. 0‑19301).
3.5
Certificate of Amendment to the Company's Amended and Restated Certificate of Incorporation dated January 24, 2001, incorporated herein by reference to Exhibit 3.5 to the Company's Registration Statement on Form S/1, filed December 28, 2007.
3.6
Certificate of Elimination of the Company's Certificate of Designation of the Series A Preferred Stock dated August 17, 2001, incorporated herein by reference to Exhibit 3.6 to the Company's Registration Statement on Form S/1, filed December 28, 2007.
3.7
Certificate of Amendment to the Company's Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State August 17, 2007, incorporated herein by reference to Exhibit 3.7 to the Company's Registration Statement on Form S/1 filed on December 28, 2007.
3.8
Amended and Restated Certificate of Incorporation of the Company filed with the Delaware Secretary of State on May 18, 1995, incorporated herein by reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2008.
3.9
Certificate of Designations, Powers, Preferences and Rights of the Series A Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on June 4, 2008, incorporated herein by reference to Exhibit 4.23 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2008.
3.10
Certificate of Amendment to the Company's Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on June 30, 2008, incorporated herein by reference to Exhibit 3.7 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2008.
3.11
Certificate of Designations, Powers, Preferences and Rights of the Series A-1 Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on October 30, 2008, incorporated herein by reference to Exhibit 3.11 to the Company's Annual Report on Form 10-K filed on March 12, 2009.
   
 
20

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
   
Exhibit Number
 
Document
3.12
Certificate of Elimination of the Company's Series A Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on December 30, 2008, incorporated herein by reference to Exhibit 3.12 to the Company's Annual Report on Form 10-K filed on March 12, 2009.
3.13
Certificate of Amendment to the Company's Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on June 30, 2009, incorporated herein by reference to Exhibit 3.13 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2009.
3.14
Amendment No. 1 to By-laws dated June 17, 2010, incorporated herein by reference to Exhibit 3.14 to the Company's Quarterly Report on Form 10-Q filed on August 16, 2010.
3.15
Certificate of Amendment to the Company's Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on August 4, 2010, incorporated herein by reference to Exhibit 3.15 to the Company's Quarterly Report on Form 10-Q filed on November 12, 2010.
3.16
Amended and Restated Certificate of Designation of Series A-1 Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on August 4, 2010, incorporated herein by reference to Exhibit 3.16 to the Company's Quarterly Report on Form 10-Q filed on November 12, 2010.
3.17
Certificate of Designation of Series B Participating Convertible Preferred Stock filed with the Delaware Secretary of State on August 4, 2010, incorporated herein by reference to Exhibit 3.17 to the Company's Quarterly Report on Form 10-Q filed on November 12, 2010.
3.18
Certificate of Amendment to Amended And Restated Certificate of Incorporation filed with the Delaware Secretary of State on December 31, 2010, incorporated herein by reference to Exhibit 3.18 to the Company's Annual Report on Form 10-K filed on March 30, 2011.
3.19
Second Amended and Restated Certificate of Designation of Series A-1 Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on December 31, 2010, incorporated herein by reference to Exhibit 3.19 to the Company's Annual Report on Form 10-K filed on March 30, 2011.
3.20
Second Amended and Restated Certificate of Designation of Series B Participating Convertible Preferred Stock filed with the Delaware Secretary of State on December 31, 2010, incorporated herein by reference to Exhibit 3.20 to the Company's Annual Report on Form 10-K filed on March 30, 2011.
3.21
Certificate of Designation of Series C Participating Convertible Preferred Stock filed with the Delaware Secretary of State on December 31, 2010, incorporated herein by reference to Exhibit 3.21 to the Company's Annual Report on Form 10-K filed on March 30, 2011.
3.22
Amendment to the Amended And Restated Certificate of Designation of the Series B Participating Convertible Preferred Stock, incorporated herein by reference to Exhibit 10.59 to the Company's Current Report on Form 8-K filed March 31, 2011.
3.23
Amendment to the Amended And Restated Certificate of Designation of the Series C Participating Convertible Preferred Stock, incorporated herein by reference to Exhibit 10.60 to the Company's Current Report on Form 8-K filed March 31, 2011.
3.24
Certificate of Amendment to Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on November 13, 2012, incorporated herein by reference to Appendix A to the Company's Definitive Proxy Statement filed on Schedule 14A on October 22, 2012.
3.25
Third Amended and Restated Certificate of Designation of Series A-1 Cumulative Convertible Preferred Stock filed with the Delaware Secretary of State on November 13, 2012, incorporated herein by reference to Exhibit 3.25 to the Company's Form 10-K filed March 31, 2014 .
3.26
Second Amended and Restated Certificate of Designation of Series B Participating Convertible Preferred Stock filed with the Delaware Secretary of State on November 13, 2012, incorporated herein by reference to Exhibit 3.26 to the Company's Form 10-K filed March 31, 2014 .
3.27
Amended and Restated Certificate of Designation of Series C Participating Convertible Preferred Stock filed with the Delaware Secretary of State on November 13, incorporated herein by reference to Exhibit 3.27 to the Company's Form 10-K filed March 31, 2014 .
   
 
21

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
   
Exhibit Number
 
Document
3.28
Certificate of Designation of Series D Convertible Preferred Stock filed with the Delaware Secretary of State on November 13, 2012, incorporated herein by reference to Exhibit 3.28 to the Company's Form 10-K filed March 31, 2014 .
3.29
Certificate of Amendment to Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on December 10, 2013, incorporated herein by reference to Appendix A to the Company's Definitive Proxy Statement filed on Schedule 14A on November 1, 2013.
3.30
Certificate of Amendment to Certificate of Designation of Series D Convertible Preferred Stock filed with the Delaware Secretary of State on December 31, 2013, incorporated herein by reference to Exhibit 3.30 to the Company's Form 10-K filed March 31, 2014 .
3.31
Certificate of Amendment to Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on December 16, 2014, incorporate herein by reference to Appendix A to the Company's Definitive Proxy Statement filed on Schedule 14A on October 17, 2014.
*3.32
Certificate of Amendment to Certificate of Designation of Series D Convertible Preferred Stock filed with the Delaware Secretary of State on March 24, 2015.
10.59
Amendment to the Amended And Restated Certificate of Designation of the Series B Participating Convertible Preferred Stock, incorporated herein by reference to Exhibit 10.59 to the Company's Current Report on Form 8-K filed March 31, 2011.
10.60
Amendment to the Amended And Restated Certificate of Designation of the Series C Participating Convertible Preferred Stock, incorporated herein by reference to Exhibit 10.60 to the Company's Current Report on Form 8-K filed March 31, 2011.
10.61
Form Of Subscription Agreement, incorporated herein by reference to Exhibit 10.61 to the Company's Current Report on Form 8-K filed on April 4, 2011.
10.62
Amendment No. 1 to the Registration Rights Agreement dated March 31, 2011, incorporated herein by reference to Exhibit 10.62 to the Company's Current Report on Form 8-K filed on April 4, 2011
10.63
Note and Warrant Purchase Agreement dated April 23, 2012, incorporated herein by reference to Exhibit 10.63 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2012.
10.64
Form of Subscription Agreement dated September 14, 2012, incorporated herein by reference to Exhibit 10.64 to the Company's Quarterly Report on Form 10-Q filed on November 14, 2012.
10.65
Form of Unsecured Convertible Promissory Note dated September 14, 2012, incorporated herein by reference to Exhibit 10.65 to the Company's Quarterly Report on Form 10-Q filed on November 14, 2012.
10.66
Form of Subscription Agreement dated May 17, 2013, incorporated herein by reference to Exhibit 10.66 to the Company's Quarterly Report on Form 10-Q filed on August 14, 2013.
10.67
Form of Subscription Agreement dated December 31, 2013, incorporated herein by reference to Exhibit 10.67 to the Company's Form 10-K filed March 31, 2014 .
10.68
Credit Agreement with Venture Champion Asia Limited dated May 6, 2014, incorporated herein by reference to Exhibit 10.68 to the Company's Form 10-Q filed August 15, 2014.
10.69
Form of Subscription Agreement dated August 5, 2014, incorporated herein by reference to Exhibit 10.69 to the Company's Form 10-K filed March 31, 2015 .
*10.70
Form of Subscription Agreement dated March 24, 2015.
*31.1
Certification of Company's Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
*31.2
Certificate of Company's Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
*32.1
Certification of Chief Executive Officer pursuant to 18 USC Section 1750, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
*32.2
Certification of Chief Financial Officer pursuant to 18 USC Section 1750, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

* Filed herewith.


22

Communication Intelligence Corporation
FORM 10-Q
(In thousands, except per share amounts)
SIGNATURES

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





   
COMMUNICATION INTELLIGENCE CORPORATION
   
Registrant
     


May 15, 2015
 
/s/ Andrea Goren
Date
 
Andrea Goren
   
(Principal Financial Officer and Officer Duly Authorized to Sign on Behalf of the Registrant)

23
EXHIBIT 31.1

CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Philip Sassower, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Communication Intelligence Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date:  May 15, 2015
/s/ Philip Sassower
Chairman and Chief Executive Officer
(Principal Executive Officer of Registrant)
EXHIBIT 31.2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Andrea Goren, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Communication Intelligence Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date:  May 15, 2015

//Andrea Goren
Chief Financial Officer
(Principal Financial Officer of Registrant)

EXHIBIT 32.1

CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Philip S. Sassower, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Communication Intelligence Corporation on Form 10-Q for the quarterly period ended March 31, 2015 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of Communication Intelligence Corporation.

Date: May 15, 2015

By: /s/ Philip S. Sassower
Chairman and Chief Executive Officer
(Principal Executive Officer)

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Communication Intelligence Corporation and will be retained by Communication Intelligence Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

 
This certification accompanies this Quarterly Report on Form 10-Q pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by such Act, be deemed filed by Communication Intelligence Corporation for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that Communication Intelligence Corporation specifically incorporates it by reference.

EXHIBIT 32.2

CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Andrea Goren, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Communication Intelligence Corporation on Form 10-Q for the quarterly period ended March 31, 2015 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of Communication Intelligence Corporation.

Date: May 15, 2015

By: /s/ Andrea Goren
Chief Financial Officer
(Principal Financial Officer)

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Communication Intelligence Corporation and will be retained by Communication Intelligence Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

 
This certification accompanies this Quarterly Report on Form 10-Q pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by such Act, be deemed filed by Communication Intelligence Corporation for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that Communication Intelligence Corporation specifically incorporates it by reference.

EXHIBIT 3.32
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF DESIGNATION
OF
SERIES D CONVERTIBLE PREFERRED STOCK
OF
COMMUNICATION INTELLIGENCE CORPORATION
It is hereby certified that:
1.              The name of the corporation is Communication Intelligence Corporation (the "Corporation").
2.              The original Certificate of Designation of the Series D Convertible Preferred Stock (the "Certificate of Designation") was filed with the Secretary of State of the State of Delaware on November 13, 2012.
3.              The Certificate of Designation is hereby amended as follows:
Section 1 of the Certificate of Designation is hereby deleted and replaced in its entirety with the following:
"1. Designation and Number .  The shares of such series may be issued in one or more series. The shares of such series shall be designated as either (i) Series D-1 Convertible Preferred Stock with a par value of $0.01 per share (the " Series D-1 Preferred Stock "), which shall consist of Ten Million (10,000,000) shares, or (ii) Series D-1 Convertible Preferred Stock with a par value of $0.01 per share (the " Series D-2 Preferred Stock "), which shall consist of Ten Million (10,000,000).  References to the " Series D Preferred Stock " shall collectively refer to both the Series D-1 Preferred Stock and the Series D-2 Preferred Stock."
4.              This Amendment has been duly adopted in accordance with Sections 228 and 242(b) of the Delaware General Corporation Law.

IN WITNESS WHEREOF , the undersigned has executed this Amendment dated as of March 24, 2015.

____ /s/ Craig Hutchison __________________
Name: Craig Hutchinson
Title: Vice President and Assistant Treasurer
 
EXHIBIT 10.70
 
SUBSCRIPTION AGREEMENT

Dated as of February 27, 2015

Subscriber Information
 
Name:                                                                                                                                     
Address:                                                                                                                                  
                                                                                                                                                 
 
 
Email:                                                                                                     
 
Total Investment
 
$                                                      
 
 

Communication Intelligence Corporation
c/o SG Phoenix LLC, as Administrative Agent
110 East 59 th Street, Suite 1901
New York, NY 10022

Re: Series D-1 Preferred Stock Purchase

Ladies and Gentlemen:

Reference is hereby made to (i) the confidential term sheet (the " Term Sheet "), dated as of February 27, 2015, of Communication Intelligence Corporation, a Delaware corporation (the " Company "), attached hereto as Exhibit A ; (ii)   the Company's Annual Report on Form 10-K for the year ended December 31, 2013; (iii) the Company's Quarterly Reports on Form 10-Q for the three months ended March 31, June 30, and September 30, 2014; and (iv) the Company's most recent Definitive Proxy Statement on Schedule 14A, filed with the SEC on November 12, 2014.

Pursuant to the Term Sheet and to subscription agreements in the form of this agreement (each a " Subscription Agreement ," and, collectively, the " Subscription Agreements "), the Company proposes to issue to accredited investors up to (a) 3,000,000 shares (the " Shares "), of the Company's Series D-1 Convertible Preferred Stock (the " Series D-1 Preferred Stock "), at a purchase price of $1.00 per Share and (b) warrants to purchase shares of Common Stock, as described in greater detail below (each, a " Warrant "), the form of which is attached hereto as Exhibit B (the " Offering ").

As described in greater detail below, new investors, including the undersigned (each an " Investor ," and collectively, the " Investors ") at an initial closing (the " Initial Closing ") or at additional closings thereafter, as the case may be (including the Initial Closing, each a " Closing "), will subscribe for the Shares to be purchased by them, which shares are convertible into shares of the Company's common stock, $0.01 par value per share (" Common Stock "), at a conversion price equal to $0.0225 per share (subject to adjustment) The Company may conduct additional
 
 

EXHIBIT 10.70
Closings until the earlier of (i) a maximum of $3 million has been received or (ii) March 20, 2015 (subject to extension by Company without notice).

Each Investor will be entitled to receive a Warrant exercisable for an amount of shares of Common Stock determined by dividing such Investor's Total Amount of Investment (as defined below) by $0.0225, by dividing the quotient into two and rounding such result down to the nearest integer.

1.              Subscription.  The undersigned hereby executes and delivers this Subscription Agreement and subscribes for and agrees to purchase Shares of Series D-1 Preferred Stock at a price of $1.00 for each Share, for an aggregate amount $____________ (the " Total Amount of Investment ").  The Total Amount of Investment should be remitted to SG Phoenix LLC, as administrative agent (" SG Phoenix " or the " Administrative Agent" ), upon execution and delivery of this Subscription Agreement.  The Total Amount of Investment is payable either by check made out to "CIC Series D Escrow" or by wire transfer using the following instructions:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Attn.: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Account Name: xxxxxxxxxxxxxxxxxxxxxxxxxxx
Account # xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2.              Subscription Instruments.  The undersigned is delivering to the Company a copy of this Subscription Agreement duly completed and executed by the undersigned.

3.              Conditions to Closings.

(a) Conditions of Investors' Obligations at Closing .  The obligations of each Investor under this Subscription Agreement are subject to the fulfillment, on or prior to the date of a Closing, of each of the following conditions, any of which may be waived in whole or in part by the Administrative Agent in its sole and absolute discretion:

(i) Performance .  The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Subscription Agreement that are required to be performed or complied with by it with respect to a Closing on or prior to the date of a Closing.

 (ii) No Material Adverse Change .  No material adverse change with respect to the Company's business, properties, prospects or condition (financial or otherwise) shall have occurred between September 30, 2014, and the date of a Closing.

(iii) Consents and Waivers . The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Subscription Agreement with respect to the lawful sale and issuance of the Shares on or prior to the date of a Closing.

2

EXHIBIT 10.70
(iv) Governmental Approvals .  Except for the notices required or permitted to be filed after the date of a Closing pursuant to applicable federal and state securities laws, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Series D-1 Preferred Stock at a Closing.

(v) Secretary's Certificate .  On or prior to the date of a Closing, the Company shall have delivered to the Administrative Agent, on behalf of the Investors, a certificate executed by the Secretary of the Company dated as of the date of such Closing certifying with respect to (A) a copy of the Company's Certificate of Incorporation and its Bylaws in effect on such date and that the Company is not in violation of or default under any provision of its Certificate of Incorporation or Bylaws as of and on the date of such Closing and (B) Board resolutions of the Company authorizing the lawful sale and issuance of the Series D-1 Preferred Stock.

(b) Conditions to Obligations of the Company .  The Company's obligation to issue and sell the Shares at Closing is subject to the fulfillment, to the Company's reasonable satisfaction, on or prior to the date of such Closing, of the following conditions, any of which may be waived in whole or in part by the Company:

(i) Representations and Warranties .  The representations and warranties made by each Investor in Section 5 shall be true and correct when made, and shall be true and correct on the date of a Closing with the same force and effect as if they had been made on and as of the same date.

(ii) Tender of Funds by Investors .  Each Investor shall have delivered to the Administrative Agent such Investor's Total Amount of Investment.

(iii) Consents and Waivers . The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Subscription Agreement with respect to the lawful sale and issuance of the Shares on or prior to the date of a Closing.

4.              Representations and Warranties.  In connection with the undersigned's subscription, the undersigned hereby represents and warrants as follows:

(a) (i) The undersigned acknowledges that the undersigned has carefully reviewed the Company's public filings, including but not limited to (A) the Company's Annual Report on Form 10-K for the year ended December 31, 2013, filed with the SEC on March 31, 2014, (B) the Company's Quarterly Report on Form 10-Q for the three months ended September 30, 2014, filed with the SEC on October 14, 2014, and (C) the Company's most recent Definitive Proxy Statement on Schedule 14A, filed with the SEC on November 12, 2014.

(ii) The undersigned has such knowledge and experience in financial and business matters that he, she or it is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto.  The undersigned has obtained sufficient information to evaluate the merits and risks of the investment and to make such a decision.

3

EXHIBIT 10.70
(iii) The undersigned is an " Accredited Investor " (as such term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933, as amended (the " Securities Act ")).

(b) The undersigned has had access to all documents, records and books of the Company, which the undersigned (or the undersigned's advisor) considers necessary or appropriate to make an informed decision pertaining to this investment.  Additionally, the undersigned has been provided the opportunity to ask questions and receive answers concerning the terms and provisions of the Series D-1 Preferred Stock and to obtain any additional information which the Company possesses, or can acquire without unreasonable effort or expense that is relevant to the undersigned's investment decision.  To the extent the undersigned has not sought information regarding any particular matter, the undersigned represents that he, she or it had and has no interest in doing so and that such matters are not material to the undersigned in connection with this investment.

(c) The undersigned (i) has adequate means of providing for the undersigned's current needs and possible personal contingencies and those of the undersigned's family, if applicable, in the same manner as the undersigned would have been able to provide prior to making the investment contemplated herein, (ii) has no need for liquidity in this investment, (iii) is aware of and able to bear the risks of the investment for an indefinite period of time and (iv) presently, based on existing conditions, is able to afford a complete loss of such investment.

(d) The undersigned recognizes that an investment in the Series D-1 Preferred Stock (the " Securities ")   involves significant risks and the undersigned may lose his, her or its entire investment in the Securities.

(e) The undersigned understands that the Securities are " restricted securities " as that term is defined pursuant to Rule 144 of the Securities Act, and have not been registered under the Securities Act or under certain state securities laws in reliance upon exemptions therefrom for nonpublic offerings.  The undersigned understands that the Securities must be held indefinitely unless the sale thereof is subsequently registered under the Securities Act and under certain state securities laws or an exemption or exemptions from such registration are available.  The undersigned understands that the Company is under no obligation to register the Securities under the Securities Act or any other applicable securities law and that the undersigned has no right to require such registration.

(f) The Securities are being purchased solely for the undersigned's account for investment and not for the account of any other person and not with a view to or for distribution, assignment or resale in connection with any distribution within the meaning of the Securities Act, and no other person has a direct or indirect beneficial interest in such Securities.  The undersigned represents that the undersigned has no agreement, understanding,
 
4

EXHIBIT 10.70
 
 commitment or other arrangement with any person and no present intention to sell, transfer or assign any Securities.

(g) The undersigned agrees not to sell or otherwise transfer the Securities or the underlying shares of Common Stock unless they are registered under the Securities Act and under any applicable state securities laws, or an exemption or exemptions from such registration are available.

(h) Neither the undersigned, nor, to the extent the undersigned has them, any of the undersigned's shareholders, members, managers, general or limited partners, directors, affiliates or executive officers (collectively with the undersigned, the " Subscriber Covered Persons "), are subject to any of the "Bad Actor" disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a " Disqualification Event "), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).  The undersigned has exercised reasonable care to determine whether any Subscriber Covered Person is subject to a Disqualification Event. The purchase of the Securities will not subject the Company to any Disqualification Event.

(i) The undersigned has all requisite legal capacity and power to enter into this Subscription Agreement, which constitutes a valid and binding agreement of the undersigned enforceable against the undersigned in accordance with its terms; and the person signing this Subscription Agreement on behalf of the undersigned is empowered and duly authorized to do so.  The undersigned, if a corporation, partnership, trust or other entity, is authorized and otherwise duly qualified to purchase and hold the Securities and to enter into this Subscription Agreement and such entity has not been formed for the specific purpose of acquiring the Securities in the Company unless all of its equity owners qualify as accredited individual investors.

(j) All information which the undersigned has provided to the Administrative Agent and the Company concerning the undersigned, the undersigned's financial position and knowledge of financial and business matters, or, in the case of a corporation, partnership, trust or other entity, concerning such knowledge of the person making the investment decision on behalf of such entity, including all information contained in this Subscription Agreement, is true, correct and complete as of the date set forth on the signature page hereof, and if there should be any adverse change in such information prior to the subscription being accepted, the undersigned will immediately provide the Company with such information.

(k) The offering and sale of the Securities to the undersigned were not made through any advertisement in printed media of general and regular paid circulation, radio or television or any other form of advertisement, or as part of a general solicitation.

(l) The undersigned shall pay all sales, transfer, income, use, and similar taxes arising out of or in connection with the Securities in accordance with all applicable laws.

5.              Confidentiality .  The undersigned hereby acknowledges and agrees that the Term Sheet and the information contained in this Subscription Agreement may contain material
 
 
5

EXHIBIT 10.70
 
 information about the Company that has not been disclosed to the public generally.  The undersigned understands that it and its representatives could be subject to fines, penalties and other liabilities under applicable securities laws if the undersigned or any of its representatives trades in the Company's securities while in possession of any material, non-public information concerning the Company.  The undersigned agrees to keep such information confidential and not to trade, and not to allow any of its representatives to trade, in the Company's securities until such time as the undersigned or such representatives are no longer prohibited from so trading under all applicable securities laws (whether because the Company publicly disclosed all material information about the Company contained in the Term Sheet and this Subscription Agreement or otherwise).

6.              Indemnification.  The undersigned agrees to indemnify and hold harmless the Company and its stockholders, officers, directors, employees, advisors, attorneys and agents (including the Administrative Agent) (the " Indemnitees ") from and against all liability, damage, losses, costs and expenses (including reasonable attorneys' fees and court costs) which they may incur by reason of any breach of the representations and warranties and agreements made by the undersigned herein or in any document provided by the undersigned to the Company.

7.              Market Standoff Provision .  The undersigned hereby agrees that, if so requested in writing by the Company or any managing underwriter (the " Managing Underwriter ") in connection with any registration of the offering by the Company of any securities of the Company under the Securities Act, the undersigned shall not sell or otherwise transfer any securities of the Company during the 180-day period (or such other period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company) (the " Market Standoff Period ") following the effective date of a registration statement of the Company filed under the Securities Act.  The Company may impose stop-transfer instructions with respect to the Securities subject to the foregoing restrictions until the end of such Market Standoff Period.

8.              Legend.   The undersigned understands and agrees that the Company will cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Securities (or the securities underlying the Securities), together with any other legend that may be required by federal or state securities laws:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OF HYPOTHECATION DOES NOT VIOLATE THE PROVISIONS THEREOF.

9.              Additional Action .  The undersigned shall, upon the request of the Administrative Agent or the Company, from time to time, execute and deliver promptly to the Administrative
 
 
6

EXHIBIT 10.70
 
 Agent or the Company all instruments and documents of further assurances or otherwise, and will do any and all such acts and things, as may be reasonably required to carry out the obligations of the undersigned hereunder and to consummate the transactions contemplated hereby.

10.              Miscellaneous.

(a) The undersigned agrees not to transfer or assign this Subscription Agreement, or any of the undersigned's interest herein, and further agrees that the transfer or assignment of the Securities acquired pursuant hereto shall be made only in accordance with all applicable laws.  The covenants, representations and warranties contained in this Subscription Agreement shall be binding on the undersigned's heirs, legal representatives, successors and assigns and shall inure to the benefit of the Company and the Indemnitees and their respective successors and assigns.

(b) The undersigned agrees that subject to any applicable state law, the undersigned may not cancel, terminate or revoke this Subscription Agreement or any agreement of the undersigned made hereunder and that this Subscription Agreement shall survive the acceptance hereof by the Company as well as the death or disability of the undersigned and shall be binding upon the undersigned's heirs, executors, administrators, successors and assigns.

(c) This Subscription Agreement, together with the Exhibit attached hereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and may be amended only by a writing executed by all parties hereto.

(d) This Subscription Agreement shall be enforced, governed and construed in all respects in accordance with the laws of the State of New York, without regard to its conflicts of law rules.  Each of the parties hereto hereby irrevocably consents to the (non-exclusive) jurisdiction of the courts of the State of New York and of any Federal court located therein in connection with any suit, action or other proceeding arising out of or relating to this Subscription Agreement and waives any objection to venue in the State of New York.

(e) Within five (5) days after receipt of a written request from the Company, the undersigned agrees to provide such information, to execute and deliver such documents and to take, or forbear from taking, such actions as may be necessary to comply with any and all laws and ordinances to which the Company is subject.

(f) For the convenience of the parties, any number of counterparts hereof may be executed and each such executed counterpart shall be deemed an original, but all such counterparts together shall constitute one and the same instrument.

(g) This Subscription Agreement may be executed by the undersigned manually or by electronic signature and transmitted by facsimile, e-mail or electronically to the Administrative Agent, and if so executed and transmitted this Subscription Agreement will be for
 
 
7

EXHIBIT 10.70
 
 all purposes as effective as if the parties had delivered an executed original Subscription Agreement.

[Balance of page intentionally left blank]
8

EXHIBIT 10.70
SUBSCRIBER SIGNATURE PAGE

IN WITNESS WHEREOF, the undersigned has duly executed this Subscription Agreement as of the date first above written.

Total Amount of Investment
 
$                                            
 
 
Shares of Series D-1 Preferred Stock
 
                                                                  
 
 
Warrant Shares
 
 
                                                                
 
 
For Individuals :
 
                                                                                                           
 
Print Name Above
 
 
                                                                                                           
 
Sign Name Above
 
                                                                                       
 
Social Security Number
 
For Entities :
 
                                                                                       
 
Print Name of Entity Above
 
 
 
By:                                                                                 
Name:
Title:
 
 
                                                                                     
Employer Identification Number
  or Tax ID Number
 


9

EXHIBIT 10.70

SUBSCRIPTION ACCEPTANCE

IN WITNESS WHEREOF, the undersigned hereby accepts the subscription on behalf of the Company in accordance with the terms of the foregoing Subscription Agreement as of the date first above written.


SG PHOENIX LLC, as Administrative Agent



By:                                                                              
Name: Andrea Goren
Title: Member



Accepted Total Amount of Investment

$                                                                 


Accepted Shares of Series D-1 Preferred Stock


                                                                                 

Accepted Warrant Shares


                                                                                 

10

EXHIBIT 10.70
EXHIBIT A

Term Sheet

EXHIBIT 10.70

EXHIBIT B

Form of Warrant