MARIN SOFTWARE INC filed this 10-Q on 08/07/2014
OutlineBack to ResultsPrinter Friendly
10-Q
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 10-Q

 

 

(Mark One)

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

For the quarterly period ended June 30, 2014

OR

 

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

For the transition period from                      to                     

Commission File Number: 001-35838

 

 

Marin Software Incorporated

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   20-4647180

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

123 Mission Street, 25th Floor, San Francisco, CA   94105
(Address of Principal Executive Offices)   (Zip Code)

(415) 399-2580

(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 checkmark 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 during the preceding 12 months (or for such shorter time 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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x  (Do not check if a smaller reporting company)    Smaller reporting company   ¨

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

As of July 31, 2014, the registrant had 34,806,733 shares of common stock outstanding.

 

 

 


Table of Contents

Table of Contents

 

PART I. FINANCIAL INFORMATION

  

Item 1. Financial Statements (Unaudited).

     3   

CONDENSED CONSOLIDATED BALANCE SHEETS

     3   

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

     4   

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

     5   

Notes to Condensed Consolidated Financial Statements

     6   

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

     18   

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

     29   

Item 4. Controls and Procedures.

     30   

PART II OTHER INFORMATION

  

ITEM 1. LEGAL PROCEEDINGS

     30   

ITEM 1A. RISK FACTORS

     30   

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

     46   

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

     46   

ITEM 4. MINE SAFETY DISCLOSURES

     46   

ITEM 5. OTHER INFORMATION

     46   

ITEM 6. EXHIBITS

     47   

SIGNATURES

     48   

 

2


Table of Contents

PART I. FINANCIAL INFORMATION

Item 1. Financial Statements.

MARIN SOFTWARE INCORPORATED

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except par value)

 

                               
     At June 30,     At December 31,  
     2014     2013*  
     (unaudited)        

Assets

    

Current assets

    

Cash and cash equivalents

   $ 83,922      $ 104,407   

Accounts receivable, net

     16,921        14,921   

Prepaid expenses and other current assets

     3,591        2,695   
  

 

 

   

 

 

 

Total current assets

     104,434        122,023   

Property and equipment, net

     13,519        14,417   

Intangible assets, net

     8,368        —     

Goodwill

     11,593        —     

Other noncurrent assets

     838        937   
  

 

 

   

 

 

 

Total assets

   $ 138,752      $ 137,377   
  

 

 

   

 

 

 

Liabilities and Stockholders’ Equity

    

Current liabilities

    

Accounts payable

   $ 2,176      $ 1,018   

Accrued expenses and other current liabilities

     11,715        10,950   

Deferred revenues

     1,499        2,566   

Current portion of long-term debt

     2,929        3,253   
  

 

 

   

 

 

 

Total current liabilities

     18,319        17,787   

Long-term debt, less current portion

     1,721        2,962   

Other long-term liabilities

     1,011        1,284   
  

 

 

   

 

 

 

Total liabilities

     21,051        22,033   
  

 

 

   

 

 

 

Stockholders’ equity

    

Common stock, $0.001 par value - 500,000 shares authorized, 35,513 and 33,133 shares issued, 34,772 and 32,953 outstanding at June 30, 2014, and December 31, 2013, respectively

     35        33   

Additional paid-in capital

     245,748        228,512   

Accumulated deficit

     (128,298     (113,201

Accumulated other comprehensive income

     216        —     
  

 

 

   

 

 

 

Total stockholders’ equity

                117,701        115,344   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 138,752      $ 137,377   
  

 

 

   

 

 

 

 

* Derived from our audited consolidated financial statements as of December 31, 2013.

See accompanying notes to the condensed consolidated financial statements.

 

3


Table of Contents

MARIN SOFTWARE INCORPORATED

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

(Unaudited)

(in thousands, except per share data)

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  

Revenues, net

   $ 23,853      $ 18,218      $ 46,669      $ 35,373   

Cost of revenues

     8,763        7,696        17,146        15,068   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     15,090        10,522        29,523        20,305   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating expenses

        

Sales and marketing

     11,978        10,350        23,966        20,809   

Research and development

     6,627        4,904        12,710        9,983   

General and administrative

     5,368        4,026        9,786        8,074   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     23,973        19,280        46,462        38,866   
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from operations

     (8,883     (8,758     (16,939     (18,561

Interest expense, net

     (62     (109     (128     (293

Other expenses, net

     (286     (81     (281     (489
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss before benefit from (provision for) income taxes

     (9,231     (8,948     (17,348     (19,343

Benefit from (provision for) income taxes

     2,440        (149     2,252        (255
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

     (6,791     (9,097     (15,096     (19,598

Foreign currency translation adjustments

     87        —          216        —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive loss

   $ (6,704   $ (9,097   $ (14,880   $ (19,598
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per share available to common stockholders, basic and diluted

   $ (0.20   $ (0.28   $ (0.45   $ (0.99
  

 

 

   

 

 

   

 

 

   

 

 

 

Weighted-average shares used to compute net loss per share available to common stockholders, basic and diluted

     33,771        32,237        33,563        19,871   
  

 

 

   

 

 

   

 

 

   

 

 

 

Stock-based compensation is allocated as follows (Note 9):

        

Cost of revenues

   $ 192      $ 245      $ 403      $ 450   

Sales and marketing

     449        361        852        654   

Research and development

     649        303        1,086        611   

General and administrative

     651        400        1,097        819   

Amortization of intangible assets is allocated as follows (Note 4):

        

Cost of revenues

   $ 57      $ —        $ 57      $ —     

Sales and marketing

     37        —          37        —     

Research and development

     57        —          57        —     

General and administrative

     11        —          11        —     

See accompanying notes to the condensed consolidated financial statements.

 

4


Table of Contents

MARIN SOFTWARE INCORPORATED

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

(in thousands)

 

     Six Months Ended June 30,  
     2014     2013  

Operating activities

    

Net loss

   $ (15,096   $ (19,598

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

    

Depreciation

     2,717        2,129   

Amortization of internally developed software

     910        483   

Amortization of intangible assets

     162        —     

Noncash interest expense related to warrants issued in connection with debt

     92        383   

Stock-based compensation

     3,438        2,534   

Loss on disposal of property and equipment

     14        —     

Provision for bad debt

     287        114   

Deferred income tax benefits

     (2,802     —     

Excess tax benefits from stock-based award activities

     (65     (37

Other noncash expenses

     268        —     

Changes in operating assets and liabilities

    

Accounts receivable

     (1,913     665   

Prepaid expenses and other current assets

     (803     (1,514

Other assets

     252        16   

Accounts payable

     524        (826

Deferred revenues

     (1,061     3,139   

Accrued expenses and other liabilities

     (1,167     1,879   
  

 

 

   

 

 

 

Net cash used in operating activities

     (14,243     (10,633
  

 

 

   

 

 

 

Investing activities

    

Purchases of property and equipment

     (1,405     (2,934

Capitalization of internally developed software

     (1,346     (1,548

Acquisition of business, net of cash acquired

     (4,151     —     
  

 

 

   

 

 

 

Net cash used in investing activities

     (6,902     (4,482
  

 

 

   

 

 

 

Financing activities

    

Proceeds from issuance of common stock in initial public offering, net of issuance costs

     —          109,454   

Proceeds from issuance of note payable, net of issuance costs

     —          1,718   

Repayment of note payable

     (1,657     (8,034

Repurchase of unvested shares

     (6     (45

Proceeds from exercise of common stock options

     1,532        1,024   

Proceeds from employee stock purchase plan

     726        —     

Excess tax benefits from stock-based award activities

     65        37   
  

 

 

   

 

 

 

Net cash provided by financing activities

     660        104,154   
  

 

 

   

 

 

 

Net (decrease) increase in cash and cash equivalents

     (20,485     89,039   

Cash and cash equivalents

    

Beginning of period

     104,407        31,540   
  

 

 

   

 

 

 

End of period

   $ 83,922      $ 120,579   
  

 

 

   

 

 

 

Supplemental disclosure of noncash investing and financing activities

    

Accounts payable related purchases of property and equipment

   $ 110      $ 1,661   

Acquisition of equipment through capital lease

     —          1,204   

Conversion of convertible preferred stock to common stock

     —          105,710   

Conversion of warrant to purchase convertible preferred stock to common stock warrant

     —          745   

Issuance of common stock under employee stock purchase plan

     715        —     

Issuance of common stock in connection with business acquisition

     11,195        —     

Unpaid deferred initial public offering costs

     —          49   

See accompanying notes to the condensed consolidated financial statements.

 

5


Table of Contents

Marin Software Incorporated

Notes to Condensed Consolidated Financial Statements

(dollars and share numbers in thousands, except per share data)

1. Summary of Business and Significant Accounting Policies

Marin Software Incorporated (the “Company”) was incorporated in Delaware in March 2006. The Company provides a leading cloud-based Revenue Acquisition Management platform, offering an integrated digital advertising management solution for search, display, social and mobile advertising channels. The Company’s platform helps advertisers and agencies improve financial performance, realize efficiencies and time savings, and make better business decisions. The Company’s corporate headquarters are located in San Francisco, California, and the Company has additional offices in the following locations: New York, Chicago, Austin, Portland, London, Dublin, Hamburg, Paris, Tokyo, Singapore, Sydney and Shanghai.

Basis of Presentation and Consolidation

The accompanying unaudited condensed consolidated financial statements and condensed footnotes have been prepared in accordance with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments, consisting of only normal recurring items, considered necessary for fair statement have been included. The results of operations for the three and six months ended June 30, 2014 are not necessarily indicative of the results to be expected for the year ended December 31, 2014 or for other interim periods or for future years.

The accompanying unaudited condensed consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany accounts and transactions have been eliminated on consolidation. The condensed consolidated balance sheet as of December 31, 2013 is derived from audited financial statements as of that date but does not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the Securities and Exchange Commission (“SEC”) on February 28, 2014.

Recent Accounting Pronouncements

In July 2013, the Financial Accounting Standards Board (“FASB”) issued a new accounting standard update on the financial statement presentation of unrecognized tax benefits. The new guidance provides that a liability related to an unrecognized tax benefit would be presented as a reduction of a deferred tax asset for a net operating loss carryforward, a similar tax loss or a tax credit carryforward if such settlement is required or expected in the event the uncertain tax position is disallowed. The Company adopted the standard update in the first quarter of 2014, and its adoption had no impact on the Company’s consolidated results of operations or financial condition.

In June 2014, the FASB issued Accounting Standards Update (“ASU”) 2014-12, Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the Requisite Service Period. The guidance requires that a performance target that affects vesting and could be achieved after the requisite service period be treated as a performance condition. A reporting entity should apply existing guidance as it relates to such awards. This guidance is effective for us in our first quarter of fiscal year ending December 31, 2017. We are currently evaluating the impact of our pending adoption of this ASU on the Company’s consolidated financial statements.

In May 2014, the FASB issued Accounting Standards Update 2014-09, Revenue from Contracts with Customers, which provides guidance for revenue recognition. The standard’s core principle is that a company will recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services. In doing so, companies will need to use more judgment and make more estimates when compared with the current guidance. These may include identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price and allocating the transaction price to each separate performance obligation. This guidance will be effective for the Company in the first quarter of its fiscal year ending December 31, 2017. The Company is currently in the process of evaluating the impact of pending adoption of this ASU on the Company’s consolidated financial statements.

Cash and Cash Equivalents

The Company considers all highly liquid investments with an original or remaining maturity from the Company’s date of purchase of 90 days or less to be cash equivalents. Deposits held with financial institutions are likely to exceed the amount of insurance on these deposits. Cash equivalents consist of money market funds, which are readily convertible into cash and are stated at cost, which approximates fair market value. Cash equivalents were $75,008 and $98,987 as of June 30, 2014 and December 31, 2013, respectively.

 

6


Table of Contents

Fair Value of Financial Instruments

The Company’s financial instruments, including cash equivalents, accounts receivable and accounts payable are carried at cost, which approximates fair value because of the short-term nature of those instruments. Based on borrowing rates available to the Company for loans with similar terms and maturities, the carrying value of borrowings approximates fair value (Level 2 within the fair value hierarchy).

The Company measures and reports certain financial assets at fair value on a recurring basis, including its investments in money market funds. The fair value hierarchy prioritizes the inputs into three broad levels:

 

    Level 1   Inputs are unadjusted quoted prices in active markets for identical assets or liabilities.
    Level 2   Inputs are quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument.
    Level 3   Inputs are unobservable inputs based on the Company’s assumptions.

A financial instrument’s level within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement.

The Company’s cash equivalents as of June 30, 2014 and December 31, 2013 consisted of money market funds with original maturity dates of less than three months from the date of their respective purchase. Cash equivalents are classified as Level 1. The fair value of the Company’s money market funds approximated amortized cost and, as such, there were no unrealized gains or losses on money market funds as of June 30, 2014 and December 31, 2013.

The following table presents the changes in the preferred stock warrant obligation measured and recorded at fair value on a recurring basis, using significant unobservable inputs (Level 3) during the six months ended June 30, 2013. There were no changes in the preferred stock warrant obligation during the six months ended June 30, 2014, as the underlying warrants were no longer outstanding subsequent to the Company’s initial public offering.

 

 

     Six Months Ended
June 30, 2013
 

Balances at beginning of period

   $ 507   

Change in estimated fair value of warrant

     238   

Conversion to common stock warrant

     (745
  

 

 

 

Balances at end of period

   $ —     
  

 

 

 

Allowance for Doubtful Accounts and Revenue Credits

The allowance for doubtful accounts reflects the Company’s best estimate of probable losses inherent in the Company’s receivables portfolio determined on the basis of historical experience, specific allowances for known troubled accounts and other currently available evidence. The Company has not experienced significant credit losses from its accounts receivable. The Company performs a regular review of its customers’ payment histories and associated credit risks and it does not require collateral from its customers. Certain contracts with advertising agencies contain sequential liability provisions, whereby the agency does not have an obligation to pay the Company until payment is received from the agency’s customers. In these circumstances, the Company evaluates the credit worthiness of the agency’s customers, in addition to the agency itself.

From time to time the Company provides revenue credits to customers and an allowance is made based on historical credit activity. As of June 30, 2014 and December 31, 2013, the Company recorded an allowance for potential customer credits in the amount of $264 and $349, respectively.

Property and Equipment

Property and equipment are stated at historical cost less accumulated depreciation and amortization. Depreciation and amortization are computed using the straight-line method over the estimated useful lives of the related assets.

 

7


Table of Contents

The useful lives of the property and equipment are as follows:

 

Computer equipment    3 to 5 years
Office equipment, furniture and fixtures    3 to 5 years
Software    3 years
Leasehold improvements    Shorter of useful life or lease term

Upon retirement or sale, the cost and related accumulated depreciation are removed from the balance sheet and the resulting gain or loss is reflected in operations. Major additions and improvements are capitalized while repairs and maintenance that do not extend the life of the asset are charged to operations as incurred. Depreciation and amortization expense is allocated to both cost of revenues and operating expenses.

Internally Developed Software

Costs incurred in the development phase are capitalized and amortized over the product’s estimated useful life, which is three years. The Company expenses all costs incurred that relate to planning and post implementation phases of development. Capitalized costs related to internally developed software under development are treated as construction in progress until the program, feature or functionality is ready for its intended use, at which time amortization commences. The Company capitalized internally developed software costs of $729 and $916 during the three months ended June 30, 2014 and 2013, respectively, and $1,346 and $1,548 during the six months ended June 30, 2014 and 2013, respectively. Amortization of capitalized costs related to internally developed software for the three months ended June 30, 2014 and 2013 was $465 and $256, respectively, and for the six months ended June 30, 2014 and 2013 was $910 and $483, respectively. As of June 30, 2014 and December 31, 2013, unamortized internally developed software costs totaled $4,672 and $4,236, respectively. Amortization of internally developed software is reflected in cost of revenues. Costs associated with minor enhancement and maintenance are expensed as incurred.

Goodwill, Intangible Assets and Impairment Assessments

Goodwill represents the excess of the purchase price in a business combination over the fair value of net tangible and intangible assets acquired. Intangible assets that are not considered to have an indefinite useful life are amortized over their useful lives, which generally range from two to six years. Estimated remaining useful lives of purchased intangible assets are evaluated to assess whether events or changes in circumstances warrant a revision to the remaining periods of amortization. The carrying amounts of these assets will be periodically reviewed for impairment (at least annually for goodwill and indefinite lived intangible assets) and whenever events or changes in circumstances indicate that the carrying value of these assets may not be recoverable.

Revenue Recognition

The Company generates revenues principally from subscriptions to its search, social and display advertising management platforms either directly with advertisers or with advertising agencies. The Company’s subscription agreements are generally one year or longer in length. The Company’s subscription fee under most contracts is variable based on the value of the advertising spend that the Company’s advertisers manage through the Company’s platform and is generally invoiced on a monthly basis. Contracts with direct advertisers and certain contracts with advertising agencies also include a minimum monthly fee that is payable over the duration of the contract. The Company’s customers do not have the right to take possession of the software supporting the application service at any time, nor do the arrangements contain general rights of return. The Company commences revenue recognition for both direct advertisers and advertising agencies when all of the following conditions are met:

 

    persuasive evidence of an arrangement exists;

 

    the Company’s platform is made available to the customer;

 

    the fee is fixed or determinable, and;

 

    collection is reasonably assured.

The Company recognizes the total minimum fee for both direct advertisers and advertising agencies, where applicable, over the duration of the contract, commencing on the date that the Company’s platform is made available to the customer, provided revenues recognized do not exceed amounts that are invoiced and due. The variable fee, which is based on a percentage of the value of the advertising spend managed through the Company’s platform, is recognized once the amount is fixed or determinable, which is generally on a monthly basis concurrent with the issuance of the customer invoice. Signed contracts are used as evidence of an arrangement. The Company assesses collectability based on a number of factors such as past collection history with the customer and creditworthiness of the customer. Certain agreements with advertising agencies also contain sequential liability provisions, which provide that the agency has no obligation to pay the Company until the agency receives payment from its customers. In these circumstances, the Company evaluates the credit worthiness of the agency’s customers, in addition to the agency itself, to conclude whether or not collectability is reasonably assured. If the Company determines collectability is not reasonably assured, the Company defers the revenue recognition until collectability becomes reasonably assured.

 

8


Table of Contents

Cost of Revenues

Cost of revenues primarily consists of costs related to hosting the Company’s cloud-based platform, providing implementation and ongoing customer support, data communications expenses, salaries and benefits of operations and support personnel, software license fees, costs associated with website development activities, allocated overhead, amortization expense associated with capitalized internal use software and intangible assets and property and equipment depreciation.

Stock-Based Compensation

Stock-based compensation is measured at grant date based on the fair value of the award and is expensed on a straight-line basis over the requisite service period.

Fair values of stock option awards are determined on the date of grant using an option-pricing model. The Company has selected the Black-Scholes option pricing model to estimate the fair value of its stock option awards to employees and non-employees. In applying the Black-Scholes option pricing model, the Company’s determination of the fair value of the stock option award on the date of grant is affected by the Company’s fair value of its common stock, as well as assumptions regarding a number of subjective variables. These variables include, but are not limited to, the Company’s expected stock price volatility and the optionholders’ actual and projected stock option exercise and employment termination behaviors.

Restricted stock units (“RSUs”) are measured based on the fair market values of the underlying common stock on the dates of grant. Shares of common stock are issued on the vesting dates net of the minimum statutory tax withholding requirements to be paid by the Company on behalf of the Company’s employees. As a result, the actual number of shares of common stock issued will be fewer than the actual number of outstanding RSUs.

For awards with graded vesting, the Company recognizes stock-based compensation expense over the requisite service period using the straight-line method, based on awards ultimately expected to vest. The Company estimates future forfeitures at the date of grant and revises the estimates, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

Stock options issued to non-employees such as consultants are recorded at their fair value on the measurement date. The measurement of stock-based compensation is subject to periodic adjustment as the underlying equity instruments vest. The fair value of options granted to consultants is expensed when vested. Non-employee stock-based compensation expense was not material for all periods presented.

See Note 9 for further information.

2. Business Combinations

On June 2, 2014, pursuant to the terms of an Agreement and Plan of Reorganization, a wholly-owned subsidiary of the Company merged with and into NowSpots, Inc., which conducted business as Perfect Audience (“Perfect Audience”), with NowSpots, Inc. surviving as a wholly-owned subsidiary of the Company. Perfect Audience specializes in display and social network ad retargeting, and its programmatic display and social advertising functions will expand the Company’s cross-channel capabilities.

The acquisition was accounted for under the acquisition method of accounting in which the tangible and identifiable intangible assets and liabilities of Perfect Audience were recorded at their respective fair values as of the acquisition date, including an amount for goodwill representing the difference between the respective acquisition consideration and fair values of identifiable net assets. The fair value of assets acquired and liabilities assumed was recorded based on a preliminary valuation and the Company’s estimates and assumptions are subject to change within the measurement period. The primary areas of the purchase price allocation that are not yet finalized are related to the fair values of intangible assets acquired and residual goodwill.

The total purchase price for the acquisition was $16,470, which consisted of 1,119 shares of the Company’s common stock valued at the closing date, and $5,275 in cash. Of the total purchase price, $4,777 was attributed to fair value of net liabilities assumed, $1,124 was cash acquired, and $8,530 was the fair value of intangible assets acquired with $11,593 as residual goodwill. The goodwill is primarily attributable to the synergies expected to arise after the acquisition and is not expected to be deductible for tax purposes.

In addition, the Company issued 630 shares of common stock (with a closing date fair value of $6,301) to existing Perfect Audience employees in connection with the acquisition, which are conditioned upon such employees’ continuous employment with the Company. These shares have been excluded from the purchase consideration and will be recognized as post-acquisition stock-based compensation expense. The Company recognizes compensation expense equal to the grant date fair value of the common stock on a straight-line basis over the employee’s requisite service period.

 

9


Table of Contents

3. Balance Sheet Components

The following table shows the components of property and equipment as of the dates presented:

 

                                           
     June 30,
2014
    December 31,
2013
 

Computer equipment

   $ 16,899      $ 16,314   

Software

     9,058        7,690   

Office equipment

     706        571   

Furniture, fixtures and leasehold improvements

     1,974        1,861   
  

 

 

   

 

 

 
     28,637        26,436   

Less: Accumulated depreciation and amortization

     (15,118     (12,019
  

 

 

   

 

 

 
   $ 13,519      $ 14,417   
  

 

 

   

 

 

 

Depreciation and amortization of internally developed software for the six months ended June 30, 2014 and 2013 was $3,627 and $2,612, respectively.

The following table shows the components of accrued expenses and other current liabilities as of the dates presented:

 

                                           
     June 30,
2014
     December 31,
2013
 

Accrued salary and payroll related expenses

   $ 5,850       $ 6,675   

Accrued accounts payable

     3,399         2,773   

Customer advances

     1,213         —     

Income tax payable

     501         434   

Sales and use tax payable

     256         466   

Other

     496         602   
  

 

 

    

 

 

 
   $ 11,715       $ 10,950   
  

 

 

    

 

 

 

 

10


Table of Contents

4. Goodwill and Intangible Assets

The goodwill balance as of June 30, 2014 totaling $11,593 was the result of the business acquisition disclosed in Note 2 of these condensed consolidated financial statements.

Intangible assets, excluding goodwill, consisted of the following:

 

     June 30,     Estimated
     2014     Useful Life

Developed technology

   $ 6,110      6 years

Customer relationships

     1,290      4 years

Non-compete agreements and tradename

     1,130      2 - 3 years
  

 

 

   
     8,530     

Less: accumulated amortization

     (162  
  

 

 

   
   $ 8,368     
  

 

 

   

Amortization expense of intangible assets was $162 and $0 for the three and six months ended June 30, 2014 and 2013, respectively.

Future estimated amortization of intangible assets as of June 30, 2014 is presented below:

 

Remaining six months of 2014

   $ 969   

Year ending December 31, 2015

     1,938   

Year ending December 31, 2016

     1,714   

Year ending December 31, 2017

     1,483   

Year ending December 31, 2018 and thereafter

     2,264   
  

 

 

 
   $    8,368   
  

 

 

 

5. Debt

In February 2013, the Company entered into a capital lease arrangement with an equipment manufacturer to finance the acquisition of computer equipment. The lease has an effective interest rate of 6.0% and is repayable in 36 consecutive equal monthly installments of principal and interest. At the end of the lease period, the Company has the option to purchase the equipment at the estimated fair market value. As of June 30, 2014 and December 31, 2013, the net book value of the equipment under the capital lease was $1,967 and $2,495, respectively, and the remaining principal balance payable was $2,070 and $2,598, respectively.

In September 2013, the Company entered into an amendment to its existing revolving credit facility pursuant to which Silicon Valley Bank agreed to increase the revolving credit facility to the lesser of $15,000 or 80% of the Company’s eligible accounts receivable. Also, the expiration date of the revolving credit facility was extended to July 31, 2015 and the annual interest rate was amended to 0.25% over the Prime Rate payable on a monthly basis. Additionally, the Company’s obligation to meet certain financial covenants will be waived while the Company’s unrestricted cash balance exceeds $50,000.

The maturities of all outstanding debt, including the capital lease arrangement, as of June 30, 2014 are as follows:

 

Years Ending       

2014

   $ 1,596   

2015

     2,464   

2016

     652   
  

 

 

 
     4,712   

Less:

  

Current portion

     (2,929

Discount on long-term debt

     (62
  

 

 

 

Noncurrent portion of debt

   $ 1,721   
  

 

 

 

 

11


Table of Contents

6. Convertible Preferred Stock

All 18,753 shares of outstanding preferred stock were automatically converted into fully paid shares of common stock immediately prior to the closing of the Company’s initial public offering on March 27, 2013. Upon the occurrence of this conversion event, the outstanding warrant to purchase Series B convertible preferred stock converted into a warrant to purchase common stock. All of the outstanding shares of preferred stock converted into common stock at the conversion rate of 1:1.

7. Common Stock

As of June 30, 2014 and December 31, 2013, the Company was authorized to issue 500,000 shares of $0.001 par value common stock. Reserved shares of common stock are as follows:

 

                                     
     June 30,
2014
     December 31,
2013
 

Options available for future grant

     3,925         4,585   

Options outstanding

     6,260         4,855   

RSUs outstanding

     363         —     

Shares available for future issuance under ESPP

               1,094         854   
  

 

 

    

 

 

 
     11,642         10,294   
  

 

 

    

 

 

 

8. Equity Award Plans

In April 2006, the Company’s Board of Directors adopted and the stockholders approved the 2006 Stock Option Plan (“2006 Plan”). The 2006 Plan provides for the grant of incentive stock options under the federal tax laws and nonstatutory stock options. Only employees may receive incentive stock options, but nonstatutory stock options may be granted to employees, nonemployee directors and consultants. The stock options are exercisable at a price equal to the market value of the underlying shares of common stock on the date of the grant as determined by the Company’s board of directors. The term of options granted under the 2006 Plan may not exceed ten years. Certain options are eligible for exercise prior to vesting. Exercised but unvested shares of common stock are subject to repurchase by the Company at the initial exercise price. The proceeds from the shares of common stock subject to repurchase are classified as a liability and reclassified to equity as the shares vest. Under the 2006 Plan’s early exercise feature, the Company had the right to repurchase 116 and 180 shares of common stock as of June 30, 2014 and December 31, 2013, respectively. The Company records cash received from the exercise of unvested stock options as a long-term liability. As of June 30, 2014 and December 31, 2013, $837 and $1,215, respectively, has been recorded as a long-term liability in the condensed consolidated balance sheets.

In February 2013, the Company’s Board of Directors and stockholders approved the 2013 Equity Incentive Plan (“2013 Plan”), under which 4,500 shares of common stock were originally reserved for issuance. Additionally, all reserved and unissued shares under the 2006 Plan at the time the 2013 Plan became effective are eligible for issuance under the 2013 Plan. The 2013 Plan became effective on March 21, 2013, at which time the Company ceased to grant equity awards under the 2006 Plan. The 2013 Equity Incentive Plan authorizes the award of stock options, restricted stock awards, stock appreciation rights, RSUs, performance awards and stock bonuses to the Company’s employees, directors, consultants, independent contractors and advisors. On January 1 of each of the first 10 calendar years through 2023, the number of shares of common stock reserved under the 2013 Equity Incentive Plan will automatically increase by an amount equal to 5% of the total outstanding shares as of immediately preceding December 31, or such lesser number of shares as determined by the Company’s Board of Directors. Under the terms of the 2013 Plan, the shares available for issuance increased by approximately 1,648 shares of common stock on January 1, 2014.

 

12


Table of Contents

Stock Options

A summary of stock option activity under the 2006 Plan and 2013 Plan is as follows:

 

     Options Outstanding  
     Number of
Shares
    Weighted
Average
Exercise
Price Per Share
     Weighted
Average
Remaining
Contractual
Term

(in Years)
     Aggregate
Intrinsic
Value
 

Balances at December 31, 2013

     4,855      $ 6.56         7.85       $ 20,593   

Options granted

     2,485        9.73         9.86      

Options exercised

     (541     2.83         —        

Options forfeited and cancelled

     (539     9.12         —        
  

 

 

         

Balances at June 30, 2014

     6,260      $ 7.92         8.23       $ 24,585   
  

 

 

         

Options exercisable as of June 30, 2014

     3,313      $ 6.09         6.96       $ 19,143   
  

 

 

         

Options vested as of June 30, 2014

     2,281      $ 4.89         6.45       $ 15,854   
  

 

 

         

Options vested and expected to vest as of June 30, 2014

     5,832      $ 7.78         8.14       $ 23,748   
  

 

 

         

RSUs

A summary of RSUs granted and unvested under the 2013 Plan as of June 30, 2014 is as follows:

 

     RSUs Outstanding  
     Number
of RSUs
     Weighted Average
Fair Value

Per Unit
 

Granted and unvested at December 31, 2013

     —         $ —     

RSUs granted

     363         10.36   

RSUs vested

     —           —     

RSUs forfeited

     —           —     
  

 

 

    

Granted and unvested at June 30, 2014

     363       $ 10.36   
  

 

 

    

Employee Stock Purchase Plan

In February 2013, the Company’s Board of Directors and stockholders approved the 2013 Employee Stock Purchase Plan (“2013 ESPP”), under which 1,000 shares of common stock were originally reserved for issuance. The 2013 ESPP became effective on March 22, 2013. The 2013 ESPP provides generally for six-month purchase periods and the purchase price for shares of common stock purchased under the 2013 Employee Stock Purchase Plan will be 85% of the lesser of the fair market value of the common stock on (i) the first trading day of the applicable offering period and (ii) the last trading day of each purchase period in the applicable offering period. On January 1 of each of the first 10 calendar years following the first offering date, the number of shares reserved under the 2013 Employee Stock Purchase Plan will automatically increase by an amount equal to 1% of the total outstanding shares as of immediately preceding December 31, but not to exceed 700 shares. Under the terms of the 2013 ESPP, the shares available for issuance increased by approximately 329 shares on January 1, 2014. During the three and six months ended June 30, 2014, 90 shares were issued under the 2013 ESPP. During the three and six months ended June 30, 2013, no shares were issued under the 2013 ESPP.

9. Stock-Based Compensation

For stock-based awards granted by the Company, stock-based compensation cost is measured at grant date based on the fair value of the award and is expensed over the requisite service period. The Company recorded stock-based compensation of $1,941 and $1,309 for the three months ended June 30, 2014 and 2013, respectively, and $3,438 and $2,534 for the six months ended June 30, 2014 and 2013, respectively.

 

13


Table of Contents

Stock Options

The Company uses the Black-Scholes option pricing model to estimate the fair value of options. This model requires the input of highly subjective assumptions including the expected volatility, risk-free interest rate, and the expected life of options. The Company used the following assumptions:

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  

Dividend yield

     —          —          —          —     

Expected volatility

     51.3     55.8     51.3     55.8

Risk-free interest rate

     1.92     0.89     1.92     1.10

Expected life of options (in years)

     6.25        6.25        6.25        6.25   

Forfeiture rate

     7.0     7.0     7.0     7.0

As the Company has limited historical option exercise data, the expected term of the stock options granted to employees was calculated based on the simplified method. Under the simplified method, the expected term is equal to the average of an option’s weighted-average vesting period and its contractual term. Pursuant to the SEC Staff Accounting Bulletin (“SAB”) No. 110, the Company is permitted to continue using the simplified method until sufficient information regarding exercise behavior, such as historical exercise data or exercise information from external sources, becomes available. The Company estimates the expected volatility of its common stock on the date of grant based on the historical stock volatilities of similar publicly-traded entities over a period equal to the expected terms of the options, as the Company does not have sufficient trading history to use the volatility of its own common stock. The Company has no history or expectation of paying cash dividends on its common stock. The risk-free interest rate is based on the U.S. Treasury yield for a term consistent with the expected life of the options in effect at the time of grant.

Cash proceeds from the exercise of stock options were $1,532 and $1,024 for the six months ended June 30, 2014 and 2013, respectively.

Compensation expense is recognized ratably over the requisite service period. As of June 30, 2014, there was $19,715 of unrecognized compensation cost related to options, which is expected to be recognized over a weighted-average period of 3.1 years.

Given the lack of a public market for the Company’s outstanding common and preferred stock through March 27, 2013, the Company’s Board of Directors established an estimate of fair value for these securities as well as for options and warrants to purchase these securities. The fair value of the Company’s common stock as used in the determination of the exercise price of stock options was estimated by the Company’s Board of Directors based on factors such as the liquidation preference, dividends and other rights of the outstanding preferred stock; recent financial and operating performance; the status of the Company’s development and sales efforts, revenue growth and additional objectives; the likelihood and proximity of an initial public offering; and the valuation of comparable companies that are publicly traded. Subsequent to the closing of the Company’s initial public offering, the Company has used the closing price of the Company’s common stock on the date of the stock option grant as the fair value of the Company’s common stock and the exercise price of the stock options.

Restricted Stock and RSUs

As of June 30, 2014, there was $8,529 of unrecognized compensation cost related to restricted stock and RSUs, which is expected to be recognized over a weighted-average period of 2.1 years. The Company uses the fair market value of the underlying common stock on the dates of grant to determine the fair value of restricted stock and RSUs. Stock-based compensation expense related to these awards are recognized on a straight-line basis over the service period of the award for the estimated number of shares that are ultimately expected to vest.

Employee Stock Purchase Plan

The Company estimates the fair value of purchase rights under the ESPP using the Black-Scholes valuation model. The fair value of each purchase right under the ESPP was estimated on the date of grant using the Black-Scholes option valuation model and the straight-line attribution approach with assumptions substantially similar to those used for the valuation of our stock option awards.

10. Income Taxes

The Company’s quarterly provision for income taxes is based on an estimated effective annual income tax rate. The Company’s quarterly provision for income taxes also includes the tax impact of certain unusual or infrequently occurring items, if any, including changes in judgment about valuation allowances and effects of changes in tax laws or rates, in the interim period in which they occur.

 

14


Table of Contents

The income tax benefit for the three months ended June 30, 2014 was $2,440 on a pre-tax loss of $9,231 and for the six months ended June 30, 2014 was $2,252 on a pre-tax loss of $17,348. Income tax expense for the three months ended June 30, 2013 was $149 on a pre-tax loss of $8,948 and for the six months ended June 30, 2013 was $255 on a pre-tax loss of $19,343. The benefit recorded for the three and six months ended June 30, 2014 was primarily attributable to a decrease in our valuation allowances of $2,603 due to deferred tax liabilities recorded as part of our acquisition of Perfect Audience. As of June 30, 2014, the income tax rate varies from the United States statutory income tax rate primarily due to valuation allowances in the United States and taxable income generated by the Company’s foreign wholly-owned subsidiaries.

The Company reviews the likelihood that it will realize the benefit of its deferred tax assets and, therefore, the need for valuation allowances on a quarterly basis. There is no corresponding income tax benefit recognized with respect to losses incurred and no corresponding income tax expense recognized with respect to earnings generated in jurisdictions with a valuation allowance. This causes variability in the Company’s effective tax rate. The Company will maintain the valuation allowances until it is more likely than not that the net deferred tax assets will be realized.

As of June 30, 2014, the Company’s gross uncertain tax benefits totaled $1,088. As of June 30, 2014, none of the Company’s uncertain tax benefits, including related accrued interest and penalties, would affect the Company’s effective tax rate if recognized.

11. Net Loss Per Share Available to Common Stockholders

Basic net loss per share available to common stockholders is calculated by dividing the net loss available to common stockholders by the weighted-average number of shares of common stock outstanding for the period. Net loss available to common stockholders is calculated using the two class method as net loss less the preferred stock dividend for the period less the amount of net loss, if any, allocated to the preferred stock based on weighted preferred stock outstanding during the period relative to total stock outstanding during the period. As the Company’s preferred stockholders did not have the contractual obligations to share in the losses of the Company, no loss was allocated to the convertible preferred stockholders in the determination of net loss available to common stockholders. The weighted-average number of shares of common stock used to calculate the Company’s basic net loss per share available to common stockholders excludes those shares subject to repurchase related to unvested common shares, stock options that were exercised prior to vesting, restricted stock issued and RSUs settled for shares of common stock as these shares are not deemed to be outstanding for accounting purposes until they vest. The diluted net loss per share of common stock is computed by dividing the net loss using the weighted-average number of shares of common stock, excluding common stock subject to repurchase, and, if dilutive, potential shares of common stock outstanding during the period. Potential shares of common stock consist of common stock subject to repurchase, stock options to purchase common stock, restricted common stock issued, RSUs settled for shares of common stock, warrants to purchase convertible preferred stock (using the treasury stock method) and the conversion of the Company’s convertible preferred stock (using the “if converted” method). The following table presents the calculation of basic and diluted net loss per share:

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  

Numerator:

        

Net loss

   $ (6,791   $ (9,097   $ (15,096   $ (19,598
  

 

 

   

 

 

   

 

 

   

 

 

 

Denominator:

        

Weighted average number of shares, basic and diluted

     33,771        32,237        33,563        19,871   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per share available to common stockholders

        

Basic and diluted net loss per common share available to common stockholders

   $ (0.20   $ (0.28   $ (0.45   $ (0.99
  

 

 

   

 

 

   

 

 

   

 

 

 

 

15


Table of Contents

The following table presents the potential shares of common stock outstanding that were excluded from the computation of diluted net loss per share available to common stockholders for the periods presented because including them would have been anti-dilutive:

 

     Three and Six Months Ended June 30,  
     2014      2013  

Options to purchase common stock

     6,260         4,993   

Restricted stock units

     363         —     

Restricted common stock

     630         —     

Common stock subject to repurchase

     116         252   
  

 

 

    

 

 

 
     7,369         5,245   
  

 

 

    

 

 

 

12. Segment Reporting

The Company defines the term “chief operating decision maker” to be the Chief Executive Officer. The Chief Executive Officer reviews the financial information presented on a consolidated basis for purposes of allocating resources and evaluation of financial performance. Accordingly, the Company has determined that it operates as a single reportable and operating segment.

Revenues by geographic area, based on the billing location of the customer, were as follows:

 

     Three Months Ended June 30,      Six Months Ended June 30,  
     2014      2013      2014      2013  

United States of America

   $ 15,800       $ 12,645       $ 30,680       $ 24,623   

International

     8,053         5,573         15,989         10,750   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total revenues, net

   $ 23,853       $ 18,218       $ 46,669       $ 35,373   
  

 

 

    

 

 

    

 

 

    

 

 

 

Long-lived assets by geographic area were as follows:

 

     June 30, 2014      December 31,
2013
 

United States of America

   $           12,864       $ 14,050   

International

     655         367   
  

 

 

    

 

 

 

Total long-lived assets, net

   $ 13,519       $ 14,417   
  

 

 

    

 

 

 

13. Commitments and Contingencies

Operating Leases

Rent expense for the three months ended June 30, 2014 and 2013 was $1,866 and $1,648, respectively, and for the six months ended June 30, 2014 and 2013 was $3,789 and $3,264, respectively.

 

16


Table of Contents

Future minimum lease payments for significant operating leases as of June 30, 2014 were as follows:

 

Periods Ending December 31,

  

2014

   $ 3,084   

2015

     2,400   

2016

     817   

2017

     819   

2018 and thereafter

     243   
  

 

 

 
   $     7,363   
  

 

 

 

Legal Matters

From time to time, the Company may be involved in lawsuits, claims, investigations and proceedings, consisting of intellectual property, commercial, employment and other matters, which arise in the ordinary course of business. In accordance with U.S. generally accepted accounting principles (“GAAP”), the Company records a liability when it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. These provisions are reviewed at least quarterly and adjusted to reflect the impact of negotiations, settlements, ruling, advice of legal counsel and other information and events pertaining to a particular case. Litigation is inherently unpredictable. If any unfavorable ruling was to occur in any specific period or if a loss becomes probable and estimable, there exists the possibility of a material adverse impact on the Company’s results of operations, financial position or cash flows.

Indemnification

The Company enters into standard indemnification agreements in the ordinary course of business. Pursuant to the agreements, each party may indemnify, defend and hold the other party harmless with respect to such claim, suit or proceeding brought against it by a third party alleging that the indemnifying party’s intellectual property infringes upon the intellectual property of the third party, or results from a breach of the indemnifying party’s representations and warranties or covenants, or that results from any acts of negligence or willful misconduct. The term of these indemnification agreements is generally perpetual any time after execution of the agreement. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited. Historically, the Company has not been obligated to make significant payments for these obligations and no liabilities have been recorded for these obligations on the consolidated balance sheets as of June 30, 2014 and December 31, 2013.

The Company also indemnifies its officers and directors for certain events or occurrences, subject to certain limits, while the officer or director is or was serving at the Company’s request in such capacity. The maximum amount of potential future indemnification is unlimited; however, the Company has a Directors and Officers insurance policy that limits its exposure and enables the Company to recover a portion of any future amounts paid. Historically, the Company has not been obligated to make any payments for these obligations and no liabilities have been recorded for these obligations on the consolidated balance sheets as of June 30, 2014 and December 31, 2013.

Other Contingencies

The Company is subject to claims and assessments from time to time in the ordinary course of business. The Company’s management does not believe that any such matters, individually or in the aggregate, will have a material adverse effect on the Company’s financial position, results of operations or cash flows.

 

17


Table of Contents

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

The following discussion and analysis of our financial condition, results of operations and cash flows should be read in conjunction with the (1) unaudited condensed consolidated financial statements and the related notes thereto included elsewhere in this Quarterly Report on Form 10-Q, and (2) the audited consolidated financial statements and notes thereto and management’s discussion and analysis of financial condition and results of operations for the fiscal year ended December 31, 2013 included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the SEC on February 28, 2014. This Quarterly Report on Form 10-Q contains “forward-looking statements” within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements are often identified by the use of words such as “may,” “will,” “expect,” “believe,” “anticipate,” “intend,” “could,” “should,” “potential,” “predict,” “project,” “estimate,” or “continue,” and similar expressions or variations. Such forward-looking statements are subject to risks, uncertainties and other factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those identified herein, and those discussed in the section titled “Risk Factors”, set forth in Part II, Item 1A of this Form 10-Q. We disclaim any obligation to update any forward-looking statements to reflect events or circumstances after the date of such statements.

Overview

We provide a leading cloud-based digital advertising management platform that enables advertisers and agencies to improve performance of their online advertising campaigns, realize efficiencies and time savings, and make better business decisions. Our Revenue Acquisition Management platform is a software-as-a-service, or SaaS, analytics, workflow, and optimization solution for marketing professionals, enabling them to effectively manage their digital advertising spend across search, display, social and mobile advertising channels. Our software solution is designed to help our customers:

 

    measure the effectiveness of their advertising campaigns through our proprietary reporting and analytics capabilities;

 

    manage and execute campaigns through our intuitive user interface and underlying technology that streamlines and automates key functions, such as ad creation and bidding, across multiple publishers and channels; and

 

    optimize campaigns across multiple publishers and channels in real time based on market and business data to achieve desired revenue outcomes using our predictive bid management technology.

We market and sell our solutions to advertisers directly and through leading advertising agencies. We generate revenues from subscription contracts under which we charge fees generally based upon the amount of advertising spend that our customers manage through our platform. We have achieved 21 consecutive quarters of revenue growth. For the three months ended June 30, 2014, our revenues grew 31% to $23.9 million from $18.2 million for the three months ended June 30, 2013. For the six months ended June 30, 2014, our revenues grew 32% to $46.7 million from $35.4 million for the six months ended June 30, 2013. We incurred a net loss of $6.8 million and $15.1 million for the three and six months ended June 30, 2014, respectively. We must continue to increase revenues at a higher rate than our cost of revenues and operating expenses increase, or we will need to make additional efforts to decrease cost of revenues and operating expenses as a percentage of revenues in order to begin to generate net income.

We earn revenues principally from subscription contracts under which we provide advertisers with access to our search, social and display advertising management platforms, either directly or through the advertiser’s relationship with an agency that has a contract with us. In accordance with the subscription contracts, we charge fees generally based upon the amount of advertising spend that our customers manage through our platform. Our contracts are generally one year or longer in length. Under our subscription contracts with most of our direct advertisers and some of our agency customers, customers are contractually committed to a monthly minimum fee, which is payable on a monthly basis over the duration of the contract and is generally greater than one-half of our estimated monthly revenues from these customers, at the time the contract is signed. However, most of our subscription contracts with our advertising agency customers do not include a committed monthly minimum fee. Our contractual arrangement is with the advertising agency and the advertiser is not a party to the terms of the contract. Accordingly, most advertisers through our agency customers do not have a commitment to use our services and the advertisers may be added or removed from our platform at the discretion of the respective agency. We invoice the advertising agency for the amounts due under the contract. Historically, approximately half of our revenues have been earned from advertising agency customers. Our subscription fee under most contracts is variable based upon the value of advertising spend that our customers manage through our platform. Our deferred revenues consist of the unearned portion of billed subscription fees.

Our subscription contracts indicate the date at which we begin invoicing our customers, which is generally the first day of the month following the execution of the contract. We generally invoice the greater of the minimum fee or the percentage of advertising spend on our platform. The implementation process for new advertisers is typically four to six weeks; however, we generally do not charge a separate implementation fee under our subscription contracts.

 

18


Table of Contents

Our implementation and customer support personnel, as well as costs associated with our operating infrastructure, are included in our cost of revenues. Our cost of revenues and operating expenses have increased in absolute dollars due to our need to increase our headcount to grow our business and to increase data center capacity to support customer revenue growth on our platform. We expect that our cost of revenues will continue to increase in absolute dollars as we continue to invest in our growth.

In order to grow revenues, we will invest in sales and marketing activities by adding sales representatives globally to target new advertisers and agencies. We will also invest in research and development to further expand our platform and support for additional publishers. All of these activities will require us to make investments, particularly in research and development and sales and marketing, and if these investments do not generate additional customers or additional advertising spend managed by our platform, our future operating results could be harmed.

The majority of our revenues are derived from our advertisers in the United States. We believe the markets outside of the United States offer an opportunity for growth and we intend to make additional investments in sales and marketing to expand in these markets. Advertisers from outside of the United States represented 34% of total revenues for the three and six months ended June 30, 2014, and 31% and 30% for the three and six months ended June 30, 2013, respectively.

We were incorporated in 2006 and initially focused on building the core elements of our cloud-based platform, which we currently use to service our customers. In September 2007, we launched Marin Enterprise, which targets large advertisers and agencies. We released Marin Professional Edition in March 2011, which targets mid-market advertisers and agencies. We have an iterative development process and we typically release new features every one to two months. Additionally, we have continued to expand internationally, opening our London office in 2009, our Paris, Hamburg, Singapore and Sydney offices in 2011, our Dublin and Tokyo offices in 2012 and our Shanghai office in 2013.

We completed our acquisition of NowSpots, Inc., which conducted business as Perfect Audience (“Perfect Audience”) in June 2014 to complement our product offerings, which is more fully described in Note 2 to our accompanying condensed consolidated financial statements included in this Quarterly Report on Form 10-Q.

Key Factors Affecting Our Performance

Number of Active Advertisers

We define an active advertiser as an advertiser from whom we recognized revenues in excess of $2,000 in at least one month in a period. We believe the $2,000 threshold best identifies advertisers who are actively using our platform. We focus on revenues in at least one month in a period to account for seasonality in advertising spend by our customers, some of whom may not run digital advertising campaigns in every month of a year but still represent an active advertiser on our platform. We count organizations within the same corporate structure as one advertiser, even if they have signed separate contracts with us for different brands or divisions, whether they are a direct advertiser or an advertiser through an agency. When our subscription contract is with an advertising agency, we include each advertiser whose advertising spend is managed by the agency through our platform as a different advertiser. Advertisers who have advertising spend managed by multiple agencies on our platform are counted as one advertiser. We believe that our ability to increase the number of active advertisers using our platform is a leading indicator of our ability to grow revenues. We had 776 and 584 active advertisers in the three months ended June 30, 2014 and 2013, respectively. While our active advertiser count has increased over time, this metric can also fluctuate from quarter to quarter due to seasonality and timing and amount of revenues contribution from new active advertisers and therefore, there is not necessarily a direct correlation between the amount of increased revenues and the change in active advertisers in a particular period.

Revenue Retention Rate

We believe our ability to retain and grow revenues from our existing advertisers is an indicator of the stability of our revenue base and the long-term value of our advertiser relationships. We assess our ability to retain and grow subscription revenues using a metric we refer to as revenue retention rate. We calculate our revenue retention rate metric by dividing retained revenues by retention base revenues. We define retention base revenues as revenues from all advertisers in the corresponding prior period, and we define retained revenues as revenues from all advertisers from the prior period that remain advertisers in the current period. This metric is calculated on a quarterly basis, and for annual periods, we use an average of the quarterly metrics. Although we have lost individual advertisers over time, advertisers who have remained on our platform have generally, in the aggregate, increased their advertising spend on our platform. At the same time, advertising spend on our platform may vary quarter to quarter, and as a result, quarterly revenue retention rates may fluctuate quarter to quarter. Our annual revenue retention rate was 97% during the year ended December 31, 2013.

 

19


Table of Contents

Annualized Advertising Spend on our Platform

We calculate annualized advertising spend as advertising spend in the last month of a period multiplied by 12. We believe that increases in annualized advertising spend generally lead to increases in revenues over time. However, we believe that other factors related to the terms of customer agreements and seasonality can make it difficult to directly correlate annual advertising spend to changes in revenues in a particular period. Our customers collectively managed $6.0 billion in annualized advertising spend on our platform in December 2013.

Components of Results of Operations

Revenues

We generate revenues principally from subscription contracts under which we provide advertisers with access to our search, social and display advertising management platforms, either directly or through the advertiser’s relationship with an agency with whom we have a contract. Under our subscription contracts with most direct advertisers and some of our agency customers, customers contractually commit to a monthly minimum fee, which is generally greater than one-half of our estimated monthly revenues from these customers, at the time the contract is signed. However, most of our subscription contracts with our advertising agency customers do not include a committed monthly minimum fee. Additionally, advertisers we serve through our arrangements with our advertising agencies generally do not have a minimum commitment to continue using our services. Our subscription fee under most contracts is variable based upon the value of advertising spend that our customers manage through our platform, although some customers pay a flat monthly rate over the term of their subscription contract. Our deferred revenues consist of the unearned portion of billed subscription fees.

Cost of Revenues

Cost of revenues primarily includes personnel costs, consisting of salaries, benefits, bonuses and stock-based compensation, for employees associated with our cloud infrastructure and global services for implementation and ongoing customer service organizations. Other costs of revenues include fees paid to contractors who supplement our support and data center personnel, expenses related to the use of a third-party data center, depreciation of data center equipment, amortization of capitalized internal-use software development costs, amortization of intangible assets and allocated overhead.

We intend to continue to invest additional resources in our global services teams and in the capacity of our hosting service infrastructure. As we continue to invest in technology innovation through our research and development organization, we expect to have increased amortization of capitalized internal-use software development costs. We expect that this investment in technology should not only expand the breadth and depth of our Revenue Acquisition Management platform but also increase the efficiency of how we deliver these solutions, enabling us to improve our gross margin over time. The level and timing of investment in these areas could affect our cost of revenues in the future.

Sales and Marketing Expenses

Sales and marketing expenses include personnel costs, sales commissions and other costs including travel and entertainment, marketing and promotional events, public relations, marketing activities, professional fees and allocated overhead. All of these costs are expensed as incurred, including sales commissions. Our commission plans provide that payment of commissions to our sales representatives are paid based on the actual amounts we invoice customers over a period that is generally up to five months following the execution of the applicable customer contract.

We plan to continue investing in sales and marketing by increasing the number of sales and account management employees, expanding our domestic and international sales and marketing activities, building brand awareness and sponsoring additional marketing events, which we believe will enable us to add new customers and increase penetration within our existing customer base. We expect that, in the future, sales and marketing expenses will increase in absolute dollars and continue to be our largest operating expense category.

Research and Development Expenses

Research and development expenses consist primarily of personnel costs for our product development and engineering employees and executives, including salaries, benefits, stock-based compensation expense and bonuses. Also included are non-personnel costs such as professional fees payable to third-party development resources, amortization of intangible assets and allocated overhead.

Our research and development efforts are focused on enhancing our software architecture, adding new features and functionality to our platform and improving the efficiency with which we deliver these services to our customers. We expect that, in the future, research and development expenses will increase in absolute dollars, partially offset by the capitalization of internal-use software development costs. We believe that these investments are necessary to maintain and improve our competitive position.

 

20


Table of Contents

General and Administrative Expenses

General and administrative expenses consist primarily of personnel costs, including salaries, benefits, stock-based compensation expense and bonuses, for our administrative, legal, human resources, finance and accounting employees and executives. Also included are non-personnel costs, such as travel-related expenses, audit fees, tax services and legal fees, as well as professional fees, insurance and other corporate expenses, along with amortization of intangible assets and allocated overhead.

We expect to incur incremental costs associated with supporting the growth of our business, both in terms of size and geographic expansion, and to meet the increased compliance requirements associated with our continued operation as a public company. Such costs include increases in our accounting and legal personnel, additional consulting, legal and audit fees, insurance costs, board of directors’ compensation and the costs of achieving and maintaining compliance with the Sarbanes-Oxley Act of 2002. As a result, we expect our general and administrative expenses to increase in absolute dollars in future periods but to decrease as a percentage of revenues over time.

Results of Operations

The following table is a summary of our consolidated statements of operations. The period-to-period comparisons of results are not necessarily indicative of results for future periods.

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  
     (in thousands)     (in thousands)  

Revenues, net

   $ 23,853      $ 18,218      $ 46,669      $ 35,373   

Cost of revenues (1) (2)

     8,763        7,696        17,146        15,068   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     15,090        10,522        29,523        20,305   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating expenses

        

Sales and marketing (1) (2)

     11,978        10,350        23,966        20,809   

Research and development (1) (2)

     6,627        4,904        12,710        9,983   

General and administrative (1) (2)

     5,368        4,026        9,786        8,074   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     23,973        19,280        46,462        38,866   
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from operations

     (8,883     (8,758     (16,939     (18,561

Interest expense, net

     (62     (109     (128     (293

Other expenses, net

     (286     (81     (281     (489
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss before benefit from (provision for) income taxes

     (9,231     (8,948     (17,348     (19,343

Benefit from (provision for) income taxes

     2,440        (149     2,252        (255
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

   $ (6,791   $ (9,097   $ (15,096   $ (19,598
  

 

 

   

 

 

   

 

 

   

 

 

 

Other financial data:

        

Adjusted EBITDA (3)

   $ (5,460   $ (6,988   $ (10,841   $ (14,963

 

21


Table of Contents
(1) Stock-based compensation included in the consolidated statements of operations data above was as follows:

 

     Three Months Ended June 30,      Six Months Ended June 30,  
     2014      2013      2014      2013  
     (in thousands)      (in thousands)  

Cost of revenues

   $ 192       $ 245       $ 403       $ 450   

Sales and marketing

     449         361         852         654   

Research and development

     649         303         1,086         611   

General and administrative

     651         400         1,097         819   

 

(2) Amortization of intangible assets included in the consolidated statements of operations data above was as follows:

 

     Three Months Ended June 30,      Six Months Ended June 30,  
     2014      2013      2014      2013  
     (in thousands)      (in thousands)  

Cost of revenues

   $ 57       $ —         $ 57       $ —     

Sales and marketing

     37         —           37         —     

Research and development

     57         —           57         —     

General and administrative

     11         —           11         —     

 

(3) We define Adjusted EBITDA as net loss, adjusted for stock-based compensation expense, depreciation and amortization, capitalized internal-use software development costs, interest expense, net, benefit from or provision for income taxes, other expenses, net and acquisition costs. Adjusted EBITDA is a financial measure that is not calculated in accordance with U.S generally accepted accounting principles (“GAAP”). Adjusted EBITDA should not be considered as an alternative to net loss, operating loss or any other measure of financial performance calculated and presented in accordance with GAAP. We prepare Adjusted EBITDA to eliminate the impact of items that we do not consider indicative of our core operating performance. You are encouraged to evaluate these adjustments and the reason we consider them appropriate.

We believe Adjusted EBITDA is useful to investors in evaluating our operating performance for the following reasons:

 

    Adjusted EBITDA is widely used by investors and securities analysts to measure a company’s operating performance without regard to items, such as stock-based compensation expense, depreciation and amortization, capitalized internal-use software development costs, interest expense, net, provision for income taxes and other income or expense, net, that can vary substantially from company to company depending upon their financing, capital structures and the method by which assets were acquired;

 

    Our management uses Adjusted EBITDA in conjunction with GAAP financial measures for planning purposes, including the preparation of our annual operating budget, as a measure of operating performance and the effectiveness of our business strategies and in communications with our board of directors concerning our financial performance; and

 

    Adjusted EBITDA provides consistency and comparability with our past financial performance, facilitates period-to-period comparisons of operations and also facilitates comparisons with other peer companies, many of which use similar non-GAAP financial measures to supplement their GAAP results.

We understand that, although Adjusted EBITDA is frequently used by investors and securities analysts in their evaluations of companies, Adjusted EBITDA has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our results of operations as reported under GAAP. These limitations include:

 

    Depreciation and amortization are non-cash charges, and the assets being depreciated or amortized will often have to be replaced in the future; Adjusted EBITDA does not reflect any cash requirements for these replacements;

 

    Adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs or contractual commitments;

 

    Adjusted EBITDA does not reflect cash requirements for income taxes and the cash impact of other income or expense; and

 

    Other companies may calculate Adjusted EBITDA differently than we do, limiting its usefulness as a comparative measure.

 

22


Table of Contents

The following table presents a reconciliation of net loss, the most comparable GAAP measure, to Adjusted EBITDA for each of the periods indicated:

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  
     (in thousands)     (in thousands)  

Net loss

   $ (6,791   $ (9,097   $ (15,096   $ (19,598

Depreciation

     1,367        1,121        2,717        2,129   

Amortization of internally developed software

     465        256        910        483   

Amortization of intangible assets

     162        —          162        —     

Interest expense, net

     62        109        128        293   

(Benefit from) provision for income taxes

     (2,440     149        (2,252     255   
  

 

 

   

 

 

   

 

 

   

 

 

 

EBITDA

     (7,175     (7,462     (13,431     (16,438

Other expenses, net

     286        81        281        489   

Capitalization of internally developed software

     (729     (916     (1,346     (1,548

Stock-based compensation expense

     1,941        1,309        3,438        2,534   

Acquisition related expenses

     217        —          217        —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

   $ (5,460   $ (6,988   $ (10,841   $ (14,963
  

 

 

   

 

 

   

 

 

   

 

 

 

 

23


Table of Contents

The following table sets forth our consolidated results of operations for the specified periods as a percentage of our revenues for those periods.

 

     Three Months Ended June 30,     Six Months Ended June 30,  
     2014     2013     2014     2013  

Revenues, net

     100     100     100     100

Cost of revenues

     37        42        37        43   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     63        58        63        57   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating expenses

        

Sales and marketing

     50        57        51        59   

Research and development

     28        27        27        28   

General and administrative

     23        22        21        23   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     101        106        99        110   
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from operations

     (38     (48     (36     (53

Interest expense, net

     —          (1     —          (1

Other expenses, net

     (1     —          (1     (1
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss before benefit from (provision for) income taxes

     (39     (49     (37     (55

Benefit from (provision for) income taxes

     10        (1     5        (1
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

     (29 )%      (50 )%      (32 )%      (56 )% 
  

 

 

   

 

 

   

 

 

   

 

 

 

Comparison of the Three and Six Months Ended June 30, 2014 and 2013

Revenues

 

     Three Months Ended June 30,      Change     Six Months Ended June 30,      Change  
     2014      2013      $      %     2014      2013      $      %  
     (dollars in thousands)     (dollars in thousands)  

Total revenues

   $ 23,853       $ 18,218       $ 5,635         31   $ 46,669       $ 35,373       $ 11,296         32

Subscription revenues for the three and six months ended June 30, 2014 increased by $5.6 million and $11.3 million, respectively, or 31% and 32%, respectively, compared to the corresponding periods in 2013. This increase was driven by growth in revenues from both new and existing advertisers in all geographies as our ongoing investment in sales and marketing resources resulted in increased worldwide demand for our platform. During the three and six months ended June 30, 2014, we generated $0.8 million and $1.5 million, respectively, of revenue from new advertisers. We define a new advertiser as an advertiser from whom we earned revenue during the current fiscal period and from whom we did not earn any revenue during the previous corresponding period. There were no customers that accounted for greater than 10% of our revenues in either of the three or six months ended June 30, 2014 or 2013.

Revenues in the three and six months ended June 30, 2014 from the United States locations represented 66% of revenues, and in the three and six months ended June 30, 2013, revenues from the United States locations represented 69% and 70%, respectively, of revenues.

 

24


Table of Contents

Cost of Revenues and Gross Margin

 

     Three Months Ended June 30,     Change     Six Months Ended June 30,     Change  
     2014     2013     $      %     2014     2013     $      %  
     (dollars in thousands)     (dollars in thousands)  

Cost of revenues

   $ 8,763      $ 7,696      $ 1,067         14   $  17,146      $ 15,068      $ 2,078         14

Gross profit

     15,090        10,522          4,568         43          29,523          20,305          9,218         45   

Gross profit percentage

     63     58          63     57     

Cost of revenues for the three and six months ended June 30, 2014 increased $1.1 million and $2.1 million, respectively, or 14% for each of the periods presented, compared to the corresponding periods in 2013. This reflected an increase in the number of global services and platform infrastructure personnel, resulting in increases of $0.2 million and $0.5 million, respectively, in compensation expense; increases of $0.1 million and $0.3 million, respectively, in allocated overhead and increases of $0.1 million and $0.2 million, respectively, in travel costs during the three and six months ended June 30, 2014. We also experienced increases of $0.5 million and $1.0 million of depreciation and amortization expense and $0.2 million and $0.3 million in hosting costs during the three and six months ended June 30, 2014, respectively, to support the increased use of our hosted platform.

Our gross margin increased to 63% during the three and six months ended June 30, 2014 from 58% and 57%, respectively, compared to the corresponding periods in 2013. These increases were due to the achievement of greater operational efficiency from personnel dedicated to our cloud infrastructure and global services precipitated by upgraded functionality and capabilities delivered by our engineering team. Compensation for these personnel was 20% of revenues during the three and six months ended June 30, 2014, as compared to 25% during the same periods in 2013.

Sales and Marketing

 

     Three Months Ended June 30,     Change     Six Months Ended June 30,     Change  
     2014     2013     $      %     2014     2013     $      %  
     (dollars in thousands)     (dollars in thousands)  

Sales and marketing

   $ 11,978      $ 10,350      $   1,628         16   $ 23,966      $ 20,809      $   3,157         15

Percent of revenues, net

     50     57          51     59     

Sales and marketing expenses for the three and six months ended June 30, 2014 increased $1.6 million and $3.2 million, respectively, or 16% and 15%, respectively, compared to the corresponding periods in 2013. The increases were primarily due to an increase in global sales and marketing headcount, contributing to an increase of $1.1 million and $2.7 million, respectively, in personnel-related costs, consisting primarily of increased employee compensation, benefits and travel costs associated with our sales force during the three and six months ended June 30, 2014. The remaining $0.5 million increases during the three and six months ended June 30, 2014 are the result primarily of an increase in allocated overhead of $0.2 million and $0.4 million, respectively due to the growth in headcount relative to the rest of the Company, as well as an increase in expenses for marketing tools and event costs of $0.3 million and $0.2 million, respectively, due to our continued marketing efforts. During the six months ended June 30, 2014, recruiting fees decreased $0.2 million relative to the corresponding period in the prior year, due primarily to delays in the hiring process.

Research and Development

 

     Three Months Ended June 30,     Change     Six Months Ended June 30,     Change  
     2014     2013     $      %     2014     2013     $      %  
     (dollars in thousands)     (dollars in thousands)  

Research and development

   $ 6,627      $ 4,904      $   1,723         35   $ 12,710      $ 9,983      $   2,727         27

Percent of revenues, net

     28     27          27     28     

Research and development expenses for the three and six months ended June 30, 2014 increased $1.7 million and $2.7 million, respectively, or 35% and 27%, respectively, compared to the corresponding periods in 2013. This reflected an increase in the number of research and development personnel, resulting in an increase of $1.5 million and $2.3 million, respectively, in compensation expense during the three and six months ended June 30, 2014. Allocated overhead increased $0.1 million and $0.2 million, respectively, during the three and six months ended June 30, 2014 due to the increase in headcount.

 

25


Table of Contents

General and Administrative

 

                                                                                                       
     Three Months Ended June 30,     Change     Six Months Ended June 30,     Change  
     2014     2013     $      %     2014     2013     $      %  
     (dollars in thousands)     (dollars in thousands)  

General and administrative

   $ 5,368      $ 4,026      $   1,342         33   $   9,786      $   8,074      $   1,712         21

Percent of revenues, net

     23     22          21     23     

General and administrative expenses for the three and six months ended June 30, 2014 increased $1.3 million and $1.7 million, respectively, or 33% and 21%, respectively, compared to the corresponding periods in 2013. Compensation, benefits and other employee-related expenses increased by $0.6 million and $0.7 million, respectively, during the three and six months ended June 30, 2014, as we added employees to support the growth of the business. Professional fees and insurance expenses increased $0.4 million and $0.5 million, respectively, during the three and six months ended June 30, 2014, to support our global expansion and the acquisition of Perfect Audience in June 2014. We also incurred $0.2 million in costs directly related to the acquisition and are included in general and administrative expenses for the three and six months ended June 30, 2014. Bad debt expense for the three and six months ended June 30, 2014 increased $0.1 million and $0.2 million, respectively, compared to the same periods in 2013, which was relatively in line with the corresponding increases in sales during those periods.

Interest Expense, Net and Other Expenses, Net

 

                                                                                                       
     Three Months Ended June 30,     Change     Six Months Ended June 30,     Change  
     2014     2013     $      %     2014     2013     $     %  
     (dollars in thousands)     (dollars in thousands)  

Interest expense, net and other expenses, net

   $ (348   $ (190   $ 158         83   $ (409   $ (782   $ (373     (48 )% 

Other expenses, net primarily consists of foreign currency transaction gains and losses. The increase of $0.2 million, or 83%, in other expenses, net and interest expense during the three months ended June 30, 2014 was primarily due to a increase of $0.2 million in foreign exchange losses. The decrease of $0.4 million, or 48%, in other expenses, net and interest expense during the six months ended June 30, 2014 was primarily due to a decrease of $0.2 million in interest expense. Other expenses, net during the six months ended June 30, 2014 also did not include $0.2 million in losses resulting from the change in the fair value of freestanding preferred stock warrants incurred during the same period in 2013. Upon the consummation of the Company’s initial public offering, those warrants converted into warrants to purchase common stock and were reclassified from liabilities to additional paid-in capital. As a result, changes in their fair value are no longer recorded on the condensed consolidated statement of comprehensive loss.

(Benefit from) Provision for Income Taxes

 

                                                                                                       
     Three Months Ended June 30,      Change     Six Months Ended June 30,      Change  
     2014     2013      $     %     2014     2013      $     %  
     (dollars in thousands)     (dollars in thousands)  

(Benefit from) provision for income taxes

   $ (2,440   $ 149       $ (2,589     (1,738 )%    $ (2,252   $ 255       $ (2,507     (983 )% 

Benefit from income taxes for the three and six months ended June 30, 2014 increased $2.6 million and $2.5 million, respectively, primarily due to a decrease in our valuation allowances of $2.6 million as a result of deferred tax liabilities recorded as part of our acquisition of Perfect Audience.

Liquidity and Capital Resources

Since our incorporation in March 2006, we have relied primarily on sales of our capital stock to fund our operating activities. To date, we have raised $105.7 million, net of related issuance costs, in funding through private placements of our preferred stock. Additionally, we have utilized equipment lines to fund capital purchases and in March and April 2013, we raised net proceeds of $109.3 million in our initial public offering. As of June 30, 2014, our principal sources of liquidity were our cash and cash equivalents of $83.9 million, access to borrowing under our fully available $15.0 revolving credit facility and our capital lease arrangement. The approximate weighted average interest rate on our outstanding borrowings as of June 30, 2014, was 3%. Our primary operating cash requirements include the payment of compensation and related costs, as well as costs for our facilities and information technology infrastructure.

We presently maintain minimal cash balances in our foreign subsidiaries. As of June 30, 2014, we had $83.9 million of cash and cash equivalents, of which only $1.6 million was held by our foreign subsidiaries. In the future, we plan to increase the invoicing and remittance of proceeds from our international operations in our foreign subsidiaries’ bank accounts. We plan to re-invest the cash earned by our foreign subsidiaries to finance the growth of our foreign operations.

 

26


Table of Contents

Based on our current level of operations and anticipated growth, we believe that our existing cash and cash equivalents will be sufficient to fund our operations for at least the next 12 months. Our future capital requirements will depend on many factors, including our rate of revenue growth, the expansion of our sales and marketing activities, and the timing and extent of spending to support product development efforts and expansion into new territories, and the timing of introductions of new features and enhancements to our platform. To the extent that existing cash and cash equivalents are insufficient to fund our future activities, we may need to raise additional funds through public or private equity or debt financing.

Summary of Cash Flows

The following table sets forth a summary of our cash flows for the periods indicated:

 

     Six Months Ended March 31,  
     2014     2013  
     (in thousands)  

Net cash used in operating activities

   $ (14,243   $ (10,633

Net cash used in investing activities

     (6,902     (4,482

Net cash provided by financing activities

     660        104,154   

Operating Activities

Cash used in operating activities is primarily influenced by the amount of cash we invest in personnel and infrastructure to support the anticipated growth of our business and the increase in the number of advertisers using our platform. Cash used in operating activities has typically been affected by net losses and further increased by changes in our operating assets and liabilities, particularly in the areas of accounts receivable, prepaid expenses and other current assets, deferred revenue and accrued liabilities, adjusted for non-cash expense items such as depreciation, amortization and stock-based compensation.

Cash used in operating activities during the six months ended June 30, 2014 of $14.2 million was the result of a net loss of $15.1 million, primarily offset by non-cash expenses of $5.0 million, which primarily included depreciation, amortization, stock-based compensation expense and deferred income tax benefits. These non-cash expenses increased due to headcount growth, primarily related to continued investment in our business, as well as the acquisition of Perfect Audience. This was offset by a $4.2 million net change in working capital items (exclusive of changes due to net liabilities assumed from Perfect Audience), most notably an increase in accounts receivable of $1.9 million due to the increase in sales and the timing of related collections; an increase in prepaid expenses and other current assets, and other (noncurrent) assets, of $0.6 million related to the growth of our operations and timing of related disbursements; a decrease in deferred revenues of $1.1 million related to the timing of the collection of minimum fees at the start of our subscription agreements; and a net decrease in accounts payable and accrued expenses and other current and noncurrent liabilities of $0.6 million due to the timing of related disbursements and customer advances.

Cash used in operating activities during the six months ended June 30, 2013 of $10.6 million was the result of a net loss of $19.6 million, primarily offset by non-cash expenses of $5.6 million, which included depreciation, amortization and stock-based compensation expense. These non-cash expenses increased due to capital expenses and headcount growth, primarily related to continued investment in our business. These uses of funds were offset by a $3.4 million net change in working capital items, most notably an increase in deferred revenues of $3.1 million due to our efforts to invoice the total minimum fees due under the term of our subscription agreements at the start of the agreement, and an increase in accrued liabilities of $1.9 million, related to the growth of our operations and timing of related disbursements. These working capital changes were partially offset by a $1.5 million increase in prepaid expenses and other current assets, also related to the growth of our operations and timing of related disbursements.

Investing Activities

During the six months ended June 30, 2014 and 2013, investing activities consisted of purchases of property and equipment, including technology hardware and software to support our growth as well as capitalized internal-use software development costs. Purchases of property and equipment may vary from period-to-period due to the timing of the expansion of our operations and the development cycles of our internal-use hosted software platform. We expect to continue to invest in property and equipment and developing our software platform for the foreseeable future. Investing activities during the six months ended June 30, 2014 are also inclusive of cash paid for the acquisition of Perfect Audience of $5.3 million, net of cash acquired of $1.1 million.

 

27


Table of Contents

Financing Activities

Cash provided by financing activities during the six months ended June 30, 2014 was $0.7 million. This was primarily related to $2.3 million of proceeds from the exercise of stock options and contributions to our employee stock purchase plan. These amounts were partially offset by $1.7 million in net repayments under our credit facility and capital lease arrangement.

Cash provided by financing activities during the six months ended June 30, 2013 was $104.2 million. This was primarily related to proceeds from our initial public offering, net of paid offering costs, of $109.5 million as well as $1.0 million of proceeds from the exercise of stock options. These amounts were partially offset by $6.3 million in net repayments under our credit facility.

Contractual Obligations and Commitments

Our principal commitments consist of obligations under operating leases for office space and our data center. As of June 30, 2014, the future minimum payments under these commitments, as well as obligations under our credit facility, were as follows:

 

     Payments Due By Period  
     (In thousands)  
     Debt
Obligations
     Interest
Expense
Payments
     Operating
Leases
     Total  

Remaining six months of 2014

   $ 1,596       $ 43       $ 3,084       $ 4,723   

Year ending December 31, 2015

     2,464         33         2,400         4,897   

Year ending December 31, 2016

     652         1         817         1,470   

Year ending December 31, 2017

     —           —           819         819   

Year ending December 31, 2018 and thereafter

     —           —           243         243   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 4,712       $ 77       $ 7,363       $   12,152   
  

 

 

    

 

 

    

 

 

    

 

 

 

Purchase obligations under contracts that we can cancel without a significant penalty are not included in the table.

During the ordinary course of business, we include indemnification provisions within certain of our contracts. Pursuant to these arrangements, we may be obligated to indemnify, hold harmless and agree to reimburse the indemnified party for losses suffered or incurred by the indemnified party, generally parties with which we have commercial relations, in connection with certain intellectual property infringement claims by any third party with respect to our software. To date, there have not been any costs incurred in connection with such indemnification arrangements and therefore, there is no accrual for such amounts as of June 30, 2014.

Off-Balance Sheet Arrangements

During the periods presented, we did not have, nor do we currently have, any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes. We are therefore not exposed to any financing, liquidity, market or credit risk that could arise if we had engaged in those types of relationships.

Critical Accounting Policies and Significant Judgments and Estimates

The discussion and analysis of our financial condition and results of operations is based upon our condensed consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of these financial statements requires us to make estimates, assumptions and judgments that can have significant impact on the reported amounts of assets and liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities at the date of our financial statements. We base our estimates, assumptions and judgments on historical experience and various other factors that we believe to be reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions. On a regular basis we evaluate our estimates, assumptions and judgments and make changes accordingly.

We believe the estimates, assumptions and judgments involved in revenue recognition, stock-based compensation, including historical common stock valuations, accounting for income taxes, reserving for doubtful accounts receivable and the capitalization of internal-use software have the greatest potential impact on our Consolidated Financial Statements, and consider these to be our critical accounting policies. Historically, our estimates, assumptions and judgments relative to our critical accounting policies have not differed materially from actual results. There have been no material changes to our critical accounting policies and significant judgments and estimates as compared to the critical accounting policies and significant judgments and estimates as described in our Annual Report on Form 10-K for the year ended December 31, 2013 filed with the SEC on February 28, 2014 under “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

28


Table of Contents

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

We have operations both within the United States and internationally and we are exposed to market risks in the ordinary course of our business. These risks primarily include interest rate, foreign exchange and inflation risks, as well as risks relating to changes in the general economic conditions in the countries where we conduct business. To reduce certain of these risks, we monitor the financial condition of our large customers and limit credit exposure by setting credit limits as we deem appropriate. In addition, our investment strategy has been to invest in financial instruments that are highly liquid and readily convertible into cash, with maturity dates within three months from the date of purchase. To date, we have not used derivative instruments to mitigate the impact of our market risk exposures. We have also not used, nor do we intend to use, derivatives for trading or speculative purposes.

Interest Rate Risk

We are exposed to market risk related to changes in interest rates. Our investments are considered cash equivalents and primarily consist of money market funds, corporate debt securities and a certificate of deposit. As of June 30, 2014, we had cash and cash equivalents of $83.9 million. The carrying amount of our cash and cash equivalents reasonably approximates fair value, due to the short maturities of these investments. The primary objectives of our investment activities are the preservation of capital, the fulfillment of liquidity needs and the fiduciary control of cash and investments. We do not enter into investments for trading or speculative purposes. Our investments are exposed to market risk due to a fluctuation in interest rates, which may affect our interest income and the fair market value of our investments. Due to the short-term nature of our investment portfolio, we believe only dramatic fluctuations in interest rates would have a material effect on our investments. As such we do not expect our operating results or cash flows to be materially affected by a sudden change in market interest rates.

As of June 30, 2014 we had borrowings outstanding in the aggregate of $4.7 million. Our outstanding long-term borrowings consist of fixed and variable interest rate financial instruments. The interest rates of our borrowings range from 3.0% to 6.0%. A hypothetical 10% increase or decrease in interest rates relative to our current interest rates would not have a material impact on the fair values of all of our outstanding borrowings. Changes in interest rates would, however, affect operating results and cash flows, because of the variable rate nature of our borrowings. A hypothetical 10% increase or decrease in interest rates relative to interest rates as of June 30, 2014 would result in an insignificant impact to interest expense for 2014.

Foreign Currency Exchange Risk

We have foreign currency risks related to our revenues and operating expenses denominated in currencies other than the U.S. Dollar, primarily the Euro, British Pound Sterling, Canadian Dollar, Singapore Dollar, Japanese Yen, Chinese Yuan, and Australian Dollar. Revenues outside of the United States as a percentage of consolidated revenues were 34% and 30% during the six months ended June 30, 2014 and 2013, respectively. Changes in exchange rates may negatively affect our revenues and other operating results as expressed in U.S. Dollars. Aggregate foreign currency losses included in determining net loss were $0.3 million for the three and six months ended June 30, 2014 and $0.1 million and $0.3 million for the comparative periods in fiscal 2013. Transaction gains and losses are included in other expenses, net.

As our international operations grow, our risks associated with fluctuation in currency rates will become greater, and we will continue to reassess our approach to managing this risk. In addition, currency fluctuations or a weakening U.S. Dollar can increase the costs of our international expansion. To date, we have not entered into any foreign currency hedging contracts, since exchange rate fluctuations have not had a material impact on our operating results and cash flows. Based on our current international structure, we do not plan on engaging in hedging activities in the near future.

Inflation Risk

We do not believe that inflation has had a material effect on our business, financial condition or results of operations. Nonetheless, if our costs were to become subject to significant inflationary pressures, we may not be able to fully offset such higher costs through price increases. Our inability or failure to do so could harm our business, financial condition and results of operations.

 

29


Table of Contents

Item 4. Controls and Procedures.

Evaluation of Disclosure Controls and Procedures

Regulations under the Exchange Act require public companies, including us, to maintain “disclosure controls and procedures,” which are defined in Rule 13a-15(e) and Rule 15d-15(e) to mean a company’s controls and other procedures that are designed to ensure that information required to be disclosed in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in our reports filed under the Exchange Act is accumulated and communicated to management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required or necessary disclosures. In designing and evaluating our disclosure controls and procedures, management recognizes that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure controls and procedures are met. Additionally, in designing disclosure controls and procedures, our management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures. Our Chief Executive Officer and Chief Financial Officer have concluded, based on the evaluation of the effectiveness of the disclosure controls and procedures by our management as of the end of the quarter covered by this Quarterly Report, that our disclosure controls and procedures were effective at the reasonable assurance level.

Changes in Internal Control over Financial Reporting

Regulations under the Exchange Act require public companies, including our Company, to evaluate any change in our “internal control over financial reporting” as such term is defined in Rule 13a-15(f) and Rule 15d-15(f) of the Exchange Act. In connection with their evaluation of our disclosure controls and procedures as of the end of the period covered by this Quarterly Report, our Chief Executive Officer and Chief Financial Officer did not identify any change in our internal control over financial reporting during the fiscal quarter covered by this Quarterly Report that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

PART II

OTHER INFORMATION

ITEM 1. LEGAL PROCEEDINGS

From time to time, we may become involved in legal proceedings arising in the ordinary course of our business. We are not presently a party to any legal proceedings that, if determined adversely to us, would individually or taken together have a material adverse effect on our business, operating results, financial condition or cash flows.

 

ITEM 1A. RISK FACTORS

Our operations and financial results are subject to various risks and uncertainties, including those described below, which could adversely affect our business, results of operations, cash flows, financial conditions, and the trading price of our common stock.

Risks Related to Our Business

We have a history of losses and we may not achieve or sustain profitability in the future.

We have incurred significant losses in each fiscal year since our incorporation in 2006. We experienced net losses of $35.9 million during 2013 and net losses of $15.1 million for the six months ending June 30, 2014. As of June 30, 2014, we had an accumulated deficit of $128.3 million. The losses and accumulated deficit were due to the substantial investments we made to grow our business and acquire customers. We anticipate that our cost of revenues and operating expenses will increase in the foreseeable future as we continue to invest to grow our business and acquire customers and develop our platform and new functionality. These efforts may prove more expensive than we currently anticipate, and we may not succeed in increasing our revenues sufficiently to offset these higher expenses. Many of our efforts to generate revenues from our business are new and unproven, and any failure to increase our revenues or generate revenues from new solutions could prevent us from attaining or increasing profitability. Furthermore, to the extent we are successful in increasing our customer base, we could also incur increased losses because costs associated with entering into customer contracts are generally incurred up front, while customers are billed over the term of the contract generally through our usage-based pricing model. We do not expect to be profitable in 2014 and we cannot be certain that we will be able to attain profitability on a quarterly or annual basis, or if we do, that we will sustain profitability.

 

30


Table of Contents

Our limited operating history makes it difficult to evaluate our current business and future prospects.

Although we began our operations in March 2006, we did not begin generating substantial revenues until 2009. Our limited operating history may make it difficult to evaluate our current business and our future prospects. We have encountered and will continue to encounter risks and difficulties frequently experienced by growing companies in rapidly developing and changing industries, including challenges in forecasting accuracy, determining appropriate investments of our limited resources, market acceptance of our existing and future solutions, competition from established companies with greater financial and technical resources, acquiring and retaining customers, managing customer deployments and developing new solutions. Our current operations infrastructure may require changes in order for us to achieve profitability and scale our operations efficiently. For example, we may need to automate portions of our solution to decrease our costs, ensure our marketing infrastructure is designed to drive highly qualified leads cost effectively and implement changes in our sales model to improve the predictability of our sales and reduce our sales cycle. If we fail to implement these changes on a timely basis or are unable to implement them due to factors beyond our control, our business may suffer. We cannot assure you that we will be successful in addressing these and other challenges we may face in the future.

Our usage-based pricing model makes it difficult to evaluate our current business and future prospects.

We have a usage-based pricing model where most of our fees are calculated as a percentage of customers’ advertising spend managed on our platform. This pricing model makes it difficult to accurately forecast revenues because our customers’ advertising spend managed by our platform may vary from month to month based on the variety of industries in which our advertisers operate, the seasonality of those industries and fluctuations in our customers’ advertising budgets or other factors. Our contracts with our direct advertiser customers generally contain a minimum monthly fee, which is generally greater than one-half of our estimated monthly revenues from the customer at the time the contract is signed, and, as a result, the monthly minimum may not be a good indicator of our revenues from that customer. In addition, advertisers that use our platform through our agency customers typically do not have a minimum monthly spend amount or a minimum term during which they must use our platform and, as a result, the ability to forecast revenues from these advertisers is difficult. Additionally, if we overestimate usage, we may incur additional expenses in adding infrastructure, without a commensurate increase in revenues, which would harm our gross margins and other operating results.

The market for digital advertising management solutions is relatively new and dependent on growth in various digital advertising channels. If this market develops more slowly or differently than we expect, our business, growth prospects and financial condition would be adversely affected.

The market for digital advertising management solutions such as ours is relatively new and these solutions may not achieve or sustain high levels of demand and market acceptance. While search and display advertising has been used successfully for several years, marketing via new digital advertising channels such as mobile and social media is not as well established. The future growth of our business could be constrained by both the level of acceptance and expansion of emerging digital advertising channels, as well as the continued use and growth of existing channels, such as search and display advertising. Even if these channels become widely adopted, advertisers and agencies may not make significant investments in solutions such as ours that help them manage their digital advertising spend across publisher platforms and advertising channels. It is difficult to predict customer adoption rates, customer demand for our platform, the future growth rate and size of the digital advertising management solutions market or the entry of competitive solutions. Any expansion of the market for digital advertising management solutions depends on a number of factors, including the growth of the digital advertising market, the growth of social and mobile as advertising channels and the cost, performance and perceived value associated with digital advertising management solutions. If digital advertising management solutions do not achieve widespread adoption, or there is a reduction in demand for digital advertising caused by weakening economic conditions, decreases in corporate spending or otherwise, it could result in reduced usage, which could decrease revenues or otherwise adversely affect our business.

If we are unable to maintain our relationships with, and access to, publishers, our business will suffer.

We currently depend on relationships with various publishers, including Baidu, Bing, Criteo, Facebook, Google, Yandex, Yahoo! and Yahoo! Japan. Our subscription services interface with these publishers’ platforms through application programming interfaces (API), such as the Google AdWords API or Facebook API. We are subject to the publishers’ standard API terms and conditions, which govern the use and distribution of data from these publishers’ platforms. Our business significantly depends on having access to these APIs, particularly the Google AdWords API, which the substantial majority of our customers use, on commercially reasonable terms and our business would be harmed if any of these publishers discontinue or limit access to their platforms, modify their terms of use or other policies or place additional restrictions on us as API users, or charge API license fees for API access. Moreover, some of these publishers, such as Google, market competitive solutions for their platforms. Because the publishers control their APIs, they may develop competitive offerings that are not subject to the limits imposed on us through the API terms and conditions. Currently, restrictions in these API agreements limit our ability to implement certain functionality, require us to implement functionality in a particular manner or require us to implement certain required minimum functionality, causing us to devote development resources to implement certain functionality that we would not otherwise include in our subscription services and

 

31


Table of Contents

to incur costs for personnel to provide services to implement functionality that we are prohibited from automating. Publishers update their API terms of use from time to time and new versions of these terms could impose additional restrictions on us. In addition, publishers continually update their APIs and may update or modify functionality, which requires us to modify our software to accommodate these changes and to devote technical resources and personnel to these efforts which could otherwise be used to focus on other priorities. Any of these outcomes could cause demand for our products to decrease, our research and development costs to increase, and our results of operations and financial condition to be harmed.

Our growth depends in part on the success of our relationships with advertising agencies.

Our future growth will depend, in part, on our ability to enter into successful relationships with advertising agencies. Identifying agencies and negotiating and documenting relationships with them requires significant time and resources. These relationships may not result in additional customers or enable us to generate significant revenues. Our contracts for these relationships are typically non-exclusive and do not prohibit the agency from working with our competitors or from offering competing services. We generally bill agencies for their customers’ use of our platform, but the agency’s customer has no direct contractual commitment to make payment to us. Furthermore, some of these agency contracts include provisions whereby the agency is not liable for making payment to us for our subscription services if the agency does not receive a corresponding payment from its client on whose behalf the subscription services were rendered. These provisions may result in longer collections periods or our inability to collect payment for some of our subscription services. If we are unsuccessful in establishing or maintaining our relationships with these agencies on commercially reasonable terms, or if these relationships are not profitable for us, our ability to compete in the marketplace or to grow our revenues could be impaired and our operating results would suffer.

We may not be able to compete successfully against current and future competitors.

The overall market for digital advertising management solutions is rapidly evolving, highly competitive, complex, fragmented, and subject to changing technology and shifting customer needs. We face significant competition in this market and we expect competition to intensify in the future. We currently compete with large, well-established companies, such as Adobe Systems Incorporated and Google Inc. (through its wholly-owned subsidiary DoubleClick), and privately-held companies, such as Acquisio Inc., which focuses solely on agencies, and Kenshoo Ltd. We also compete with in-house proprietary tools and custom solutions, including spreadsheets. Increased competition may result in reduced pricing for our solutions, longer sales cycles or a decrease of our market share, any of which could negatively affect our revenues and future operating results and our ability to grow our business.

A number of competitive factors could cause us to lose potential sales or to sell our solutions at lower prices or at reduced margins, including, among others:

 

    potential customers may choose to develop or continue to use internal solutions rather than paying for our solutions or may choose to use a competitor’s solution that has different or additional technical capabilities;

 

    companies may enter our market by expanding their platforms or acquiring a competitor;

 

    some of our competitors, such as Adobe and Google, have greater financial, marketing and technical resources than we do, allowing them to leverage a larger installed customer base, adopt more aggressive pricing policies, and devote greater resources to the development, promotion and sale of their products and services than we can; and

 

    companies marketing search, social, display, mobile or web analytics services could bundle digital advertising management solutions or offer such products at a lower price as part of a larger product sale.

We cannot assure you that we will be able to compete successfully against current and future competitors. If we cannot compete successfully, our business, results of operations and financial condition could be negatively impacted.

Our business depends on our customers’ continued willingness to manage advertising spend on our platform.

In order for us to improve our operating results, it is important that our customers continue to manage their advertising spend on our platform, increase their usage and also purchase additional solutions from us. In the case of our direct advertiser customers, we offer our solutions primarily through subscription contracts and generally bill customers over the related subscription period, which is generally one year or longer. During the term of their contracts, our direct advertiser customers generally have no obligation to maintain or increase their advertising spend on our platform beyond a specified minimum monthly fee, which is typically set at the time the contract is signed and is generally greater than half of the monthly amount we anticipate the customer will spend. Our direct advertiser customers have no renewal obligation after the initial or then-current renewal subscription period expires, and even if customers renew contracts, they may decrease the level of their digital advertising spend managed through our platform, resulting in lower revenues from that customer. Advertisers that we serve through our arrangements with our advertising agencies generally do not have any contractual commitment to use our platform. Our customers’ usage may decline or fluctuate as a result of a number of factors, including, but not limited to, their satisfaction with our platform and our customer support, the frequency and severity of outages, the pricing of our, or competing, solutions, the effects of global economic conditions and reductions in spending levels or

 

32


Table of Contents

changes in our customers’ strategies regarding digital advertising. Due to our limited historical experience, we may not be able to accurately predict future usage trends. If our customers renew on less favorable terms or reduce their advertising spend on our platform, our revenues may grow more slowly than expected or decline.

We incur upfront costs associated with onboarding advertisers to our platform and may not recoup our investment if we do not maintain the advertiser relationship over time.

Our operating results may be negatively affected if we are unable to recoup our upfront costs for onboarding new advertisers to our platform. Upfront costs when adding new advertisers generally include sales commissions for our sales force, expenses associated with entering customer data into our platform and other implementation-related costs. Because our customers, including direct advertisers and agencies, are billed over the term of the contract, if new customers sign contracts with short initial subscription periods and do not renew their subscriptions, or otherwise do not continue to use our platform to a level that generates revenues in excess of our upfront expenses, our operating results could be negatively impacted. In cases in which the implementation process is particularly complex, the revenues resulting from the customer under our contract may not cover the upfront investment, so if a significant number of these customers do not renew their contracts, it could negatively affect our operating results.

Because we generally bill our customers over the term of the contract, near term decline in new or renewed subscriptions may not be reflected immediately in our operating results.

Most of our revenues in each quarter are derived from contracts entered into with our customers during previous quarters. Consequently, a decline in new or renewed subscriptions in any one quarter may not be fully reflected in our revenues for that quarter. Such declines, however, would negatively affect our revenues in future periods and the effect of significant downturns in sales and market acceptance of our solutions, and potential changes in our rate of renewals or renewal terms, may not be fully reflected in our results of operations until future periods. In addition, we may be unable to adjust our cost structure rapidly, or at all, to take account of reduced revenues. Our subscription model also makes it difficult for us to rapidly increase our total revenues through additional sales in any period, as revenues from new customers must be earned over the applicable subscription term based on the value of their monthly advertising spend.

We have been dependent on our customers’ use of search advertising. Any decrease in the use of search advertising or our inability to further penetrate mobile, social and display advertising channels would harm our business, growth prospects, operating results and financial condition.

Historically, our customers have primarily used our solutions for managing their search advertising, including mobile search advertising, and the substantial majority of our revenues are derived from advertisers that use our platform to manage their search advertising. We expect that search advertising will continue to be the primary channel used by our customers for the foreseeable future. Should our customers lose confidence in the value or effectiveness of search advertising, the demand for our solutions may decline. In addition, our failure to achieve market acceptance of our solution for the management of mobile, social and display advertising spend would harm our growth prospects, operating results and financial condition.

Our sales cycle can be long and unpredictable and require considerable time and expense, which may cause our operating results to fluctuate.

The sales cycle for our solutions, from initial contact with a potential lead to contract execution and implementation, varies widely by customer, but is typically one to nine months. Some of our customers undertake a significant evaluation process that frequently involves not only our solutions but also those of our competitors, which has in the past resulted in extended sales cycles. Our sales efforts involve educating our customers about the use, technical capabilities and benefits of our platform. In addition, under certain circumstances, we sometimes offer an initial term, typically of a few months in duration, to new customers who may terminate their subscription at any time during this initial period before the fixed term contract commences. We have no assurance that the substantial time and money spent on our sales efforts will produce any sales. If our sales efforts result in a new customer subscription, the customer may terminate its subscription during the initial period, after we have incurred the expenses associated with entering the customer’s data in our platform and related training and support. If sales expected from a customer are not realized in the time period expected or not realized at all, or if a customer terminates during the initial period, our business, operating results and financial condition could be adversely affected.

Material defects or errors in our software platform could harm our reputation, result in significant costs to us and impair our ability to sell our subscription services.

The software applications underlying our subscription services are inherently complex and may contain material defects or errors, which may cause disruptions in availability, misallocation of advertising spend or other performance problems. Any such errors, defects, disruptions in service or other performance problems with our software platform could negatively impact our customers’ businesses or the success of their advertising campaigns and cause harm to our reputation. If we have any errors, defects, disruptions in service or other performance problems with our software platform, customers could elect not to renew or reduce their

 

33


Table of Contents

usage or delay or withhold payment to us, which could result in an increase in our provision for doubtful accounts or an increase in the length of collection cycles for accounts receivable. Errors, defects, disruptions in service or other performance problems could also result in customers making warranty or other claims against us, our giving credits to our customers toward future advertising spend or costly litigation. As a result, material defects or errors in our platform could have a material adverse impact on our business and financial performance.

The costs incurred in correcting any material defects or errors in our software platform may be substantial and could adversely affect our operating results. After the release of new versions of our software, defects or errors may be identified from time to time by our internal team and by our customers. We implement bug fixes and upgrades as part of our regularly scheduled system maintenance. If we do not complete this maintenance according to schedule or if customers are otherwise dissatisfied with the frequency and/or duration of our maintenance services, customers could elect not to renew, or delay or withhold payment to us, or cause us to issue credits, make refunds or pay penalties.

We primarily derive our revenues from a single software platform and any factor adversely affecting subscriptions to our platform could harm our business and operating results.

We primarily derive our revenues from sales of a single software platform. As such, any factor adversely affecting subscriptions to our platform, including product release cycles, market acceptance, product competition, performance and reliability, reputation, price competition, and economic and market conditions, could harm our business and operating results.

Our business depends on retaining and attracting qualified management and technical personnel; recently, we have experienced management turnover, which may result in operational inefficiencies that could negatively affect our business.

Our success depends upon the continued service of our founders and senior management team and key technical employees, as well as our ability to continue to attract and retain additional highly qualified management and operating personnel. Recently, we have experienced turnover in our senior management, including the hiring of our new Chief Executive Officer in May 2014, who is only the second chief executive officer in our history, and resignations of our Chief Revenue Officer in July 2014 and our General Counsel in June 2014. This lack of management continuity, and the resulting lack of long-term experience in their new roles within our Company, could result in operational and administrative inefficiencies and added costs, which could adversely impact our results of operations, stock price and customer relationships, and may make recruiting for future management positions more difficult. In addition, we must successfully integrate any new management personnel that we hire within our organization in order to achieve our operating objectives, and changes in other key management positions may temporarily affect our financial performance and results of operations as new management becomes familiar with our business.

We do not maintain key person life insurance policies on any of our employees. Each of our founders, executive officers, key technical personnel and other employees could terminate his or her relationship with us at any time. Our business also requires skilled technical and sales personnel, who are in high demand and are often subject to competing offers. As we expand into additional geographic markets, we will require personnel with expertise in these new areas. Competition for qualified employees is intense in our industry and particularly in San Francisco, California, where most of our technical employees are based. The loss of our founders or any other member of our senior management team or, even a few qualified employees, or an inability to retain, attract, relocate and motivate additional highly skilled employees required for the planned expansion of our business, could delay or prevent the achievement of our business objectives and could materially harm our business and our customer relationships.

We primarily use a single third-party data center to deliver our services. Any disruption of service at this facility could harm our business.

We manage a significant portion of our services and serve substantially all of our customers from a single third-party data center facility. While we control the actual computer, network and storage systems upon which our platform runs, and deploy them to the data center facility, we do not control the operation of the facility. The owner of the facility has no obligation to renew the agreement with us on commercially reasonable terms, or at all. If we are unable to renew the agreement on commercially reasonable terms, we may be required to transfer to a new facility or facilities, and we may incur significant costs and possible service interruption in connection with doing so.

The facility is vulnerable to damage or service interruption resulting from human error, intentional bad acts, earthquakes, hurricanes, floods, fires, war, terrorist attacks, power losses, hardware failures, systems failures, telecommunications failures and similar events. Moreover, while we have a disaster recovery plan in place, we do not maintain a “hot failover” instance of our software platform permitting us to immediately switch over in the event of damage or service interruption at our data center. The occurrence of a natural disaster or an act of terrorism, any outages or vandalism or other misconduct, or a decision to close the facility without adequate notice or other unanticipated problems could result in lengthy interruptions in our services.

Any changes in service levels at the facility or any errors, defects, disruptions or other performance problems at or related to the facility that affect our services could harm our reputation and may damage our customers’ businesses. Interruptions in our services might reduce our revenues, subject us to potential liability, or result in reduced usage of our platform. In addition, some of our customer contracts require us to issue credits for downtime in excess of certain levels and in some instances give our customers the ability to terminate their subscriptions.

 

34


Table of Contents

We also depend on third-party Internet-hosting providers and continuous and uninterrupted access to the Internet through third-party bandwidth providers to operate our business. If we lose the services of one or more of our Internet-hosting or bandwidth providers for any reason or if their services are disrupted, for example due to viruses or “denial-of-service” or other attacks on their systems, or due to human error, intentional bad acts, power loss, hardware failures, telecommunications failures, fires, wars, terrorist attacks, floods, earthquakes, hurricanes, tornadoes or similar events, we could experience disruption in our ability to offer our solutions or we could be required to retain the services of replacement providers, which could increase our operating costs and harm our business and reputation.

If we cannot efficiently implement our solutions for customers, we may lose customers.

Our customers have a variety of different data formats, enterprise applications and infrastructure and our platform must support our customers’ data formats and integrate with complex enterprise applications and infrastructures. If our platform does not currently support a customer’s required data format or appropriately integrate with a customer’s applications and infrastructure, then we may choose to configure our platform to do so, which would increase our expenses. Additionally, we do not control our customers’ implementation schedules. As a result, as we have experienced in the past, if our customers do not allocate internal resources necessary to meet their implementation responsibilities or if we face unanticipated implementation difficulties, the implementation may be delayed. Further, in the past, our implementation capacity has at times constrained our ability to successfully implement our solutions for our customers in a timely manner, particularly during periods of high demand. If the customer implementation process is not executed successfully or if execution is delayed, we could incur significant costs, customers could become dissatisfied and decide not to increase usage of our platform, not to use our platform beyond an initial period prior to their term commitment and revenue recognition could be delayed. In addition, competitors with more efficient operating models with lower implementation costs could penetrate our customer relationships.

Additionally, large customers may request or require specific features or functions unique to their particular business processes, which increase our upfront investment in sales and deployment efforts and the revenues resulting from the customers under our typical contract length may not cover the upfront investments. If prospective large customers require specific features or functions that we do not offer, then the market for our solution will be more limited and our business could suffer. In addition, supporting large customers could require us to devote significant development services and support personnel and strain our personnel resources and infrastructure. If we are unable to address the needs of these customers in a timely fashion or further develop and enhance our solution, these customers may not renew their subscriptions, seek to terminate their relationship with us, renew on less favorable terms, or reduce their advertising spend on our platform. If any of these were to occur, our revenues may decline and our operating results could be adversely affected.

If we are unable to maintain or expand our sales and marketing capabilities, we may not be able to generate anticipated revenues.

Increasing our customer base and achieving broader market acceptance of our software platform will depend to a significant extent on our ability to expand our sales and marketing operations and activities. We expect to be substantially dependent on our sales force to obtain new customers. We currently plan to expand our sales team in order to increase revenues from new and existing customers and to further penetrate our existing markets and expand into new markets. Our solutions require a sophisticated sales force with specific sales skills and technical knowledge. Competition for qualified sales personnel is intense, and we may not be able to retain our existing sales personnel or attract, integrate or retain sufficient highly qualified sales personnel.

Our ability to achieve revenue growth in the future will depend, in large part, on our success in recruiting, training and retaining sufficient numbers of sales personnel. These new employees require significant training and experience before they achieve full productivity. For internal planning purposes, we assume that it will take approximately three months before a newly hired sales representative is fully trained and productive in selling our solutions. This amount of time may be longer for sales personnel focused on new geographies or specific market segments. As a result, the cost of hiring and carrying new representatives cannot be offset by the revenues they produce for a significant period of time. Our recent hires and planned hires may not become productive as quickly as we would like, and we may not be able to hire or retain sufficient numbers of qualified individuals in the markets where we do business. Our business will be seriously harmed if these expansion efforts do not work as planned or generate a corresponding significant increase in revenues.

Any failure to offer high-quality technical support services may adversely affect our relationships with our customers and harm our financial results.

Our customers depend on our support organization to resolve any technical issues relating to our solutions. In addition, our sales process is highly dependent on the quality of our solutions, our business reputation and on strong recommendations from our existing customers. Any failure to maintain high-quality technical support, or a market perception that we do not maintain high-quality support, could harm our reputation, adversely affect our ability to sell our solutions to existing and prospective customers, and harm our business, operating results and financial condition.

 

35


Table of Contents

We offer technical support services with our solutions and may be unable to respond quickly enough to accommodate short-term increases in customer demand for support services. We also may be unable to modify the format of our support services to compete with changes in support services provided by competitors. It is difficult to predict customer demand for technical support services and if customer demand increases significantly, we may be unable to provide satisfactory support services to our customers. Additionally, increased customer demand for these services, without corresponding revenues, could increase costs and adversely affect our operating results.

If our security measures are breached or unauthorized access to customer data or our data is otherwise obtained, our solutions may be perceived as not being secure, customers may reduce the use of or stop using our solutions or we may incur significant liabilities.

Security breaches could result in the loss of information, litigation, indemnity obligations and other liability. While we have security measures in place, our systems and networks are subject to ongoing threats and therefore these security measures may be breached as a result of third-party action, including cyber-attacks or other intentional misconduct by computer hackers, employee error, malfeasance or otherwise. This could result in one or more third parties obtaining unauthorized access to our customers’ data or our data, including intellectual property and other confidential business information. Because techniques used to obtain unauthorized access or to sabotage systems change frequently and generally are not recognized until launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures. Third parties may also attempt to fraudulently induce employees or customers into disclosing sensitive information such as user names, passwords or other information in order to gain access to our customers’ data or our data, including intellectual property and other confidential business information. If an actual or perceived breach of our security occurs, the market perception of the effectiveness of our security measures could be harmed, we could lose potential sales and existing customers or we could incur other liabilities, which could adversely affect our business.

We must develop and introduce enhancements and new features that achieve market acceptance or that keep pace with technological developments to remain competitive in our evolving industry.

We operate in a dynamic market characterized by rapidly changing technologies and industry and legal standards. The introduction of new Revenue Acquisition Management solutions by our competitors, the market acceptance of solutions based on new or alternative technologies, or the emergence of new industry standards could render our platform obsolete. Our ability to compete successfully, attract new customers and increase revenues from existing customers depends in large part on our ability to enhance and improve our existing Revenue Acquisition Management platform and to continually introduce or acquire new features that are in demand by the market we serve. We also must update our software to reflect changes in publishers’ APIs and terms of use. The success of any enhancement or new solution depends on several factors, including timely completion, adequate quality testing, appropriate introduction and market acceptance. Any new platform or feature that we develop or acquire may not be introduced in a timely or cost-effective manner, may contain defects or may not achieve the broad market acceptance necessary to generate significant revenues. If we are unable to anticipate or timely and successfully develop or acquire new offerings or features or enhance our existing platform to meet customer requirements, our business and operating results will be adversely affected.

Our growth depends in part on the success of our strategic relationships with third parties.

Our future growth will depend on our ability to enter into successful strategic relationships with third parties. For example, we are seeking to establish relationships with third parties to develop integrations with complementary technology and content. These relationships may not result in additional customers or enable us to generate significant revenues. Identifying partners and negotiating and documenting relationships with them require significant time and resources. Our contracts for these relationships are typically non-exclusive and do not prohibit the other party from working with our competitors or from offering competing services. If we are unsuccessful in establishing or maintaining our relationships with these third parties, our ability to compete in the marketplace or to grow our revenues could be impaired and our operating results would suffer.

As a result of our customers’ increased usage of our software platform, we will need to continually improve our hosting infrastructure to avoid service interruptions or slower system performance.

We have experienced continued growth in the number of advertisers, transactions and data that our hosting infrastructure supports. We seek to maintain sufficient excess capacity in our infrastructure to meet the needs of all of our customers. We also seek to maintain excess capacity to facilitate the rapid provision of new customer deployments and the expansion of existing customer deployments. For example, if we secure a large customer or a group of customers that require significant amounts of bandwidth or storage, we may need to increase bandwidth, storage, power or other elements of our application architecture and our infrastructure, and our existing systems may not be able to scale in a manner satisfactory to our existing or prospective customers.

 

36


Table of Contents

The amount of infrastructure needed to support our customers is based on our estimates of anticipated usage. If we were to experience unforeseen increases in usage, we could be required to increase our infrastructure investments resulting in increased costs or reduced gross margins, and if we do not accurately predict our infrastructure capacity requirements, our customers could experience service outages that may subject us to financial penalties and liabilities and result in customer losses. If our hosting infrastructure capacity fails to keep pace with increased sales, customers may experience service interruptions or slower system performance as we seek to obtain additional capacity, which could harm our reputation and adversely affect our revenue growth. As use of our software platform grows and as customers use it for more complicated tasks, we will need to devote additional resources to improving our application architecture and our infrastructure in order to maintain the performance of our software platform. We may need to incur additional costs to upgrade or expand our computer systems and architecture in order to accommodate increased demand if our systems cannot handle current or higher volumes of usage. In addition, increasing our systems and infrastructure in advance of new customers would cause us to have increased cost of revenues, which can adversely affect our gross margins until we increase revenues that are spread over the increased costs.

Any failure to protect our intellectual property rights could impair our ability to protect our proprietary technology and our brand.

Our success and ability to compete depend in part upon our intellectual property. We primarily rely on a combination of copyright, trade secret and trademark laws, as well as confidentiality procedures and contractual restrictions with our employees, customers, partners and others to establish and protect our intellectual property rights. However, the steps we take to protect our intellectual property rights may be inadequate or we may be unable to secure intellectual property protection for all of our solutions. In particular, we have two issued U.S. patents.

If we are unable to protect our intellectual property, our competitors could use our intellectual property to market products and services similar to ours and our ability to compete effectively would be impaired. Moreover, others may independently develop technologies that are competitive to ours or infringe our intellectual property. The enforcement of our intellectual property rights depends on our legal actions against these infringers being successful, but we cannot be sure these actions will be successful, even when our rights have been infringed. In addition, defending our intellectual property rights might entail significant expense and diversion of management resources. Any of our intellectual property rights may be challenged by others or invalidated through administrative processes or litigation. Any patents issued in the future may not provide us with competitive advantages or may be successfully challenged by third parties.

Furthermore, legal standards relating to the validity, enforceability and scope of protection of intellectual property rights are uncertain. Effective protection of our intellectual property may not be available to us in every country in which our solutions are available. The laws of some foreign countries may not be as protective of intellectual property rights as those in the United States, and mechanisms for enforcement of intellectual property rights may be inadequate. Accordingly, despite our efforts, we may be unable to prevent third parties from infringing upon or misappropriating our intellectual property.

We might be required to spend significant resources to monitor and protect our intellectual property rights, and our efforts to enforce our intellectual property rights may be met with defenses, counterclaims and countersuits attacking the validity and enforceability of our intellectual property rights. Litigation to protect and enforce our intellectual property rights could be costly, time-consuming and distracting to management, whether or not it is resolved in our favor, and could ultimately result in the impairment or loss of portions of our intellectual property.

We could incur substantial costs as a result of any claim of infringement of another party’s intellectual property rights.

In recent years, there has been significant litigation in the United States involving patents and other intellectual property rights. Companies in the Internet and technology industries are increasingly bringing and becoming subject to suits alleging infringement of proprietary rights, particularly patent rights, and our competitors may hold patents or have pending patent applications, which could be related to our business. These risks have been amplified by the increase in third parties, which we refer to as non-practicing entities, whose sole primary business is to assert such claims. We have received in the past, and expect to receive in the future, notices that claim we or our customers using our solutions have misappropriated or misused other parties’ intellectual property rights. If we are sued by a third party that claims that our technology infringes its rights, the litigation could be expensive and could divert our management resources. We do not currently have an extensive patent portfolio of our own, which may limit the defenses available to us in any such litigation.

In addition, in most instances, we have agreed to indemnify our customers against certain claims that our subscription services infringe the intellectual property rights of third parties. Our business could be adversely affected by any significant disputes between us and our customers as to the applicability or scope of our indemnification obligations to them. The results of any intellectual property litigation to which we might become a party, or for which we are required to provide indemnification, may require us to do one or more of the following:

 

    cease offering or using technologies that incorporate the challenged intellectual property;

 

37


Table of Contents
    make substantial payments for legal fees, settlement payments or other costs or damages;

 

    obtain a license, which may not be available on reasonable terms, to sell or use the relevant technology; or

 

    redesign technology to avoid infringement.

If we are required to make substantial payments or undertake any of the other actions noted above as a result of any intellectual property infringement claims against us or any obligation to indemnify our customers for such claims, such payments or costs could have a material adverse effect upon our business and financial results.

Our use of open source technology could impose limitations on our ability to commercialize our software platform.

We use open source software in our platform. Some open source software licenses require users who distribute open source software as part of their software to publicly disclose all or part of the source code to such software and/or make available any derivative works of the open source code on unfavorable terms or at no cost. The terms of various open source licenses have not been interpreted by the U.S. courts, and there is a risk that such licenses could be construed in a manner that imposes unanticipated conditions or restrictions on our ability to market our software platform. While we monitor our use of open source software and try to ensure that none is used in a manner that would require us to disclose our source code or that would otherwise breach the terms of an open source agreement, such use could inadvertently occur and we may be required to release our proprietary source code, pay damages for breach of contract, re-engineer our applications, discontinue sales in the event re-engineering cannot be accomplished on a timely basis or take other remedial action that may divert resources away from our development efforts, any of which could cause us to breach customer contracts, harm our reputation, result in customer losses or claims, increase our costs or otherwise adversely affect our business and operating results.

If the market for cloud-based software develops more slowly than we expect or declines, our business could be harmed.

The cloud computing market is not as mature as the market for on-premise software, and it is uncertain whether cloud computing will achieve and sustain high levels of customer demand and market acceptance. If other cloud computing providers experience security incidents, loss of customer data, disruptions in delivery or other problems, the market for cloud computing as a whole, including our solution, may be negatively affected. If cloud computing does not achieve widespread adoption, or there is a reduction in demand for cloud computing caused by a lack of customer acceptance, technological challenges, weakening economic conditions, security or privacy concerns, competing technologies and products, decreases in corporate spending or otherwise, it could result in decreased revenues or increased expenses from development of alternative on-premise solutions and our business could be adversely affected.

Because our long-term success depends, in part, on our ability to expand our sales to customers outside the United States, our business will be susceptible to risks associated with international operations.

We currently maintain offices and/or have sales personnel in Australia, Canada, China, England, France, Germany, Ireland, Japan and Singapore, as well as the United States. As we continue to expand our customer base outside the United States, our business will be increasingly susceptible to risks associated with international operations. However, we have a limited operating history outside the United States, and our ability to manage our business and conduct our operations internationally requires considerable management attention and resources and is subject to particular challenges of supporting a rapidly growing business in an environment of diverse cultures, languages, customs, tax laws, legal systems, alternate dispute systems and regulatory systems. The risks and challenges associated with international expansion include:

 

    the need to support and integrate with local publishers and partners;

 

    continued localization of our platform, including translation into foreign languages and associated expenses;

 

    competition with companies that have greater experience in the local markets than we do or who have pre-existing relationships with potential customers in those markets;

 

    compliance with multiple, potentially conflicting and changing governmental laws and regulations, including employment, tax, privacy and data protection laws and regulations;

 

    compliance with anti-bribery laws, including compliance with the Foreign Corrupt Practices Act;

 

    difficulties in invoicing and collecting in foreign currencies and associated foreign currency exposure;

 

    difficulties in staffing and managing foreign operations and the increased travel, infrastructure and legal compliance costs associated with international operations;

 

    different or lesser protection of our intellectual property rights;

 

38


Table of Contents
    difficulties in enforcing contracts and collecting accounts receivable, longer payment cycles and other collection difficulties;

 

    restrictions on repatriation of earnings; and

 

    regional economic and political conditions.

We have limited experience marketing, selling and supporting our subscription services internationally, which increases the risk that any potential future expansion efforts that we may undertake will not be successful.

Fluctuations in the exchange rate of foreign currencies could result in currency transactions losses.

We currently have foreign sales denominated in Australian Dollars, British Pound Sterling, Canadian Dollars, Chinese Yuan, Euros, Japanese Yen and Singapore Dollars. In addition, we incur a portion of our operating expenses in the currencies of the countries where we have offices. We face exposure to adverse movements in currency exchange rates, which may cause our revenues and operating results to differ materially from expectations. A decline in the U.S. dollar relative to foreign currencies would increase our non-U.S. revenues when translated into U.S. dollars. Conversely, if the U.S. dollar strengthens relative to foreign currencies, our non-U.S. revenues would be adversely affected. Our operating results could be negatively impacted depending on the amount of expense denominated in foreign currencies. As exchange rates vary, revenues, cost of revenues, operating expenses and other operating results, when translated, may differ materially from expectations. In addition, our revenues and operating results are subject to fluctuation if our mix of U.S. and foreign currency denominated transactions or expenses changes in the future because we do not currently hedge our foreign currency exposure. Even if we were to implement hedging strategies to mitigate foreign currency risk, these strategies might not eliminate our exposure to foreign exchange rate fluctuations and would involve costs and risks of their own, such as ongoing management time and expertise, external costs to implement the strategies and potential accounting implications.

If we fail to develop widespread brand awareness cost-effectively, our business may suffer.

We believe that developing and maintaining widespread awareness of our brand in a cost-effective manner is critical to achieving widespread acceptance of our solution and attracting new customers. We expect sales and marketing expenses to increase as a result of our marketing and brand promotion activities. We may not generate customer awareness or increase revenues enough to offset the increased expenses we incur in building our brand. If we fail to successfully promote and maintain our brand, or incur substantial marketing and sales expenses, which are not offset by increased revenues, we may fail to attract or retain customers necessary to realize a sufficient return on our brand-building efforts, or to achieve the widespread brand awareness that is essential for broad customer adoption of our solution.

Unfavorable conditions in the market for digital advertising or the global economy or reductions in digital advertising spend could limit our ability to grow our business and negatively affect our operating results.

Revenue growth and potential profitability of our business depends on digital advertising spend by advertisers in the markets we serve. Our operating results may vary based on changes in the market for digital advertising or the global economy. To the extent that weak economic conditions cause our customers and potential customers to freeze or reduce their advertising budgets, particularly digital advertising, demand for our solution may be negatively affected.

Historically, economic downturns have resulted in overall reductions in advertising spend. If economic conditions deteriorate, including as the result of concerns over future U.S. budgetary negotiations, our customers and potential customers may elect to decrease their advertising budgets or defer or reconsider software and service purchases, which would limit our ability to grow our business and negatively affect our operating results.

Our business and operations have experienced rapid growth in recent periods, which has placed, and may continue to place, significant demands on our management and infrastructure. If we fail to manage our growth effectively, we may be unable to execute our business plan, maintain high levels of service or address competitive challenges adequately.

We increased our number of full-time employees from 285 as of December 31, 2011 to 500 as of December 31, 2013. Our growth has placed, and may continue to place, a significant strain on our managerial, administrative, operational, financial and other resources. We intend to further expand our overall headcount and operations both domestically and internationally, with no assurance that our business or revenues will continue to grow. Creating a global organization and managing a geographically dispersed workforce will require substantial management effort, the allocation of valuable management resources and significant additional investment in our infrastructure. We will be required to continue to improve our operational, financial and management controls and our reporting procedures and we may not be able to do so effectively. Further, to accommodate our expected growth we must continually improve and maintain our technology, systems and network infrastructure. As such, we may be unable to manage our expenses effectively in the future, which may negatively impact our gross margins or operating expenses in any particular quarter. If we fail to manage our anticipated growth or change in a manner that does not preserve the key aspects of our corporate culture, the quality of our solutions may suffer, which could negatively affect our brand and reputation and harm our ability to retain and attract customers.

 

39


Table of Contents

Domestic and foreign government regulation and enforcement of data practices and data tracking technologies is expansive, not clearly defined and rapidly evolving. Such regulation could directly restrict portions of our business or indirectly affect our business by constraining our customers’ use of our platform or limiting the growth of our markets.

Federal, state, municipal and/or foreign governments and agencies have adopted and could in the future adopt, modify, apply or enforce laws, policies, and regulations covering user privacy, data security, technologies such as cookies that are used to collect, store and/or process data, the taxation of products and services, unfair and deceptive practices, and/or the collection, use, processing, transfer, storage and/or disclosure of data associated with a unique individual. The categories of data regulated under these laws vary widely and are often ill-defined and subject to new applications or interpretation by regulators. Our subscription services enable our customers to collect, manage and store data regarding the measurement and valuation of their digital advertising and marketing campaigns, which may include data that is directly or indirectly obtained or derived through the activities of online or mobile visitors. The uncertainty and inconsistency among these laws, coupled with a lack of guidance as to how these laws will be applied to current and emerging Internet and mobile analytics technologies, creates a risk that regulators, lawmakers or other third parties, such as potential plaintiffs, may assert claims, pursue investigations or audits, or engage in civil or criminal enforcement. These actions could limit the market for our subscription services or impose burdensome requirements on our services and/or customers’ use of our services, thereby rendering our business unprofitable.

Some features of our subscription services use cookies, which trigger the data protection requirements of certain foreign jurisdictions, such as the EU Cookie Directive. In addition, although our subscription services do not involve the collection or use of personally identifiable information from visitors, our services collect anonymous data about visitors’ interactions with our advertiser clients that may be subject to regulation under current or future laws or regulations. If our privacy or data security measures fail to comply with these current or future laws and regulations in any of the jurisdictions in which we collect information, we may be subject to litigation, regulatory investigations, civil or criminal enforcement, audits or other liabilities in such jurisdictions, or our advertisers may terminate their relationships with us.

This area of the law is currently under intense government scrutiny and many governments, including the U.S. government, are considering a variety of proposed regulations that would restrict or impact the conditions under which data obtained from or through the activities of visitors could be collected, processed or stored. In addition, regulators such as the Federal Trade Commission and the California Attorney General are continually proposing new regulations and interpreting and applying existing regulations in new ways. Changes to existing laws or new laws regulating the solicitation, collection or processing of personal and consumer information, truth-in-advertising and consumer protection could affect our customers’ utilization of digital advertising and marketing, potentially reducing demand for our subscription services, or impose restrictions that make it more difficult or expensive for us to provide our services.

If legislation dampens the growth in web and mobile usage or access to the Internet, our results of operations could be harmed.

Legislation enacted in the future could dampen the growth in web and mobile usage and decrease its acceptance as a medium of communications and commerce or result in increased adoption of new modes of communication and commerce that may not be serviced by our products. In addition, government agencies or private organizations may begin to impose taxes, fees or other charges for accessing the Internet, which could result in slower growth or a decrease in ecommerce, use of social media and/or use of mobile devices. Any of these outcomes could cause demand for our platform to decrease, our costs to increase, and our results of operations and financial condition to be harmed.

If our customers fail to abide by applicable privacy laws or to provide adequate notice and/or obtain consent from end users, we could be subject to litigation or enforcement action or reduced demand for our services. Industry self-regulatory standards may be implemented in the future that could affect demand for our platform and our ability to access data we use to provide our platform.

Our customers utilize our services to support and measure their direct interactions with visitors and we must rely on our customers to implement and administer any notice or choice mechanisms required under applicable laws. If customers fail to abide by these laws, it could result in litigation or regulatory or enforcement action against our customers or against us directly.

In addition, self-regulatory organizations (such as the Network Advertising Initiative) to which our customers may belong may impose opt-in or opt-out requirements on our customers, which may in the future require our customers to provide various mechanisms for users to opt-in or opt-out of the collection of any data, including anonymous data, with respect to such users’ web or mobile activities. The online and/or mobile industries may adopt technical or industry standards, or federal, state, local or foreign laws may be enacted that allow users to opt-in or opt-out of data that is necessary to our business. In particular, over the past three years, some government regulators and privacy advocates have suggested creating a “Do Not Track” standard that would allow users to express a preference, independent of cookie settings in their browser, not to have website browsing recorded. All the major internet

 

40


Table of Contents

browsers have implemented some version of a “Do Not Track” setting and the “Do-Not-Track Online Act of 2013” was introduced in the U.S. Senate in February 2013. Furthermore, publishers may implement alternative tracking technologies that make it more difficult to access the data necessary to our business or make it more difficult for us to compete with the publisher’s own advertising management solutions. If any of these events were to occur in the future, it could have a material effect on our ability to provide services and for our customers to collect the data that is necessary to use our services.

Our revenues may be adversely affected if we are required to charge sales taxes in additional jurisdictions or other taxes for our solutions.

We collect or have imposed upon us sales or other taxes related to the solutions we sell in certain states and other jurisdictions. Additional states, countries or other jurisdictions may seek to impose sales or other tax collection obligations on us in the future, or states or jurisdictions in which we already pay tax may increase the amount of taxes we are required to pay. A successful assertion by any state, country or other jurisdiction in which we do business that we should be collecting sales or other taxes on the sale of our products and services could, among other things, create significant administrative burdens for us, result in substantial tax liabilities for past sales, discourage clients from purchasing solutions from us or otherwise substantially harm our business and results of operations.

We may experience quarterly fluctuations in our operating results due to a number of factors which make our future results difficult to predict and could cause our operating results to fall below expectations or our guidance.

Our quarterly operating results may fluctuate due to a variety of factors, many of which are outside of our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful. You should not rely on our past results as indicative of our future performance. If our revenues or operating results fall below the expectations of investors or securities analysts, or below any guidance we may provide to the market, the price of our common stock could decline substantially.

In addition to other risk factors listed in this section, factors that may affect our quarterly operating results include the following:

 

    the level of advertising spend managed through our platform for a particular quarter;

 

    customer renewal rates, and the pricing and usage of our platform in any renewal term;

 

    demand for our platform and the size and timing of our sales;

 

    customers delaying purchasing decisions in anticipation of new releases by us or of new products by our competitors;

 

    network outages or security breaches and any associated expenses;

 

    changes in the competitive dynamics of our industry, including consolidation among competitors or customers;

 

    market acceptance of our current and future solutions;

 

    changes in spending on digital advertising or information technology and software by our current and/or prospective customers;

 

    budgeting cycles of our customers;

 

    our potentially lengthy sales cycle;

 

    our ability to control costs, including our operating expenses;

 

    the amount and timing of infrastructure costs and operating expenses related to the maintenance and expansion of our business, operations and infrastructure;

 

    foreign currency exchange rate fluctuations; and

 

    general economic and political conditions in our domestic and international markets.

Based upon all of the factors described above, we have a limited ability to forecast our future revenues, costs and expenses, and as a result, our operating results may from time to time fall below our estimates or the expectations of public market analysts and investors.

We might require additional capital to support business growth, and this capital might not be available on acceptable terms, if at all.

We intend to continue to make investments to support our business growth and may require additional funds to respond to business challenges, including the need to develop new features or enhance our existing platform, improve our operating infrastructure or acquire complementary businesses and technologies. Accordingly, we may need to engage in equity or debt financings to secure additional funds. If we raise additional funds through further issuances of equity or convertible debt securities, our existing

 

41


Table of Contents

stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. In addition, we may not be able to obtain additional financing on terms favorable to us, if at all. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly impaired.

We recently acquired NowSpots, Inc. (“Perfect Audience”) and the anticipated benefits of the acquisition could be impacted by a number of factors which may adversely harm our business and operating results.

On June 2, 2014, we completed our acquisition of NowSpots, Inc. (“Perfect Audience”). The process of integrating Perfect Audience’s operations into our operations could result in unforeseen operating difficulties, cause a significant diversion of management’s attention, and require allocating existing resources that would otherwise be available for the ongoing development of our existing operations. We may not achieve the anticipated benefits from the acquisition of Perfect Audience due to a number of factors, such as those in the subsequent risk factor, as well as:

 

    regulatory and commercial risks relating to retargeting of online advertising, the primary business of Perfect Audience;

 

    failure of Perfect Audience’s business to perform as we anticipated;

 

    failure to successfully integrate Perfect Audience’s solution with our platform;

 

    failure to realize the synergies between Perfect Audience’s solution and our platform; and

 

    difficulty integrating Perfect Audience employees into our business.

If we are unsuccessful in addressing these risks and challenges it may adversely harm our business and operating results.

We will continue to selectively pursue acquisitions of complementary businesses and technologies, which could divert our management’s attention, result in additional dilution to our stockholders and otherwise disrupt our operations and adversely affect our operating results.

We will continue to selectively pursue acquisitions of complementary businesses and technologies that we believe could complement or expand our applications, enhance our technical capabilities or otherwise offer growth opportunities. The pursuit of potential acquisitions may divert the attention of management and cause us to incur various expenses in identifying, investigating and pursuing suitable acquisitions, whether or not they are consummated.

If we acquire businesses or technologies, we may not be able to integrate the acquired personnel, operations and technologies successfully, or effectively manage the combined business following the acquisition. We also may not achieve the anticipated benefits from the acquired business due to a number of factors, including:

 

    inability to integrate or benefit from acquired technologies or services in a profitable manner;

 

    unanticipated costs or liabilities associated with the acquisition;

 

    incurrence of acquisition-related costs;

 

    difficulty integrating the accounting systems, operations and personnel of the acquired business;

 

    difficulties and additional expenses associated with supporting legacy products and hosting infrastructure of the acquired business;

 

    difficulty converting the customers of the acquired business onto our applications and contract terms, including disparities in the revenues, licensing, support or professional services model of the acquired company;

 

    diversion of management’s attention from other business concerns;

 

    adverse effects to our existing business relationships with business partners and customers as a result of the acquisition;

 

    the potential loss of key employees;

 

    use of resources that are needed in other parts of our business; and

 

    use of substantial portions of our available cash to consummate the acquisition.

 

42


Table of Contents

In addition, a significant portion of the purchase price of companies we acquire may be allocated to acquired goodwill and other intangible assets, which must be assessed for impairment at least annually. If our acquisitions do not yield expected returns, we may be required to take charges to our operating results based on this impairment assessment process, which could adversely affect our results of operations.

Acquisitions could also result in dilutive issuances of equity securities or the incurrence of debt, which could adversely affect our operating results. For instance, in connection with the acquisition of Perfect Audience, we issued 1.7 million shares of our common stock. In addition, if an acquired business fails to meet our expectations, our operating results, business and financial position may suffer.

If we are unable to implement and maintain effective internal control over financial reporting in the future, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our common stock may be negatively affected.

As a public company, we are required to maintain internal control over financial reporting and to report any material weaknesses in such internal control. Section 404 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act) requires that we evaluate and determine the effectiveness of our internal control over financial reporting and, beginning with our Annual Report on Form 10-K for the fiscal year ending December 31, 2014, provide a management report on the internal control over financial reporting, and a report by our independent registered public accounting firm to the extent we decide not to avail ourselves of the exemption provided to an emerging growth company, as defined by The Jumpstart Our Businesses Act of 2012 (the JOBS Act). If we have a material weakness in our internal control over financial reporting, we may not detect errors on a timely basis and our financial statements may be materially misstated. We are in the process of designing and implementing the internal control over financial reporting required to comply with this obligation, which process will be time consuming, costly, and complicated. If we identify material weaknesses in our internal control over financial reporting, if we are unable to comply with the requirements of Section 404 in a timely manner, if we are unable to assert that our internal control over financial reporting are effective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our common stock could be negatively affected, and we could become subject to investigations by the stock exchange on which our securities are listed, the SEC, or other regulatory authorities, which could require additional financial and management resources.

We are an emerging growth company and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors.

For as long as we continue to be an emerging growth company, we intend to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies including, but not limited to, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We cannot predict if investors will find our common stock less attractive because we will rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.

We will remain an emerging growth company until the earliest of (i) the end of the fiscal year in which the market value of our common stock that is held by non-affiliates exceeds $700 million as of June 30, (ii) the end of the fiscal year in which we have total annual gross revenues of $1 billion or more during such fiscal year, (iii) the date on which we issue more than $1 billion in non-convertible debt in a three-year period or (iv) March 21, 2018.

We may not be able to utilize a significant portion of our net operating loss or research tax credit carryforwards, which could adversely affect our profitability.

As of December 31, 2013, we had federal and state net operating loss carryforwards due to prior period losses, which if not utilized will begin to expire in 2026 and 2016 for federal and state purposes, respectively. We also have federal research tax credit carryforwards, which if not utilized will begin to expire in 2026. These net operating loss and research tax credit carryforwards could expire unused and be unavailable to offset future income tax liabilities, which could adversely affect our profitability.

In addition, under Section 382 of the Internal Revenue Code of 1986, as amended (the Code), our ability to utilize net operating loss carryforwards or other tax attributes, such as research tax credits, in any taxable year may be limited if we experience an “ownership change.” A Section 382 “ownership change” generally occurs if one or more stockholders or groups of stockholders who own at least 5% of our stock increase their ownership by more than 50 percentage points over their lowest ownership percentage within a rolling three-year period. Similar rules may apply under state tax laws.

 

43


Table of Contents

Future issuances of our stock could cause an “ownership change.” It is possible that any future ownership change could have a material effect on the use of our net operating loss carryforwards or other tax attributes, which could adversely affect our profitability.

Our reported financial results may be adversely affected by changes in accounting principles generally accepted in the United States.

Generally accepted accounting principles in the United States are subject to interpretation by the Financial Accounting Standards Board (“FASB”), the SEC, and various bodies formed to promulgate and interpret appropriate accounting principles. A change in these principles or interpretations could have a significant effect on our reported financial results, and could affect the reporting of transactions completed before the announcement of a change.

Risks Related to the Ownership of Our Common Stock

The trading prices of the securities of technology companies have been highly volatile. Accordingly, the market price of our common stock has been, and is likely to continue to be, subject to wide fluctuations and could subject us to litigation.

Factors affecting the market price of our common stock include:

 

    variations in our revenue, billings, gross margin, operating results, free cash flow, loss per share and how these results compare to analyst expectations;

 

    forward looking guidance on billings, revenue, gross margin, operating results, free cash flow, and loss per share;

 

    announcements of technological innovations, new products or services, strategic alliances, acquisitions or significant agreements by us or by our competitors;

 

    disruptions in our cloud-based operations or services or disruptions of other prominent cloud-based operations or services;

 

    the economy as a whole, market conditions in our industry, and the industries of our customers; and

 

    any other factors discussed herein.

In addition, the stock market in general has experienced substantial price and volume volatility that is often seemingly unrelated to the operating results of any particular companies. Moreover, if the market for technology stocks, especially digital advertising management and cloud computing-related stocks, or the stock market in general experiences uneven investor confidence, the market price of our common stock could decline for reasons unrelated to our business, operating results or financial condition. The market price for our stock might also decline in reaction to events that affect other companies within, or outside, our industry, even if these events do not directly affect us. Some companies that have experienced volatility in the trading price of their stock have been subject of securities litigation. If we are the subject of such litigation, it could result in substantial costs and a diversion of management’s attention and resources.

We do not intend to pay dividends for the foreseeable future.

We have never declared nor paid cash dividends on our capital stock. We currently intend to retain any future earnings to finance the operation and expansion of our business, and we do not expect to declare or pay any dividends in the foreseeable future. Consequently, stockholders must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment.

Our directors, officers and their respective affiliates beneficially own a significant percentage of our stock and will be able to exert significant control over matters subject to stockholder approval.

As of June 30, 2014, our directors, officers and their respective affiliates, beneficially owned approximately 22.2% of our outstanding voting stock. Therefore, these stockholders will continue to have the ability to influence us through this ownership position. These stockholders may be able to determine all matters requiring stockholder approval. For example, these stockholders could be able to control elections of directors, amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction. This may prevent or discourage unsolicited acquisition proposals or offers for our common stock that you may feel are in your best interest as one of our stockholders.

 

44


Table of Contents

If there are substantial sales of shares of our common stock, the price of our common stock could decline.

Sales of a substantial number of shares of our common stock in the public market, or the perception that these sales might occur could depress the market price of our common stock and may make it more difficult for you to sell your common stock at a time and price that you deem appropriate. We are unable to predict the effect that sales may have on the prevailing market price of our common stock. On June 16, 2014 we filed a Registration Statement on Form S-3 registering for sale approximately 1.7 million shares of our common stock (although a portion of such shares are subject to contractual restrictions for periods ranging from three months to several years). The SEC declared the Registration Statement on Form S-3 effective on June 25, 2014. In addition, as of June 30, 2014, the holders of an aggregate of 18.8 million shares of our common stock have rights, subject to some conditions, to require us to file registration statements covering their shares or to include their shares in registration statements that we may file for ourselves or our stockholders. Registration of these shares under the Securities Act would result in the shares becoming freely tradable without restriction under the Securities Act. Any sales of securities by existing stockholders could adversely affect the trading price of our common stock.

Delaware law and provisions in our restated certificate of incorporation and restated bylaws could make a merger, tender offer, or proxy contest difficult, thereby depressing the trading price of our common stock.

Our status as a Delaware corporation and the anti-takeover provisions of the Delaware General Corporation Law may discourage, delay, or prevent a change in control by prohibiting us from engaging in a business combination with an interested stockholder for a period of three years after the person becomes an interested stockholder, even if a change of control would be beneficial to our existing stockholders. In addition, our restated certificate of incorporation and restated bylaws contain provisions that may make the acquisition of our Company more difficult, including the following:

 

    our board of directors are classified into three classes of directors with staggered three-year terms and directors can only be removed from office for cause;

 

    only our board of directors has the right to fill a vacancy created by the expansion of our board of directors or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on our board of directors;

 

    only our chairman of the board, our lead independent director, our chief executive officer, our president, or a majority of our board of directors is authorized to call a special meeting of stockholders;

 

    certain litigation against us can only be brought in Delaware;

 

    our restated certificate of incorporation authorizes undesignated preferred stock, the terms of which may be established, and shares of which may be issued, without the approval of the holders of common stock; and

 

    advance notice procedures apply for stockholders to nominate candidates for election as directors or to bring matters before an annual meeting of stockholders.

If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.

The trading market for our common stock depends in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts who cover us downgrade our common stock or publish inaccurate or unfavorable research about our business, our common stock price would likely decline. If one or more of these analysts cease coverage of us or fail to publish reports on us regularly, demand for our common stock could decrease, which might cause our common stock price and trading volume to decline.

 

45


Table of Contents

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

Unregistered Sales of Equity Securities

On June 2, 2014, we issued 1,749,518 shares of our common stock in connection with our acquisition of Perfect Audience in reliance upon the exemption from registration requires of Rule 501 of Regulation D, promulgated under the Securities Act of 1933, as amended. On June 16, 2014, we filed a Registration Statement on Form S-3 covering 1,717,794 of such shares of our common stock, which such was declared effective by the SEC on June 25, 2014. No underwriters were involved in the foregoing sale of securities.

Use of Proceeds from Public Offering of Common Stock

There have been no material changes in our use of the proceeds from our initial public offering in March 2013.

Issuer Purchases of Equity Securities

The table below provides information with respect to repurchases of unvested shares of our common stock.

 

Period

   Total Number of
Shares
Purchased (1)
     Weighted
Average Purchase
Price
Per Share
     Total Number
of Shares
Purchased as
Part of
Publicly
Announced
Plans or
Programs
     Maximum Number
of Shares that May
Yet be Purchased
Under the Plans or
Programs
 

April 1 – April 30, 2014

     —           N/A         —           —     

May 1 – May 31, 2014

     991       $ 5.20         —           —     

June 1 – June 30, 2014

     —           N/A         —           —     

 

(1) Certain of our employees’ shares of common stock are subject to vesting. Unvested shares are subject to a right of repurchase by us in the event the holder of such shares is no longer employed by us. All shares in the above table were shares repurchased as a result of us exercising this right and not pursuant to a publicly announced plan or program.

ITEM 3. DEFAULTS UPON SENIOR SECURITES

None.

ITEM 4. MINE SAFETY DISCLOSURES

Not applicable.

ITEM 5. OTHER INFORMATION

None.

 

46


Table of Contents

ITEM 6. EXHIBITS

 

          Incorporated by Reference  

Number

  

Exhibit Title

   Form    File No.    Filing
Date
   Filed
Herewith
 
10.12#    Release Agreement, dated July 8, 2014, by and between the Registrant and Peter Wooster.               X   
31.1    Certification of Principal Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.               X   
31.2    Certification of Principal Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.               X   
32.1    Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*               X   
32.2    Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*               X   
101.INS    XBRL Instance Document.*               X   
101.SCH    XBRL Taxonomy Extension Schema Document.*               X   
101.CAL    XBRL Taxonomy Extension Calculation Linkbase Document.*               X   
101.DEF    XBRL Taxonomy Extension Definition Linkbase Document.*               X   
101.LAB    XBRL Taxonomy Extension Label Linkbase Document.*               X   
101.PRE    XBRL Taxonomy Extension Presentation Linkbase Document.*               X   

 

# Represents a management contract or compensatory plan.

 

* As contemplated by SEC Release No. 33-8212, these exhibits are furnished with this Quarterly Report on Form 10-Q and are not deemed filed with the Securities and Exchange Commission and are not incorporated by reference in any filing of Marin Software Incorporated under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language contained in such filings.

 

47


Table of Contents

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.

 

    MARIN SOFTWARE INCORPORATED

Dated: August 6, 2014

    By:  

/s/ David A. Yovanno

      David A. Yovanno
     

Chief Executive Officer

(Principal Executive Officer)

Dated: August 6, 2014

    By:  

/s/ John A. Kaelle

      John A. Kaelle
     

Chief Financial Officer

(Principal Financial Officer and

Principal Accounting Officer)

 

48


Table of Contents

EXHIBIT INDEX

 

          Incorporated by Reference     

Number

  

Exhibit Title

   Form    File No.    Filing
Date
   Filed
Herewith
10.12#    Release Agreement, dated July 8, 2014, by and between the Registrant and Peter Wooster.             X
31.1    Certification of Principal Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.             X
31.2    Certification of Principal Financial Officer pursuant to Rule 13a-14(a) of the Exchange Act, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.             X
32.1    Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*             X
32.2    Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*             X
101.INS    XBRL Instance Document.*             X
101.SCH    XBRL Taxonomy Extension Schema Document.*             X
101.CAL    XBRL Taxonomy Extension Calculation Linkbase Document.*             X
101.DEF    XBRL Taxonomy Extension Definition Linkbase Document.*             X
101.LAB    XBRL Taxonomy Extension Label Linkbase Document.*             X
101.PRE    XBRL Taxonomy Extension Presentation Linkbase Document.*             X

 

# Represents a management contract or compensatory plan.

 

* As contemplated by SEC Release No. 33-8212, these exhibits are furnished with this Quarterly Report on Form 10-Q and are not deemed filed with the Securities and Exchange Commission and are not incorporated by reference in any filing of Marin Software Incorporated under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language contained in such filings.
EX-10.12

Exhibit 10.12

 

LOGO

July 8, 2014

Peter Wooster

[PRIVATE ADDRESS]

Dear Peter:

This release agreement (“Agreement”) confirms the agreement between Marin Software Incorporated (the “Company”) and you regarding the terms of your separation from the Company on mutually agreeable terms as set forth below. You and the Company (collectively, the “Parties”) agree that this Agreement represents the full and complete agreement concerning your separation from employment with the Company.

 

1. Separation Date.

 

  (a) You resigned and your last date of employment and effective date of separation from employment with the Company was July 7, 2014 (the “Separation Date”).

 

  (b) On the Separation Date, you received payment of all accrued but unpaid wages through the Separation Date, including all accrued but unused vacation through the Separation Date.

 

2. Consideration. Provided that you sign and return this Agreement without revoking it as set forth in paragraphs 19 and 20, the Company will:

 

  (a) pay you an amount of $27,041, less all applicable taxes and other withholding. This payment will be made in a lump sum within two (2) regularly scheduled pay periods following the Effective Date of this Agreement as defined in paragraph 21, and may be direct deposited;

 

  (b) Provided that you timely elect and enroll in COBRA and that you have not secured alternate coverage, the Company will reimburse your COBRA costs for up to 2 months immediately following your Separation Date. Please submit your COBRA invoices to Nancy Kato for payment; and

 

  (c) allow you to keep for your personal use your laptop, computer monitor and keyboard. Your laptop must be first provided to the Company’s information technology department so all Proprietary Information can be removed and notwithstanding keeping the laptop you remain bound by Sections 6 and 7 (other than being permitted to keep the above referenced devices).

 

1


  3. Stock Options. Your stock options will cease vesting on the Separation Date. You have three months after the Separation Date in which to exercise vested stock options. All unvested stock options will be cancelled effective as of the Separation Date. Please contact Kathy Rogers, should you have any questions regarding your stock options.

 

  4. Benefits and COBRA. With the exception of medical and dental insurance, you will be eligible to participate in all employee benefit plans in which you are currently enrolled through your Separation Date. Your Company-provided medical and dental insurance will terminate effective the last day of the month of your Separation Date (July 31, 2014). Effective on the first day of the following month, you may elect to continue medical and dental insurance coverage at your own expense, except as otherwise provided in paragraph 2 of this Agreement, pursuant to a federal law known as COBRA. You will receive under separate cover information and enrollment forms regarding continuing insurance coverage pursuant to COBRA.

 

  5. No Other Payments. You understand and agree that absent this Agreement, you would not otherwise be entitled to the consideration specified in this Agreement. Further, by signing this Agreement, you agree that you are not entitled to any payments, benefits and/or other consideration from the Company that are not specifically listed in this Agreement, including but not limited to reinstatement to employment, attorneys’ fees, any amounts under bonus or incentive compensation plan, and/or any severance pay, except for those benefits in which you have vested rights pursuant to the terms of the applicable plans and applicable law or which are not released by this Agreement pursuant to paragraph 8(b) below. You further agree and acknowledge that upon the Company’s providing the payments and other benefits set forth in this Agreement, the Company has paid you in full any and all monies owed to you in connection with your employment with the Company and/or separation from employment, including but not limited to payment for all services performed on behalf of the Company and all other amounts owed through your Separation Date, except as otherwise specifically stated in this Agreement or which are not released by this Agreement pursuant to paragraph 8(b below.

 

  6. Employee Invention Assignment and Confidentiality Agreement. You hereby acknowledge that you are and will remain bound by all provisions of your previously executed Employee Invention Assignment and Confidentiality Agreement (“Confidentiality Agreement”), a copy of which is attached as Exhibit A to this Agreement and shall be deemed part of this Agreement. You further acknowledge that as a result of your employment with the Company, you have had access to the Company’s Proprietary Information (as defined in the Confidentiality Agreement), that you will hold all Proprietary Information in strictest confidence and that you will not make use of such Proprietary Information on behalf of anyone.

 

  7.

Return of Company Property. By signing this Agreement, you certify that you have (i) returned to the Company any and all Proprietary Information (as defined in the Confidentiality Agreement) and all other materials or documents belonging to the Company, including the originals and any and all copies thereof, whether in hard

 

2


  copy or electronic form, which were in your possession or under your control, including without limitation access and identification cards, keys, laptops, computers, cell phones, iphones, blackberries, PDAs or other devices, corporate credit cards, files, reports, mailing lists, rolodexes, computer print-outs, and computer disks and tapes; (ii) have not retained any copies of any Proprietary Information and/or any other materials, documents or property belonging to the Company or any of its affiliated entities; and (iii) have permanently deleted all Proprietary Information from your home and/or personal computer drives and from any other personal electronic, digital or magnetic storage devices.

 

8. General Release.

 

  (a) In consideration for the enhanced benefits that you will receive and any other consideration provided by this Agreement, you and any person acting by, through, under, or on behalf of you, release, waive, and forever discharge Marin Software Incorporated, its subsidiaries and affiliates and all of their respective agents, employees, officers, directors, shareholders, successors, and assigns (the “Company”) from any and all actions, demands, obligations, agreements, or proceedings of any kind, individually or as part of a group action, whether known or unknown, arising out of, or connected with, claims of unlawful discrimination, harassment or failure to accommodate; the terms and conditions of your employment; your compensation and benefits; your separation of employment from the Company; and/or termination of your employment, including, but not limited to all matters in law, in equity, in contract, or in tort, or pursuant to statute, constitution or ordinance, including damages, attorney’s fees, costs and expenses and, without limiting the generality of the foregoing, to all claims arising under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the National Labor Relations Act (NLRA),the Equal Pay Act; the Family and Medical Leave Act; the Employee Retirement Income Security Act; the California Fair Employment and Housing Act; the California Labor Code, or any other federal, state, or local law, statute, or ordinance affecting my employment with or separation from the Company.

 

  (b) Notwithstanding the generality of the foregoing, you do not release the following claims:

 

  (i) Claims relating to the Company’s failure to comply with its obligations to provide the consideration set forth in this Agreement;

 

  (ii) Claims that may not legally be waived by private agreement;

 

  (iii) Claims regarding the knowing and voluntary nature of your release of claims pursuant to the Age Discrimination in Employment Act;

 

  (iv) Claims under the Fair Labor Standards Act;

 

3


  (v) Claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law;

 

  (vi) Claims for workers’ compensation insurance benefits under the terms of any workers’ compensation insurance policy or fund of the Company;

 

  (vii) Claims to continued participation in certain of the Company’s benefit plans pursuant to the terms and conditions of the federal law known as COBRA;

 

  (viii) Claims to any benefit entitlements vested as the date of your employment termination, pursuant to written terms of any Company employee benefit plan; and

 

  (ix) Your right, if any, to indemnification from the Company, or to the payment of the costs of defense, under California Labor Code Section 2802.

 

  (x) Nothing in this Agreement prevents you from exercising rights under Section 7 of the NLRA to engage in joint activity with other employees, although by signing this release you are waiving rights to individual relief based on any assertion of claims, except where such a waiver of individual relief is prohibited.

 

  (c) You understand that nothing in this Agreement, including but not limited to the release of claims, proprietary information, confidentiality, cooperation and non-disparagement provisions, shall be construed to prohibit you from filing a charge or complaint with, or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal Employment Opportunity Commission and/or any federal, state or local agency charged with the enforcement of any laws, although by signing this Agreement, you understand that you are waiving any and all rights to receive individual relief based on claims asserted in such charge or complaint, except where such a waiver of individual relief is prohibited.

 

  (d) YOU ACKNOWLEDGE THAT YOU ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

BEING AWARE OF SAID CODE SECTION, YOU HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

 

4


9. Non-disparagement. You agree that you shall not directly or indirectly disparage the Releasees, any person acting by, through, under or in concert with any of them, and/or any of the Company’s products with any written or oral statement. Nothing in this paragraph shall prohibit you from providing truthful information in response to a subpoena or other legal process or from exercising the rights specified in Paragraphs 8(b) and 8(c) above and 21 below.

 

10. References. All external requests for references should be directed to Human Resources, which will confirm only your job title and dates of employment.

 

11. Arbitration. Except for any claim for injunctive relief arising out of a breach of a party’s obligations to protect the other’s proprietary information, the Parties agree to arbitrate in the City and County of San Francisco, California, through the American Arbitration Association , any and all disputes or claims arising out of or related to the validity, enforceability, interpretation, performance or breach of this Agreement, whether sounding in tort, contract, statutory violation or otherwise, or involving the construction or application or any of the terms, provisions, or conditions of this Agreement. Any arbitration may be initiated by a written demand to the other party. The arbitrator’s decision shall be final, binding, and conclusive. The Parties further agree that this Agreement is intended to be strictly construed to provide for arbitration as the sole and exclusive means for resolution of all disputes hereunder to the fullest extent permitted by law. The Parties expressly waive any entitlement to have such controversies decided by a court or a jury.

 

12. Attorney’s Fees. If any action is brought to enforce the terms of this Agreement, then to the fullest extent permitted by law, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and expenses from the other party, in addition to any other relief to which the prevailing party may be entitled.

 

13. Confidentiality of Agreement. The existence, contents, terms and conditions of this Agreement must be kept confidential by you and may not be disclosed except to your immediate family, accountant, tax advisor, or attorneys or pursuant to subpoena or court order. If you do disclose the existence, contents, terms and conditions of this Agreement to your immediate family, accountant, tax advisor, or/or attorneys, you must instruct the person to whom disclosure is made the information disclosed must be kept strictly confidential. You agree that if you are asked for information concerning this settlement, you will state only that you and the Company reached an amicable resolution of any disputes concerning your separation from the Company. Any breach of this confidentiality provision shall be deemed a material breach of this Agreement.

 

14. No Admission of Liability. This Agreement is not and shall not be construed or contended by you to be an admission or evidence of any wrongdoing or liability on the part of the Releasees.

 

5


15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

 

16. Severability. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, only such provision or provisions shall be invalid or unenforceable without invalidating or otherwise affecting the validity or enforceability of any other provisions, which shall remain in full force and effect to the fullest extent permitted by law.

 

17. Entire Agreement; Amendment. This Agreement, together with your Confidentiality Agreement attached hereto as Exhibit A, sets forth the entire agreement between you and the Company and supersedes any and all prior oral or written agreements or understanding between you and the Company concerning the subject matter thereof, including without limitation the Offer of Employment dated October 31, 2006. This Agreement may not be altered, amended or modified, except by a further written document signed by you and the Chief Executive Officer or Chief People Officer of the Company.

 

18. Representations And Waiver. By signing this Agreement, you acknowledge that:

 

  (a) You have carefully read, and understand, the legal and binding effect of this Agreement;

 

  (b) You have been given at least twenty-one (21) days to consider your rights and obligations under this Agreement and to consult with an attorney and/or any other advisors of your choice before signing this Agreement. You knowingly and voluntarily waive the remainder of the 21-day consideration period, if any, following the date you signed this release below. You have not been asked by the Company to shorten your time-period for consideration of whether to sign this release. The Company has not threatened to withdraw or alter the benefits due you prior to the expiration of the 21-day period nor has the Company provided different terms to you because you have decided to sign this release prior to the expiration of the 21-day consideration period. You understand that having waived some portion of the 21-day consideration period, the Company may expedite the processing of benefits provided you in exchange for signing this release. You agree that changes to this Agreement, whether material or immaterial, do not restart the running of the twenty-one (21) day period;

 

  (c) By this provision in the Agreement, you have been advised to consult with an attorney and/or any other advisors of your choice and you have had an opportunity to seek legal counsel before signing this Agreement;

 

  (d) You understand that this Agreement is legally binding and by signing it you give up certain rights, including your right to pursue any claims you had, have or may have had against the Company;

 

6


  (e) You have voluntarily chosen to enter into this Agreement and have not been forced or pressured in any way to sign it;

 

  (f) You have not relied upon any representation, statement or omission made by any of the Company’s agents, attorneys or representatives with regard to the subject matter, basis or effect of this Agreement or otherwise, other than those expressly stated in this Agreement;

 

  (g) You have (i) received all compensation due you as a result of services performed for the Company with the receipt of your final paycheck; (ii) reported to the Company any and all work-related injuries you incurred during your employment by the Company; (iii) been properly provided any leave of absence because of your or a family member’s health condition and have not been subjected to any improper treatment, conduct or actions due to a request for or taking such leave; and (iv) provided the Company with written notice of any and all concerns regarding suspected ethical and compliance issues or violations on the part of the Company or any released person or entity;

 

  (h) You further represent that no claims, complaints, charges or other proceedings are pending in any court, administrative agency, commission or other forum relating directly or indirectly to your employment by the Company.

 

  (i) The consideration for this release is in addition to anything of value to which you already are entitled; and

 

  (j) This Agreement does not waive any rights or claims that may arise after this Agreement is signed.

 

19. Return of Signed Agreement: You should return this signed Agreement to Nancy Kato, Chief People Officer, Marin Software, 123 Mission Street, 25th Floor, San Francisco, CA 94105, by no earlier than July 8, 2014 and no later than August 8, 2014. If you sign and/or return the Agreement earlier than July 8, 2014, or do not return the signed Agreement to Ms. Kato by August 8, 2014, this Agreement shall be deemed revoked, null, void and of no effect, and you shall have no entitlement to pay, benefits or any consideration as set forth in paragraph 2 of this Agreement.

 

20. Revocation Period and Effective Date: You have seven (7) calendar days from the date you sign this Agreement to change your mind and revoke this Agreement. If you do not advise the Company in writing within seven (7) calendar days after signing that you have revoked this Agreement, this Agreement shall be effective, enforceable and binding on all Parties on the eighth (8th) day after you sign this Agreement. If you change your mind and revoke this Agreement, you must send written notice of your decision to Nancy Kato, Chief People Officer, Marin Software, 123 Mission Street, 25th Floor, San Francisco, CA 94105 so that Ms. Kato receives your revocation no later than the eighth (8th) day after you originally signed this Agreement. You understand that the Company shall not be required to make payments or provide the consideration set forth in this Agreement unless this Agreement becomes effective. If the revocation period expires on a weekend or holiday, you understand you have until the end of the next business day to revoke.

 

7


21. You understand that following the seven day revocation period, this release will be final and binding. You promise that you will not pursue any claim that you have settled by this release. If you break this promise, you agree to pay all of the Company’s costs and expenses (including reasonable attorneys’ fees) related to the defense of any claims except this promise not to sue does not apply to claims that you may have under the Older Worker Benefit Protection Act (OWBPA) and the ADEA. Although you are releasing claims that you may have under OWBPA and the ADEA, you understand that you may challenge the knowing and voluntary nature of this release under the OWBPA and the ADEA before a court, the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), or any other federal, state or local agency charged with the enforcement of any employment laws. You understand, however, that if you pursue a claim against the Company under the OWBPA and/or the ADEA, a court has the discretion to determine whether the Company is entitled to restitution, recoupment, or set off (hereinafter “reduction”) against a monetary award obtained by you in the court proceeding. A reduction never can exceed the amount you recover, or the consideration you received for signing this release, whichever is less. You also recognize that the Company may be entitled to recover costs and attorney’s fees incurred by the Company as specifically authorized under applicable law.

If the above accurately reflects your understanding, please date and sign the enclosed copy of this letter in the places indicated below and return that copy to me in Human Resources.

 

Sincerely,

/s/ Nancy Kato

Nancy Kato

Chief People Officer
Marin Software Incorporated
Accepted and agreed to:

/s/ Peter Wooster

Peter Wooster

July 8, 2014

Date

 

8


EXHIBIT A

EMPLOYEE INVENTIONS ASSIGNMENT AND CONFIDENTIALITY AGREEMENT

 

9


MARIN SOFTWARE INCORPORATED

EMPLOYEE INVENTION ASSIGNMENT AND

CONFIDENTIALITY AGREEMENT

In consideration of, and as a condition of my employment with Marin Software Incorporated, a Delaware corporation (the Corporation), I hereby represent to, and agree with the Corporation as follows:

1. Purpose of Agreement. I understand that the Corporation is engaged in a continuous program of research, development, production and marketing in connection with its business and that it is critical for the Corporation to preserve and protect its Proprietary Information (as defined in Section 7 below), its rights in Inventions (as defined in Section 2 below) and in all related intellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this Agreement) as a condition of my employment with the Corporation, whether or not I am expected to create inventions of value for the Corporation.

2. Disclosure of Inventions. I will promptly disclose in confidence to the Corporation all inventions, improvements, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask works and trade secrets that I make or conceive or first reduce to practice or create, either alone or jointly with others, during the period of my employment, whether or not in the course of my employment, and whether or not patentable, copyrightable or protectable as trade secrets (the Invention).

3. Work for Hire; Assignment of Inventions. I acknowledge and agree that any copyrightable works prepared by me within the scope of my employment are “works for hire” under the Copyright Act and that the Corporation will be considered the author and owner of such copyrightable works. I agree that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Corporation, (ii) result from work performed by me for the Corporation, or (iii) relate to the Corporation’s business or current or anticipated research and development (the Assigned Inventions), will be the sole and exclusive property of the Corporation and are hereby irrevocably assigned by me to the Corporation. Attached hereto as Exhibit A is a list describing all inventions, original works of authorship, developments and trade secrets which were made by me prior to the date of this Agreement, which belong to me and which are not assigned to the Corporation (Prior Inventions). If no such list is attached, I agree that it is because no such Prior Inventions exist. I acknowledge and agree that if I use any of my Prior Inventions in the scope of my employment, or include them in any product or service of the Corporation, I hereby grant to the Corporation a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy, distribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with the same rights.


4. Labor Code Section 2870 Notice. I have been notified and understand that the provisions of Sections 3 and 5 of this Agreement do not apply to any Assigned Invention that qualifies fully under the provisions of Section 2870 of the California Labor Code, which states as follows:

ANY PROVISION IN AN EMPLOYMENT AGREEMENT WHICH PROVIDES THAT AN EMPLOYEE SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS OR HER RIGHTS IN AN INVENTION TO HIS OR HER EMPLOYER SHALL NOT APPLY TO AN INVENTION THAT THE EMPLOYEE DEVELOPED ENTIRELY ON HIS OR HER OWN TIME WITHOUT USING THE EMPLOYER’S EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET INFORMATION EXCEPT FOR THOSE INVENTIONS THAT EITHER: (1) RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE OF THE INVENTION TO THE EMPLOYER’S BUSINESS, OR ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER; OR (2) RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE EMPLOYER. TO THE EXTENT A PROVISION IN AN EMPLOYMENT AGREEMENT PURPORTS TO REQUIRE AN EMPLOYEE TO ASSIGN AN INVENTION OTHERWISE EXCLUDED FROM BEING REQUIRED TO BE ASSIGNED UNDER CALIFORNIA LABOR CODE SECTION 2870(a), THE PROVISION IS AGAINST THE PUBLIC POLICY OF THIS STATE AND IS UNENFORCEABLE.

5. Assignment of Other Rights. In addition to the foregoing assignment of Assigned Inventions to the Corporation, I hereby irrevocably transfer and assign to the Corporation: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions, along with any registrations of or applications to register such rights; and (ii) any and all “Moral Rights” (as defined below) that I may have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral Rights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Corporation. “Moral Rights” mean any rights to claim authorship of or credit on an Assigned Inventions, to object to or prevent the modification or destruction of any Assigned Inventions or Prior Inventions licensed to Corporation under Section 3, or to withdraw from circulation or control the publication or distribution of any Assigned Inventions or Prior Inventions licensed to Corporation under Section 3, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” Notwithstanding the foregoing, I will have the right to claim participation in the development, creation, or modification of the Assigned Inventions on my resume or in my curriculum vita; provided that I obtain Corporation’s approval for such disclosures before providing the disclosure to any third-party.

6. Assistance. I agree to assist the Corporation in every proper way to obtain for the Corporation and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Corporation’s Assigned Inventions in any and all countries. I will execute any documents that the Corporation may reasonably request for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My

 

2


obligations under this paragraph will continue beyond the termination of my employment with the Corporation, provided that the Corporation will compensate me at a reasonable rate after such termination for time or expenses actually spent by me at the Corporation’s request on such assistance. I appoint the Secretary of the Corporation as my attorney-in-fact to execute documents on my behalf for this purpose.

7. Proprietary Information. I understand that my employment by the Corporation creates a relationship of confidence and trust with respect to any information of a confidential or secret nature that may be disclosed to me by the Corporation or a third party that relates to the business of the Corporation or to the business of any parent, subsidiary, affiliate, customer or supplier of the Corporation or any other party with whom the Corporation agrees to hold information of such party in confidence (the Proprietary Information). Such Proprietary Information includes, but is not limited to, Assigned Inventions, marketing plans, product plans, business strategies, financial information, forecasts, personnel information, customer lists and data, and domain names.

8. Confidentiality. At all times, both during my employment and after its termination, I will keep and hold all such Proprietary Information in strict confidence and trust. I will not use or disclose any Proprietary Information without the prior written consent of the Corporation, except as may be necessary to perform my duties as an employee of the Corporation for the benefit of the Corporation. Upon termination of my employment with the Corporation, I will promptly deliver to the Corporation all documents and materials of any nature pertaining to my work with the Corporation and, upon the Corporation’s request, will execute a document confirming my agreement to honor my responsibilities contained in this Agreement. I will not take with me or retain any documents or materials or copies thereof containing any Proprietary Information.

9. No Breach of Prior Agreement. I represent that my performance of all the terms of this Agreement and my duties as an employee of the Corporation will not breach any invention assignment, proprietary information, confidentiality or similar agreement with any former employer or other party. I represent that I will not bring with me to the Corporation or use in the performance of my duties for the Corporation any documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not been legally transferred to the Corporation.

10. Efforts; Duty Not to Compete. I understand that my employment with the Corporation requires my undivided attention and effort during normal business hours. While I am employed by the Corporation, I will not, without the Corporation’s express prior written consent, engage in any other employment or business that (i) directly competes with the current or future business of the Corporation; (ii) uses any Corporation information, equipment, supplies, facilities or materials; or (iii) otherwise conflicts with the Corporation’s business interest and causes a disruption of its operations.

11. Notification. I hereby authorize the Corporation to notify third parties, including, without limitation, customers and actual or potential employers, of the terms of this Agreement and my responsibilities hereunder.

 

3


12. Non-Solicitation of Employees/Consultants. During my employment with the Corporation and for a period of one (1) year thereafter, I will not directly or indirectly solicit away employees or consultants of the Corporation for my own benefit or for the benefit of any other person or entity.

13. Non-Solicitation of Suppliers/Customers. During and after the termination of my employment with the Corporation, I will not directly or indirectly solicit or otherwise take away customers or suppliers of the Corporation if, in so doing, I use or disclose any trade secrets or proprietary or confidential information of the Corporation. I agree that the non-public names and addresses of the Corporation’s customers and suppliers, and all other confidential information related to them, including their buying and selling habits and special needs, created or obtained by me during my employment, constitute trade secrets or proprietary or confidential information of the Corporation.

14. Name & Likeness Rights. I hereby authorize the Corporation to use, reuse, and to grant others the right to use and reuse, my name, photograph, likeness (including caricature), voice, and biographical information, and any reproduction or simulation thereof, in any form of media or technology now known or hereafter developed (including, but not limited to, film, video and digital or other electronic media), both during and after my employment, for any purposes related to the Corporation’s business, such as marketing, advertising, credits, and presentations.

15. Injunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the Corporation may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.

16. Governing Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its laws pertaining to conflict of laws. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement.

17. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement.

18. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.

 

4


19. Amendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the parties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set forth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section will be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.

20. Successors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Corporation.

21. Further Assurances. The parties agree to execute such further documents and instruments and to take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.

22. “At Will” Employment. I understand that this Agreement does not constitute a contract of employment or obligate the Corporation to employ me for any stated period of time. I understand that I am an “at will” employee of the Corporation and that my employment can be terminated at any time, with or without notice and with or without cause, for any reason or for no reason, by either the Corporation or myself. I acknowledge that any statements or representations to the contrary are ineffective, unless put into a writing signed by the Corporation. I further acknowledge that my participation in any stock option or benefit program is not to be construed as any assurance of continuing employment for any particular period of time. This Agreement shall be effective as of the first day of my employment by the Corporation, which is March 19, 2007.

 

Marin Software Incorporated:     Employee:
By:  

/s/ Christopher Lien

   

/s/ Peter Wooster

  Christopher Lien     [Signature]
  Chief Executive Officer    

Peter Wooster

      Name [Please Print]

 

5


Exhibit A

Prior Inventions Not Assigned to Corporation


 

LOGO

October 31, 2006

Mr. Peter Wooster

[PRIVATE ADDRESS]

Offer of Employment by Marin Software Incorporated

Dear Peter:

I am very pleased to confirm our offer to you of employment with Marin Software Incorporated (the Company) in the position of Vice President of Sales. In this position you will report to Chief Executive Officer Christopher Lien. Your start date shall be as we shall mutually agree, and I hope that you will decide to accept our offer of employment on or before November 3, 2006. The terms of our offer and the benefits currently provided by the Company are as described below. In addition, additional terms of your employment and expected duties are more fully described in the attached Employment Outline.

1. Starting Salary. Your starting base salary will be $140,000 per year (less normal payroll deductions and withholdings), and will be adjusted in accordance with the attached Employment Outline. In addition to your base salary, you will be paid the annualized draws in accordance with the attached Employment Outline.

2. Benefits. In addition, you will be eligible to participate in regular health insurance, bonus and other employee benefit plans established by the Company for its employees from time to time. Except as expressly provided herein, the Company reserves the right to change or otherwise modify, in its sole discretion, the preceding terms of employment, as well as any of the terms set forth herein at any time in the future. In addition, if so requested, the Company will reimburse you for your monthly COBRA costs (up to $1,500 per month) prior to the establishment by the Company of regular health insurance benefits. As discussed with you, the Company plans to offer to its employees health, dental and vision benefits in 2007. In addition, the Company agrees to provide you with 15 days per year of paid vacation in addition to regular Company holidays. The Company also, if you elect to drive to work, reimburses 50% of monthly parking expenses.

3. Confidentiality. As an employee of the Company, you will have access to certain confidential information of the Company and you may, during the course of your employment, develop certain information or inventions that will be the property of the Company. To protect the interests of the Company, you will need to sign the Company’s standard “Employee Invention Assignment and Confidentiality Agreement” as a condition of your employment. We wish to impress upon you that we do not want you to, and we hereby direct you not to, bring with you any confidential or proprietary material of any former employer or to violate any other obligations you may have to any former employer. During the period that you render services to the Company, you agree to not engage in any employment, business or activity that is in any way competitive with the business or proposed business of the Company. You will disclose to the Company in writing any other gainful employment, business or activity that you are currently associated with or participate in that competes with the Company. You will not assist any other person or organization in competing with the Company or in preparing to engage in competition with the business or proposed business of the Company. You represent that your signing of this offer letter and the Company’s Employee Invention Assignment and Confidentiality Agreement and your commencement of employment with the Company will not violate any agreement currently in place between yourself and current or past employers. Notwithstanding anything in this Agreement to the contrary, you may engage in charitable activities and community affairs, and with the

 

332 Pine Street, Suite 800  |  San Francisco, CA 94104  |  (415) 828-1010  |  (415) 399-9710 (fax)  |  www.marinsoftware.com


LOGO

Peter Wooster

October 31, 2006

 

prior approval of the Board of Directors you may serve as a director of any corporation which does not compete in any way with Company business or proposed business; provided that such activities are not inconsistent with your obligations to the Company.

4. Options.

(a) We will recommend to the Board of Directors of the Company that you be granted, under the Company’s 2006 Equity Incentive Plan, as amended (the Plan), an option to purchase 2.0% fully diluted of the Company’s Common Stock, with an exercise price equal to the fair market value of the Company’s Common Stock as determined by the Board of Directors on the date of grant. The shares of Common Stock subject to the option will, for so long as you remain continuously employed by the Company become vested according to the following four-year schedule (subject to adjustment as described below); (i) 12.5% of the shares will be vested as of six months from your employment start date (the First Vesting Date); and (ii) thereafter at the end of each full succeeding calendar month, 2.0833% of the total shares will become vested.

(b) Stock Option Agreements. Following approval by the Board of Directors, the Company will provide you with a stock option agreement, which will govern the terms of the option.

(c) Board Approval Required. The grant by the Company of the stock option specified above is subject to the Board of Directors’ approval, and the references to the recommendation for such approval is not a promise of compensation and, prior to such approval, is not intended to create an obligation on the part of the Company.

5. At Will Employment. While we look forward to a profitable relationship, should you decide to accept our offer, you will be an at-will employee of the Company, which means the employment or other relationship can be terminated by either of us for any reason, at any time, with or without prior notice and with or without cause. You should regard any statements or representations to the contrary (and, Indeed, any statements contradicting any provision in this letter) as ineffective. Further, your participation in any stock option or benefit program is not to be regarded as assuring you of continuing employment or service for any particular period of time. Any modification or change in your at-will employment status may only occur by way of a written employment agreement signed by you and an authorized officer of the Company (other than you), and approved by the Company’s Board of Directors.

6. Authorization to Work. Please note that because of employer regulations adopted in the Immigration Reform and Control Act of 1986, within three (3) business days of starting your new position you will need to present documentation demonstrating that you have authorization to work in the United States.

7. Arbitration. You and the Company shall submit to mandatory and exclusive binding arbitration of any controversy or claim arising out of, or relating to, this Agreement or any breach hereof, provided, however, that the parties retain their right to, and shall not be prohibited, limited or in any other way restricted from, seeking or obtaining equitable relief from a court having jurisdiction over the parties. Such arbitration shall be governed by the Federal Arbitration Act and conducted through the American Arbitration Association in the State of California, San Francisco County, before a single neutral arbitrator, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association in effect at that time. The parties may conduct only essential discovery prior to the hearing, as defined by the AAA arbitrator. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based. You shall bear only those costs of arbitration you would

 

332 Pine Street, Suite 800  |  San Francisco, CA 94104  |  (415) 828-1010  |  (415) 399-9710 (fax)  |  www.marinsoftware.com


LOGO

Peter Wooster

October 31, 2006

 

otherwise bear had you brought a claim covered by this Agreement in court. Judgment upon the determination or award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In addition to any other award, the arbitrator shall award the prevailing party attorneys’ fees, costs and arbitration costs, incurred by the prevailing party as a result of the arbitration.

8. Successors, Binding Agreement. This Agreement shall not automatically be terminated by the voluntary or involuntary dissolution of the Company or by any merger or consolidation, whether or not the Company is the surviving or resulting corporation, or upon any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation or transfer of assets, the provisions of this Agreement shall bind and inure to the benefit of the surviving or resulting corporation, or the corporation to which such assets shall have been transferred, as the case may be; provided, however, that the Company will require any successor to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory to you, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.

9. Miscellaneous. This Agreement shall be construed and enforced in accordance with the laws of the State of California without giving effect to California’s choice of law rules. No waiver of any term of this Agreement constitutes a waiver of any other term of this Agreement. This Agreement may be amended only in writing by an agreement specifically referencing this Agreement which is signed by both you and the Company. In the event that a court or other trier of fact invalidates one or more terms of this Agreement, all the other terms of this Agreement shall remain valid and enforceable. You shall have no duty to mitigate any damages caused by the breach of the Company of this Agreement.

10. Acceptance. If you decide to accept our offer, and I hope you will, please sign the enclosed copy of this letter in the space indicated and return it to me. Your signature will acknowledge that you have read and understood and agreed to the terms and conditions of this offer letter and the attached documents, if any. Should you have anything else that you wish to discuss, please do not hesitate to call me at (415) 828-1010.

We look forward to the opportunity to welcome you to the Company.

 

Very truly yours,

/s/ Christopher Lien

Christopher Lien, Founder and CEO

I have read and understood this offer letter and hereby acknowledge, accept and agree to the terms as set forth above and on the attached Employment Outline and further acknowledge that no other commitments were made to me as part of my employment offer except as specifically set forth herein.

 

/s/ Peter Wooster

           Date signed: 11/3/06
Peter Wooster   

 

332 Pine Street, Suite 800  |  San Francisco, CA 94104  |  (415) 828-1010  |  (415) 399-9710 (fax)  |  www.marinsoftware.com

EX-31.1

Exhibit 31.1

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, David A. Yovanno, certify that:

 

1. I have reviewed this quarterly report on Form 10-Q of Marin Software Incorporated;

 

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 Exchange Act Rules13a-15(e) and 15d-15(e)) 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. 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

 

  c. 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: August 6, 2014       By:  

/s/ David A. Yovanno

      David A. Yovanno
     

Chief Executive Officer

(Principal Executive Officer)

EX-31.2

Exhibit 31.2

CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, John A. Kaelle, certify that:

 

1. I have reviewed this quarterly report on Form 10-Q of Marin Software Incorporated;

 

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 Rules13a-15(e) and 15d-15(e)) 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. 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

 

  c. 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: August 6, 2014       By:  

/s/ John A. Kaelle

      John A. Kaelle
     

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)

EX-32.1

Exhibit 32.1

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, David A. Yovanno, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

(1) the Quarterly Report of Marin Software Incorporated on Form 10-Q for the fiscal quarter ended June 30, 2014 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Marin Software Incorporated for the periods presented therein.

 

Date: August 6, 2014       By:  

/s/ David A. Yovanno

      David A. Yovanno
     

Chief Executive Officer

(Principal Executive Officer)

EX-32.2

Exhibit 32.2

CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, John A. Kaelle, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

(1) the Quarterly Report of Marin Software Incorporated on Form 10-Q for the fiscal quarter ended June 30, 2014 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Marin Software Incorporated for the periods presented therein.

 

Date: August 6, 2014       By:  

/s/ John A. Kaelle

      John A. Kaelle
     

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)