Digital Media Solutions, Inc. - Quarter Report: 2022 September (Form 10-Q)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| ☒ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||
For the quarterly period ended September 30, 2022
OR
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||
For the transition period from _________ to __________
_______________________________________
Digital Media Solutions, Inc.
(Exact name of Registrant as specified in its charter)
_______________________________________
Delaware | 001-38393 | 98-1399727 | ||||||
| (State of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||
4800 140th Avenue N., Suite 101, Clearwater, Florida | 33762 | |||||||
(Address of Principal Executive Offices) | (Zip Code) | |||||||
Registrant's telephone number, including area code: (877) 236-8632
(Former Name or Former Address, if Changed Since Last Report)
_______________________________________
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||
| Class A common stock, $0.0001 par value per share | DMS | New York Stock Exchange | ||||||||||||
| Redeemable warrants to acquire Class A common stock | DMS WS | New York Stock Exchange | ||||||||||||
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 ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☒ | ||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | ☒ | ||||||||
| Emerging growth company | ☒ | ||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of November 7, 2022, 39,926,324 shares of the registrant’s Class A common stock; 25,699,464 of the registrant’s Class B common stock, par value $0.0001 per share; and 13,999,078 warrants to purchase shares of the registrant’s Class A common stock, par value $0.0001 per share, were issued and outstanding.
Digital Media Solutions, Inc.
Table of Contents
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Cautionary Note Regarding Forward-Looking Statements
References in this document to the “Registrant,” “DMS Inc.,” “DMS,” the “Company,” “we,” “management,” “us” or “our” refers to Digital Media Solutions, Inc. and its consolidated subsidiaries, except where the context otherwise requires or indicates.
This Quarterly Report, particularly Part I. Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) and Part II. Item 1A. Risk Factors, and the documents we incorporate into this Quarterly Report contain certain statements that are, or may be deemed to be, forward-looking statements within the meaning of that term in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are made in reliance upon the protections provided by such acts for forward-looking statements. These forward looking statements are often identified by words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions. These forward-looking statements include, without limitation, DMS’s expectations with respect to its future performance and its ability to implement its strategy, and are based on the beliefs and expectations of our management team from the information available at the time such statements are made. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside DMS’s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the COVID-19 pandemic or other public health crises; (2) changes in client demand for our services and our ability to adapt to such changes; (3) the entry of new competitors in the market; (4) the ability to maintain and attract consumers and advertisers in the face of changing economic or competitive conditions; (5) the ability to maintain, grow and protect the data DMS obtains from consumers and advertisers; (6) the performance of DMS’s technology infrastructure; (7) the ability to protect DMS’s intellectual property rights; (8) the ability to successfully source and complete acquisitions and to integrate the operations of companies DMS acquires, including Traverse Data, Inc., the Crisp Results assets and Aimtell, PushPros and Aramis Interactive; (9) the ability to improve and maintain adequate internal controls over financial and management systems, and remediate the identified material weakness; (10) changes in applicable laws or regulations and the ability to maintain compliance; (11) our substantial levels of indebtedness; (12) volatility in the trading price on the NYSE of our common stock and warrants; (13) fluctuations in value of our private placement warrants; and (14) other risks and uncertainties indicated from time to time in
DMS’s filings with the U.S. Securities and Exchange Commission (“SEC”), including those under “Risk Factors” in DMS’s Annual Report on Form 10-K for the year ended December 31, 2021, filed on March 16, 2022 (“2021 Form 10-K”) and its subsequent filings with the SEC.
There may be additional risks that we consider immaterial or which are unknown, and it is not possible to predict or identify all such risks.
DMS cautions that the foregoing list of factors is not exclusive. DMS cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. DMS does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
DIGITAL MEDIA SOLUTIONS, INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(in thousands, except per share data)
| September 30, 2022 | December 31, 2021 | ||||||||||
| ASSETS | |||||||||||
| Current assets: | |||||||||||
| Cash and cash equivalents | $ | 18,271 | $ | 26,394 | |||||||
Accounts receivable, net of allowances of $5,654 and $4,459, respectively | 45,780 | 51,578 | |||||||||
| Prepaid and other current assets | 2,468 | 3,698 | |||||||||
| Income tax receivable | 1,399 | 2,078 | |||||||||
| Total current assets | 67,918 | 83,748 | |||||||||
| Property and equipment, net | 18,167 | 19,168 | |||||||||
| Goodwill | 77,219 | 76,558 | |||||||||
| Intangible assets, net | 53,825 | 66,228 | |||||||||
| Other assets | 808 | 889 | |||||||||
| Total assets | $ | 217,937 | $ | 246,591 | |||||||
| LIABILITIES AND DEFICIT | |||||||||||
| Current liabilities: | |||||||||||
| Accounts payable | $ | 36,348 | $ | 42,073 | |||||||
| Accrued expenses and other current liabilities | 9,335 | 9,473 | |||||||||
| Current portion of long-term debt | 2,250 | 2,250 | |||||||||
| Income taxes payable | 721 | 103 | |||||||||
| Tax Receivable Agreement liability | 1,190 | 1,310 | |||||||||
| Contingent consideration payable - current | 1,371 | 7,370 | |||||||||
| Deferred acquisitions consideration payable - current | 5,000 | 4,785 | |||||||||
| Total current liabilities | 56,215 | 67,364 | |||||||||
| Long-term debt | 214,838 | 215,505 | |||||||||
| Deferred tax liabilities | 4,060 | 4,786 | |||||||||
| Private Placement Warrant liabilities | 1,480 | 3,960 | |||||||||
| Contingent consideration payable - non-current | 31 | 1,069 | |||||||||
| Other non-current liabilities | 1,530 | 1,725 | |||||||||
| Total liabilities | 278,154 | 294,409 | |||||||||
| Stockholders' deficit: | |||||||||||
Preferred stock, $0.0001 par value, 100,000 shares authorized; none issued and outstanding at September 30, 2022 | — | — | |||||||||
Class A common stock, $0.0001 par value, 500,000 shares authorized; 39,926 issued and outstanding at September 30, 2022 | 4 | 3 | |||||||||
Class B convertible common stock, $0.0001 par value, 60,000 shares authorized; 25,699 issued and outstanding at September 30, 2022 | 3 | 3 | |||||||||
Class C convertible common stock, $0.0001 par value, 40,000 shares authorized; none issued and outstanding at September 30, 2022 | — | — | |||||||||
| Additional paid-in capital | (17,166) | (25,239) | |||||||||
Treasury stock, at cost, 125 and 0 shares, respectively | (156) | — | |||||||||
| Cumulative deficit | (17,544) | (944) | |||||||||
| Total stockholders' deficit | (34,859) | (26,177) | |||||||||
| Non-controlling interest | (25,358) | (21,641) | |||||||||
| Total deficit | (60,217) | (47,818) | |||||||||
| Total liabilities and deficit | $ | 217,937 | $ | 246,591 | |||||||
The accompanying notes are an integral part of the unaudited consolidated financial statements.
DIGITAL MEDIA SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(in thousands, except per share data)
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Net revenue | $ | 90,066 | $ | 107,399 | $ | 290,372 | $ | 309,281 | |||||||||||||||
| Cost of revenue (exclusive of depreciation and amortization) | 66,378 | 77,063 | 211,997 | 218,304 | |||||||||||||||||||
| Salaries and related costs | 11,668 | 12,449 | 38,612 | 34,426 | |||||||||||||||||||
| General and administrative expenses | 9,076 | 10,237 | 32,622 | 27,051 | |||||||||||||||||||
| Depreciation and amortization | 7,142 | 7,186 | 21,377 | 19,649 | |||||||||||||||||||
| Acquisition costs | 14 | 420 | 306 | 1,820 | |||||||||||||||||||
| Change in fair value of contingent consideration liabilities | (3) | (3,085) | 2,533 | (2,525) | |||||||||||||||||||
| (Loss) income from operations | $ | (4,209) | $ | 3,129 | $ | (17,075) | $ | 10,556 | |||||||||||||||
| Interest expense | 4,570 | 3,756 | 12,072 | 10,635 | |||||||||||||||||||
| Change in fair value of warrant liabilities | 1,000 | (6,400) | (2,480) | (13,835) | |||||||||||||||||||
| Change in Tax Receivable Agreement liability | (121) | — | (121) | — | |||||||||||||||||||
| Loss on debt extinguishment | — | — | — | 2,108 | |||||||||||||||||||
| Net (loss) income before income taxes | $ | (9,658) | $ | 5,773 | $ | (26,546) | $ | 11,648 | |||||||||||||||
| Income tax expense | 463 | 379 | 819 | 1,527 | |||||||||||||||||||
| Net (loss) income | $ | (10,121) | $ | 5,394 | $ | (27,365) | $ | 10,121 | |||||||||||||||
| Net (loss) income attributable to non-controlling interest | (4,010) | 1,858 | (10,765) | 4,217 | |||||||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. | $ | (6,111) | $ | 3,536 | $ | (16,600) | $ | 5,904 | |||||||||||||||
| Weighted-average shares outstanding - basic | 39,961 | 36,511 | 37,644 | 35,050 | |||||||||||||||||||
| Weighted-average shares outstanding - diluted | 65,660 | 63,321 | 37,644 | 61,988 | |||||||||||||||||||
| Earnings (loss) per share attributable to Digital Media Solutions, Inc.: | |||||||||||||||||||||||
| Basic - per common shares | $ | (0.15) | $ | 0.10 | $ | (0.44) | $ | 0.17 | |||||||||||||||
| Diluted - per common shares | $ | (0.15) | $ | 0.09 | $ | (0.44) | $ | 0.16 | |||||||||||||||
The accompanying notes are an integral part of the unaudited consolidated financial statements.
DIGITAL MEDIA SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN DEFICIT
(Unaudited)
(in thousands, except share data)
| Class A Common Stock | Class B Common Stock | Additional Paid-in Capital | Treasury Stock | Cumulative Deficit | Total Stockholders' Deficit | Non- controlling Interest | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total Deficit | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, June 30, 2022 | 36,564 | $ | 3 | 25,699 | $ | 3 | $ | (22,313) | $ | — | $ | (11,060) | $ | (33,367) | $ | (28,152) | $ | (61,519) | |||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | (6,111) | (6,111) | (4,010) | (10,121) | |||||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued in connection with the Crisp Earnout (Note 6) | 2,989 | 1 | — | — | 9,999 | — | — | 10,000 | — | 10,000 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | 1,579 | — | — | 1,579 | — | 1,579 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued under the 2020 Omnibus Incentive Plan | 498 | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||
| Treasury shares purchased under the 2020 Omnibus Incentive Plan | (125) | — | — | — | — | (156) | — | (156) | — | (156) | |||||||||||||||||||||||||||||||||||||||||||||||||
Impact of transactions affecting non-controlling interest (1) | — | — | — | — | (6,804) | — | — | (6,804) | 6,804 | — | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2022 | 39,926 | $ | 4 | 25,699 | $ | 3 | $ | (17,539) | $ | (156) | $ | (17,171) | $ | (34,859) | $ | (25,358) | $ | (60,217) | |||||||||||||||||||||||||||||||||||||||||
____________________
(1) The carrying amount of non-controlling interest was adjusted to reflect the change in ownership interest caused by shares issued in connection with the Crisp Earnout and shares issued under the 2020 Omnibus Incentive Plan.
| Class A Common Stock | Class B Common Stock | Additional Paid-in Capital | Cumulative Deficit | Total Stockholders' Deficit | Non- controlling Interest | ||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total Deficit | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, June 30, 2021 | 35,818 | $ | 3 | 25,699 | $ | 3 | $ | (27,642) | $ | (737) | $ | (28,373) | $ | (24,534) | $ | (52,907) | |||||||||||||||||||||||||||||||||||||
Net income | — | — | — | — | — | 3,536 | 3,536 | 1,858 | 5,394 | ||||||||||||||||||||||||||||||||||||||||||||
| Shares issued under the 2020 Omnibus Incentive Plan | 350 | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | 1,583 | — | 1,583 | — | 1,583 | ||||||||||||||||||||||||||||||||||||||||||||
Impact of transactions affecting non-controlling interest (1) | — | — | — | — | (1,416) | — | (1,416) | 1,416 | — | ||||||||||||||||||||||||||||||||||||||||||||
| Correction of Business Combination Tax Receivable Agreement | — | — | — | — | (322) | — | (322) | — | (322) | ||||||||||||||||||||||||||||||||||||||||||||
Other (2) | — | — | — | — | 80 | — | 80 | (75) | 5 | ||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2021 | 36,168 | $ | 3 | 25,699 | $ | 3 | $ | (27,717) | $ | 2,799 | $ | (24,912) | $ | (21,335) | $ | (46,247) | |||||||||||||||||||||||||||||||||||||
____________________
(1) The carrying amount of non-controlling interest was adjusted to reflect the change in ownership interest caused by shares issued under the 2020 Omnibus Incentive Plan.
(2) Includes costs associated with the issuance of equity shares.
The accompanying notes are an integral part of the unaudited consolidated financial statements.
| Class A Common Stock | Class B Common Stock | Additional Paid-in Capital | Treasury Stock | Cumulative Deficit | Total Stockholders' Deficit | Non- controlling Interest | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total Deficit | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2021 | 36,226 | $ | 3 | 25,699 | $ | 3 | $ | (25,239) | $ | — | $ | (944) | $ | (26,177) | $ | (21,641) | $ | (47,818) | |||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | (16,600) | (16,600) | (10,765) | (27,365) | |||||||||||||||||||||||||||||||||||||||||||||||||
SmarterChaos DMSH units redeemed and issued to Class A Common Stock (1) | 153 | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued in connection with the Crisp Earnout (Note 6) | 2,989 | 1 | — | — | 9,999 | — | — | 10,000 | — | 10,000 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | 5,695 | — | — | 5,695 | — | 5,695 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued under the 2020 Omnibus Incentive Plan | 683 | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||||
Distributions to non-controlling interest holders (2) | — | — | — | — | — | — | — | — | (573) | (573) | |||||||||||||||||||||||||||||||||||||||||||||||||
| Treasury shares purchased under the 2020 Omnibus Incentive Plan | (125) | — | — | — | — | (156) | — | (156) | — | (156) | |||||||||||||||||||||||||||||||||||||||||||||||||
Impact of transactions affecting non-controlling interest (3) | — | — | — | — | (7,621) | — | — | (7,621) | 7,621 | — | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2022 | 39,926 | $ | 4 | 25,699 | $ | 3 | $ | (17,166) | $ | (156) | $ | (17,544) | $ | (34,859) | $ | (25,358) | $ | (60,217) | |||||||||||||||||||||||||||||||||||||||||
____________________
(1) On January 17, 2022, the Sellers of SmarterChaos redeemed their remaining non-controlling interest held through DMSH Units in exchange for 153 thousand shares of Class A Common Stock in DMS, Inc. The non-controlling interest held by the Sellers of SmarterChaos did not include related Class B Common Stock to be retired upon redemption.
(2) Represents tax distributions to shareholders Prism, Clairvest and the Sellers of SmarterChaos. As of September 30, 2022, $10 thousand of these distributions have not been paid.
(3) The carrying amount of non-controlling interest was adjusted primarily to reflect the change in ownership interest caused by additional DMSH units redeemed and issued to Class A Common Stock by the Sellers of SmarterChaos, shares issued in connection with the Crisp Earnout and shares issued under the 2020 Omnibus Incentive Plan.
The accompanying notes are an integral part of the unaudited consolidated financial statements.
| Class A Common Stock | Class B Common Stock | Additional Paid-in Capital | Cumulative Deficit | Total Stockholders' Deficit | Non- controlling Interest | ||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total Deficit | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2020 | 32,393 | $ | 3 | 25,999 | $ | 3 | $ | (48,027) | $ | (3,146) | $ | (51,167) | $ | (44,518) | $ | (95,685) | |||||||||||||||||||||||||||||||||||||
| Net (loss) income | — | — | — | — | — | 5,945 | 5,945 | 4,176 | 10,121 | ||||||||||||||||||||||||||||||||||||||||||||
| Shares issued in connection with acquisition of Aramis, PushPros and Aimtell (Note 6) | 1,293 | — | — | — | 9,384 | — | 9,384 | 5,616 | 15,000 | ||||||||||||||||||||||||||||||||||||||||||||
| Shares issued in connection with acquisition of Crisp Results (Note 6) | 1,595 | — | — | — | 11,513 | — | 11,513 | 8,310 | 19,823 | ||||||||||||||||||||||||||||||||||||||||||||
| Exercise of warrants to issue Class A common stock | 1 | — | — | — | 17 | — | 17 | — | 17 | ||||||||||||||||||||||||||||||||||||||||||||
| Prism shares redeemed and issued to Class A Common Stock | 300 | — | (300) | — | 192 | — | 192 | — | 192 | ||||||||||||||||||||||||||||||||||||||||||||
SmarterChaos DMSH units redeemed and issued to Class A Common Stock (1) | 154 | — | — | — | 392 | — | 392 | — | 392 | ||||||||||||||||||||||||||||||||||||||||||||
| Shares issued under the 2020 Omnibus Incentive Plan | 432 | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | 4,342 | — | 4,342 | — | 4,342 | ||||||||||||||||||||||||||||||||||||||||||||
Impact of transactions affecting non-controlling interest (2) | — | — | — | — | (5,204) | — | (5,204) | 5,204 | — | ||||||||||||||||||||||||||||||||||||||||||||
| Correction of Business Combination Tax Receivable Agreement | — | — | — | — | (322) | — | (322) | — | (322) | ||||||||||||||||||||||||||||||||||||||||||||
Other (3) | — | — | — | — | (4) | — | (4) | (123) | (127) | ||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2021 | 36,168 | $ | 3 | 25,699 | $ | 3 | $ | (27,717) | $ | 2,799 | $ | (24,912) | $ | (21,335) | $ | (46,247) | |||||||||||||||||||||||||||||||||||||
____________________
(1) On June 30, 2021, the sellers of SmarterChaos redeemed approximately one-half of their non-controlling interest held through DMSH Units in exchange for Class A Common Stock in DMS Inc. The non-controlling interest held by the sellers of SmarterChaos did not include related Class B Common Stock to be retired upon redemption.
(2) The carrying amount of non-controlling interest was adjusted to reflect the change in ownership interest caused by additional controlling shares contributed as a result of the Crisp acquisition and non-controlling redemptions by Prism and the sellers of SmarterChaos.
(3) Includes costs associated with the issuance of equity shares.
The accompanying notes are an integral part of the unaudited consolidated financial statements.
DIGITAL MEDIA SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
| Nine Months Ended September 30, | |||||||||||
| 2022 | 2021 | ||||||||||
| Cash flows from operating activities | |||||||||||
| Net (loss) income | $ | (27,365) | $ | 10,121 | |||||||
| Adjustments to reconcile net income to net cash provided by operating activities | |||||||||||
| Provision for bad debt | 1,305 | 1,384 | |||||||||
| Depreciation and amortization | 21,377 | 19,649 | |||||||||
| Lease restructuring charges | (167) | (81) | |||||||||
| Loss on debt extinguishment | — | 2,108 | |||||||||
| Stock-based compensation, net of amounts capitalized | 5,332 | 3,976 | |||||||||
| Amortization of debt issuance costs | 1,149 | 1,006 | |||||||||
| Deferred income tax provision, net | (1,160) | (856) | |||||||||
| Change in fair value of contingent consideration | 2,533 | (2,525) | |||||||||
| Change in fair value of warrant liability | (2,480) | (13,835) | |||||||||
| Change in Tax Receivable Agreement liability | (120) | — | |||||||||
| Change in income tax receivable and payable | 1,297 | (728) | |||||||||
| Change in accounts receivable | 4,824 | (7,324) | |||||||||
| Change in prepaid expenses and other current assets | 1,120 | (2,121) | |||||||||
| Change in accounts payable and accrued expenses | (5,341) | (2,367) | |||||||||
| Change in other liabilities | (195) | (516) | |||||||||
| Net cash provided by operating activities | $ | 2,109 | $ | 7,891 | |||||||
| Cash flows from investing activities | |||||||||||
| Additions to property and equipment | $ | (5,247) | $ | (7,875) | |||||||
| Acquisition of businesses, net of cash acquired | (2,579) | (24,830) | |||||||||
| Net cash used in investing activities | $ | (7,826) | $ | (32,705) | |||||||
| Cash flows from financing activities | |||||||||||
| Proceeds from issuance of long-term debt | $ | — | $ | 220,840 | |||||||
| Payments of long-term debt and notes payable | (1,687) | (200,414) | |||||||||
| Proceeds from borrowings on revolving credit facilities | — | 11,000 | |||||||||
| Payments of borrowings on revolving credit facilities | — | (15,000) | |||||||||
| Payment of debt issuance costs | — | (3,565) | |||||||||
| Payment of equity issuance | — | (475) | |||||||||
| Payment of early termination | — | (188) | |||||||||
| Proceeds from warrants exercised | — | 11 | |||||||||
| Purchase of treasury stock related to stock-based compensation | (156) | — | |||||||||
| Distributions to non-controlling interest holders | (563) | — | |||||||||
| Other | — | (60) | |||||||||
| Net cash (used in) provided by financing activities | $ | (2,406) | $ | 12,149 | |||||||
| Net change in cash | $ | (8,123) | $ | (12,665) | |||||||
| Cash, beginning of period | 26,394 | 31,397 | |||||||||
| Cash, end of period | $ | 18,271 | $ | 18,732 | |||||||
| Nine Months Ended September 30, | |||||||||||
| 2022 | 2021 | ||||||||||
| Supplemental Disclosure of Cash Flow Information | |||||||||||
| Cash Paid During the Period For | |||||||||||
| Interest | $ | 10,651 | $ | 10,908 | |||||||
| Income taxes | $ | 662 | $ | 3,837 | |||||||
| Non-Cash Investing and Financing Transactions: | |||||||||||
| Contingent and deferred acquisition consideration | $ | 2,971 | $ | 11,877 | |||||||
| Stock-based compensation capitalized in property and equipment | $ | 363 | $ | 366 | |||||||
| Capital expenditures included in accounts payable | $ | 236 | $ | 550 | |||||||
| Issuance of equity for Aimtell/Aramis//PushPros, and Crisp Results | $ | 10,000 | $ | 35,000 | |||||||
The accompanying notes are an integral part of the unaudited consolidated financial statements.
DIGITAL MEDIA SOLUTIONS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1. BUSINESS, BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Digital Media Solutions, Inc. (“DMS Inc.”) is a digital performance marketing company offering a diversified lead and software delivery platform that drives high value and high intent leads to its customers. As used in this Quarterly Report, the “Company” refers to DMS Inc. and its consolidated subsidiaries, (including its wholly-owned subsidiary, CEP V DMS US Blocker Company, a Delaware corporation (“Blocker”)). The Company is headquartered in Clearwater, Florida. The Company primarily operates and derives most of its revenues in the United States.
Basis of Presentation
These consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) and applicable rules and regulations of the U.S. Securities and Exchange Commission (“SEC”) regarding interim financial reporting. Accordingly, they do not include all of the information and notes required by GAAP for annual financial statements. In the opinion of management, all adjustments consisting of normal and recurring entries considered necessary for a fair presentation of the results for the interim periods presented have been included. All significant intercompany balances and transactions have been eliminated. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect reported amounts in the financial statements and accompanying notes. These estimates are based on information available as of the date of the unaudited consolidated financial statements; therefore, actual results could differ from those estimates. Interim results are not necessarily indicative of the results for a full year.
Business Combination
On July 15, 2020, Digital Media Solutions Holding (“DMSH”) consummated the Business Combination with Leo Holdings Corp. (“Leo”) pursuant to the Business Combination Agreement (“Business Combination”). Pursuant to the Business Combination, DMS Inc. acquired, directly and through its acquisition of the equity of Blocker, approximately 60.8% of the membership interest in DMSH, while Prism Data, LLC, a Delaware limited liability company (“Prism”), CEP V-A DMS AIV Limited Partnership, a Delaware limited partnership (“Clairvest Direct Seller”) and related entities (the “Sellers”) retained approximately 39.2% of the membership interest in DMSH (“non-controlling interests”). For additional information, see Note 2. Business Combination in the Notes to Consolidated Financial Statements in our 2021 Form 10-K.
Non-controlling Interest
The non-controlling interest represents the membership interest in DMSH held by holders other than the Company. As of September 30, 2022, the Prism, Clairvest Direct Sellers and SmarterChaos combined ownership percentage in DMSH was 39.2% and as of December 31, 2021 it was 41.6%.
Principles of Consolidation
The Company consists of DMS Inc. and its wholly-owned subsidiary, Blocker. The Company consolidates the assets, liabilities and operating results of DMSH and its wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. The results of operations attributable to the non-controlling interests are included in the Company’s consolidated statements of operations, and the non-controlling interests are reported as a separate component of equity.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported as separate financial statement line items in the consolidated financial statements. Actual results could differ from those estimates. Management regularly makes estimates and assumptions that are inherent in the preparation of the consolidated financial statements including, but not limited to, the fair value of private placement warrants, the allowance for doubtful accounts, stock-based compensation, fair value of intangibles acquired in business combinations, loss contingencies, contingent consideration liabilities, asset impairments, and deferred taxes and amounts associated with the Tax Receivable Agreement.
Reclassifications
Certain prior period balances have been reclassified to conform to the current period presentation in the consolidated financial statements and the accompanying notes.
Significant Accounting Policies
There have been no material changes to our significant accounting policies as compared to the significant accounting policies described in Note 1. Business, Basis of Presentation and Summary of Significant Accounting Policies in our 2021 Form 10-K.
New Accounting Standards
Accounting Standards Not Yet Adopted
In February 2016, the FASB issued authoritative guidance ASC 842, Lease Accounting, regarding the accounting for leases, and has since issued subsequent updates to the initial guidance. The amended guidance requires the recognition of assets and liabilities for operating leases. The standard was initially effective for annual and interim reporting periods beginning after December 15, 2019. However, in November 2019, the FASB issued amended guidance, which defers for Emerging Growth Companies (“EGC”) the effective date for fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. The standard must be adopted using a modified retrospective transition. We plan to adopt the standard using the optional transition method whereby we would apply the new lease requirements through a cumulative-effect adjustment on the effective date of adoption. We plan to elect the package of practical expedients permitted under the transition guidance of the new standards, which allows us to not reassess whether any expired or existing contracts contain leases, allows us to carry forward the historical lease classification and permits us to exclude from our assessment initial direct costs for any existing leases. We will also make an accounting policy election to exclude leases with an initial term of twelve months or less from our transition adjustment. We will adopt this standard in the last fiscal quarter of 2022 and we expect the adoption will have a material impact on our consolidated financial statements and disclosures.
The Company qualifies as an “emerging growth company” and has elected to adhere to the extended transition period for complying with new or revised accounting standards under Section 102(b)(1) of the JOBS Act. This election allows the Company to delay the adoption of new or revised accounting standards that have different effective dates for public and private companies until those standards apply to private companies.
In June 2016, the FASB issued authoritative guidance ASC 326 Financial Instruments - Credit Losses, regarding the impairment model known as the current expected credit loss (“CECL”) model on accounting for credit losses on financial instruments, including trade receivables, and has since issued subsequent updates to the initial guidance. The amended guidance requires the application of a CECL model, which measures credit losses based on relevant information about past events, including historical experience, current conditions, and reasonable and supportable forecasts. The guidance requires adoption using a modified retrospective approach and is effective for emerging growth companies for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. We are currently evaluating the impact on our consolidated financial statements.
NOTE 2. REVENUE
Disaggregation of Revenue
The following tables present the disaggregation of revenue by reportable segment and type of service (in thousands):
| Three Months Ended September 30, 2022 | |||||||||||||||||||||||||||||
| Brand Direct | Marketplace | Technology Solutions | Intercompany eliminations | Total | |||||||||||||||||||||||||
| Net revenue: | |||||||||||||||||||||||||||||
| Customer acquisition | $ | 41,381 | $ | 53,230 | $ | — | $ | (8,059) | $ | 86,552 | |||||||||||||||||||
| Managed services | 937 | — | 1,076 | — | 2,013 | ||||||||||||||||||||||||
| Software services | — | — | 1,501 | — | 1,501 | ||||||||||||||||||||||||
| Total Net revenue | $ | 42,318 | $ | 53,230 | $ | 2,577 | $ | (8,059) | $ | 90,066 | |||||||||||||||||||
| Three Months Ended September 30, 2021 | |||||||||||||||||||||||||||||
| Brand Direct | Marketplace | Technology Solutions | Intercompany eliminations | Total | |||||||||||||||||||||||||
| Net revenue: | |||||||||||||||||||||||||||||
| Customer acquisition | $ | 63,332 | $ | 58,278 | $ | — | $ | (18,133) | $ | 103,477 | |||||||||||||||||||
| Managed services | 1,667 | — | 1,471 | — | 3,138 | ||||||||||||||||||||||||
| Software services | — | — | 784 | — | 784 | ||||||||||||||||||||||||
| Total Net revenue | $ | 64,999 | $ | 58,278 | $ | 2,255 | $ | (18,133) | $ | 107,399 | |||||||||||||||||||
| Nine Months Ended September 30, 2022 | |||||||||||||||||||||||||||||
| Brand Direct | Marketplace | Technology Solutions | Intercompany eliminations | Total | |||||||||||||||||||||||||
| Net revenue: | |||||||||||||||||||||||||||||
| Customer acquisition | $ | 144,123 | $ | 166,128 | $ | — | $ | (31,551) | $ | 278,700 | |||||||||||||||||||
| Managed services | 4,211 | — | 3,989 | — | 8,200 | ||||||||||||||||||||||||
| Software services | — | — | 3,472 | — | 3,472 | ||||||||||||||||||||||||
| Total Net revenue | $ | 148,334 | $ | 166,128 | $ | 7,461 | $ | (31,551) | $ | 290,372 | |||||||||||||||||||
| Nine Months Ended September 30, 2021 | |||||||||||||||||||||||||||||
| Brand Direct | Marketplace | Technology Solutions | Intercompany eliminations | Total | |||||||||||||||||||||||||
| Net revenue: | |||||||||||||||||||||||||||||
| Customer acquisition | $ | 174,341 | $ | 165,300 | $ | — | $ | (43,260) | $ | 296,381 | |||||||||||||||||||
| Managed services | 6,713 | — | 3,796 | — | 10,509 | ||||||||||||||||||||||||
| Software services | — | — | 2,391 | — | 2,391 | ||||||||||||||||||||||||
| Total Net revenue | $ | 181,054 | $ | 165,300 | $ | 6,187 | $ | (43,260) | $ | 309,281 | |||||||||||||||||||
Contract Balances
The Company’s contract liabilities result from payments received from clients in advance of revenue recognition as they precede the Company’s satisfaction of the associated performance obligation. If a customer pays consideration before the Company’s performance obligations are satisfied, such amounts are classified as deferred revenue on the unaudited consolidated balance sheets. As of September 30, 2022 and December 31, 2021, the balance of deferred revenue was $1.1 million and $1.8 million, respectively, and is recorded within “Accrued expenses and other current liabilities” on the unaudited consolidated balance sheets. We expect the majority of the deferred revenue balance at September 30, 2022 to be recognized as revenue during the following quarter.
For the three and nine months ended September 30, 2022, one customer accounted for approximately 27.9% and 23.0%, respectively, of our total revenues. For the three and nine months ended September 30, 2021, one customer accounted for approximately 19.3% and 14.9%, respectively, of our total revenues.
NOTE 3. REPORTABLE SEGMENTS
The Company’s operating segments are determined based on the financial information reviewed by its chief operating decision maker (“CODM”), and the basis upon which management makes resource allocation decisions and assesses the performance of the Company’s segments. The Company evaluates the operating performance of its segments based on financial measures such as net revenue, cost of revenue, and gross profit. Given the nature of the digital marketing solutions business, the amount of assets does not provide meaningful insight into the operating performance of the Company. As a result, the amount of the Company’s assets is not subject to segment allocation and total assets is not included within the disclosure of the Company’s segment financial information.
The following tables are a reconciliation of the operations of our segments to income from operations (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Net revenue | $ | 90,066 | $ | 107,399 | $ | 290,372 | $ | 309,281 | |||||||||||||||
| Brand Direct | 42,318 | 64,999 | 148,334 | 181,054 | |||||||||||||||||||
| Marketplace | 53,230 | 58,278 | 166,128 | 165,300 | |||||||||||||||||||
| Technology Solutions | 2,577 | 2,255 | 7,461 | 6,187 | |||||||||||||||||||
| Intercompany eliminations | (8,059) | (18,133) | (31,551) | (43,260) | |||||||||||||||||||
| Cost of revenue (exclusive of depreciation and amortization) | 66,378 | 77,063 | 211,997 | 218,304 | |||||||||||||||||||
| Brand Direct | 32,873 | 50,165 | 117,459 | 137,759 | |||||||||||||||||||
| Marketplace | 41,202 | 44,396 | 125,045 | 122,296 | |||||||||||||||||||
| Technology Solutions | 362 | 635 | 1,044 | 1,509 | |||||||||||||||||||
| Intercompany eliminations | (8,059) | (18,133) | (31,551) | (43,260) | |||||||||||||||||||
| Gross profit (exclusive of depreciation and amortization) | $ | 23,688 | $ | 30,336 | $ | 78,375 | $ | 90,977 | |||||||||||||||
| Brand Direct | 9,445 | 14,834 | 30,875 | 43,295 | |||||||||||||||||||
| Marketplace | 12,028 | 13,882 | 41,083 | 43,004 | |||||||||||||||||||
| Technology Solutions | 2,215 | 1,620 | 6,417 | 4,678 | |||||||||||||||||||
| Salaries and related costs | 11,668 | 12,449 | 38,612 | 34,426 | |||||||||||||||||||
| General and administrative expenses | 9,076 | 10,237 | 32,622 | 27,051 | |||||||||||||||||||
| Depreciation and amortization | 7,142 | 7,186 | 21,377 | 19,649 | |||||||||||||||||||
| Acquisition costs | 14 | 420 | 306 | 1,820 | |||||||||||||||||||
| Change in fair value of contingent consideration liabilities | (3) | (3,085) | 2,533 | (2,525) | |||||||||||||||||||
| (Loss) income from operations | $ | (4,209) | $ | 3,129 | $ | (17,075) | $ | 10,556 | |||||||||||||||
NOTE 4. GOODWILL AND INTANGIBLE ASSETS
Goodwill
Changes in the carrying value of goodwill, by reporting segment, were as follows (in thousands):
| Brand Direct | Marketplace | Technology Solutions | Total | |||||||||||||||||||||||
| Balance, December 31, 2021 | $ | 18,376 | $ | 54,554 | $ | 3,628 | $ | 76,558 | ||||||||||||||||||
| Additions (Note 6) | — | — | 716 | 716 | ||||||||||||||||||||||
| Miscellaneous changes | (55) | — | — | (55) | ||||||||||||||||||||||
| Balance, September 30, 2022 | $ | 18,321 | $ | 54,554 | $ | 4,344 | $ | 77,219 | ||||||||||||||||||
The carrying amount of goodwill for all reporting units had no accumulated impairments as of September 30, 2022 and December 31, 2021.
Intangible assets, net
Finite-lived intangible assets, net consisted of the following (in thousands):
| September 30, 2022 | December 31, 2021 | ||||||||||||||||||||||||||||||||||||||||
| Amortization Period (Years) | Gross | Accumulated Amortization | Net | Gross | Accumulated Amortization | Net | |||||||||||||||||||||||||||||||||||
| Technology | 3 to 5 | $ | 54,336 | $ | (37,149) | $ | 17,187 | $ | 51,946 | $ | (29,929) | $ | 22,017 | ||||||||||||||||||||||||||||
| Customer relationships | 2 to 9 | 49,423 | (19,209) | 30,214 | 49,273 | (13,076) | 36,197 | ||||||||||||||||||||||||||||||||||
| Brand | 1 to 7 | 12,168 | (5,821) | 6,347 | 12,109 | (4,575) | 7,534 | ||||||||||||||||||||||||||||||||||
| Non-competition agreements | 3 | 1,898 | (1,821) | 77 | 1,898 | (1,418) | 480 | ||||||||||||||||||||||||||||||||||
| Total | $ | 117,825 | $ | (64,000) | $ | 53,825 | $ | 115,226 | $ | (48,998) | $ | 66,228 | |||||||||||||||||||||||||||||
The weighted average amortization period for intangible assets is 4 years in total, and by category is 4 years for technology, 6 years for customer relationships, 4 years for brand, 3 years for non-competition agreements.
Amortization expense relating to intangible assets subject to amortization for each of the next five years and thereafter is estimated to be as follows (in thousands):
| 2022 | 2023 | 2024 | 2025 | 2026 | Thereafter | ||||||||||||||||||||||||||||||
| Amortization expense | $ | 4,719 | $ | 16,890 | $ | 14,311 | $ | 7,114 | $ | 6,368 | $ | 4,423 | |||||||||||||||||||||||
Amortization expense for finite-lived intangible assets is recorded on an accelerated straight-line basis. Amortization expense related to finite-lived intangible assets was $5.0 million and $15.0 million for the three and nine months ended September 30, 2022, respectively, and $5.5 million and $15.4 million for the three and nine months ended September 30, 2021, respectively.
NOTE 5. DEBT
The following table presents the components of outstanding debt (in thousands):
| September 30, 2022 | December 31, 2021 | ||||||||||
| Term loan | $ | 222,188 | $ | 223,875 | |||||||
Less: Unamortized debt issuance costs (1) | (5,100) | (6,120) | |||||||||
| Debt, net | 217,088 | 217,755 | |||||||||
| Less: Current portion of long-term debt | (2,250) | (2,250) | |||||||||
| Long-term debt | $ | 214,838 | $ | 215,505 | |||||||
__________
(1) Includes net debt issuance discount and other costs.
On May 25, 2021, Digital Media Solutions, LLC (“DMS LLC”), as borrower, and DMSH, each of which is a subsidiary of DMS, entered into a five-year $275 million senior secured credit facility (the “Credit Facility”), with a syndicate of lenders (“Lenders”), arranged by Truist Bank and Fifth Third Bank, as joint lead arrangers, and Truist Bank, as administrative agent. The Credit Facility is guaranteed by, and secured by substantially all of the assets of, DMS LLC, DMSH LLC and their material subsidiaries, subject to customary exceptions. Pursuant to the Credit Facility, the Lenders provided DMS LLC with senior secured term loans consisting of a senior secured term loan with an aggregate principal amount of $225 million (the “Term Loan”) and a $50 million senior secured revolving credit facility (the “Revolving Facility”).
The Term Loan, which was issued at an original issue discount of 1.80% or $4.2 million, is subject to payment of 1.0% of the original aggregate principal amount per annum paid quarterly, with a bullet payment at maturity. The Term Loan will mature, and the revolving credit commitments under the Revolving Facility will terminate, on May 25, 2026, when any outstanding balances will become due.
Borrowings under the Revolving Facility bear interest, at our option, at either (i) adjusted LIBOR plus 4.25% or (ii) a base rate (which is equal to the highest of (a) the administrative agent’s prime rate, (b) the federal funds rate, as in effect from time to time, plus 0.50%, (c) one-month LIBOR plus 1.00%, and (d) 1.75% (the “Base Rate”)), plus 3.25%. The Term Loan bears interest at our option, at either (i) adjusted LIBOR plus 5.00% or (ii) the Base Rate plus 4.00%. Under the Revolving Facility, DMS LLC pays a 0.50% per annum commitment fee in arrears on the undrawn portion of the revolving commitments. Since May 25, 2021 our interest rate is based on LIBOR plus 5.00%. For the three and nine months ended September 30, 2022, the effective interest rate was 7.25%. On October 4, 2022, the Company drew $5.0 million on the Revolving Facility.
The initial $4.2 million debt discount and $3.5 million debt issuance cost related to the Term Loan and Revolving Facility is being amortized over the term of the loan using the effective interest method. As of September 30, 2022 the Term Loan debt discount and debt issuance cost classified as debt had a remaining unamortized balance of $3.1 million and $2.0 million, respectively. As of December 31, 2021, the Term Loan debt discount and debt issuance cost included in the carrying value of the debt had a remaining unamortized balance of $3.7 million and $2.4 million, respectively. At September 30, 2022 and December 31, 2021, the unamortized debt issuance cost of $0.6 million and $0.8 million, respectively, associated with the undrawn Revolving Facility is classified and amortized as “Other assets” within consolidated balance sheets.
Upon the closing of the Credit Facility, the credit agreement dated as of July 3, 2018, by and among DMS LLC, DMSH, each of their subsidiaries party thereto, various financial institutions party thereto and Monroe Capital Management Advisors, LLC, as administrative agent and lead arranger, and all outstanding amounts thereunder that was previously outstanding with an aggregate principal amount of $210 million was extinguished, and the $15 million revolving credit facility was closed.
As of September 30, 2022 and December 31, 2021, respectively, we were in material compliance with all financial covenants. If the Company fails to comply with its financial covenants, an event of default under the Credit Facility would be triggered and the Company’s obligations under the Credit Facility may be accelerated. Management is monitoring the Company’s compliance and future ability to comply with all financial covenants, which management estimates may not be met within one year of issuance of these consolidated financial statements. Management is prepared to take certain steps to ensure compliance, including requesting waivers from or entering into amendments with the Lenders.
Debt Maturity Schedule
The scheduled maturities of our total debt are estimated as follows at September 30, 2022 (in thousands):
| 2022 | $ | 563 | ||||||
| 2023 | 2,250 | |||||||
| 2024 | 2,250 | |||||||
| 2025 | 2,250 | |||||||
| 2026 | 214,875 | |||||||
| Total debt | $ | 222,188 | ||||||
NOTE 6. ACQUISITIONS
Traverse
On May 10, 2022, the Company acquired Traverse Data, Inc. (“Traverse”). Traverse is a marketing and advertising technology company. The Company paid cash consideration of $2.5 million upon closing of the transaction. The transaction also includes up to $0.5 million in contingent consideration, subject to the achievement of certain milestones, which is payable in cash 15 months after the acquisition date.
During the measurement period (which is the period required to obtain all necessary information that existed at the acquisition date, or to conclude that such information is unavailable, not to exceed one year), additional assets or liabilities may be recognized, or there could be changes to the amounts of assets or liabilities previously recognized on a preliminary basis, if new information is obtained about facts and circumstances that existed as of the acquisition date that, if known, would have resulted in the recognition of these assets or liabilities as of that date.
Determining the fair value of assets acquired and liabilities assumed requires management's judgment and involves the use of significant estimates, including projections of future cash inflows and outflows, discount rates, asset lives and market multiples. As the result of the completed valuation of the assets acquired (including intangibles) and liabilities assumed, as well as the contingent consideration liabilities, as of the acquisition dates, the following adjustments were recorded related to further analysis of the forecast (for example, items that occurring in the pre-acquisition period that should have been factored into the forecast as of the acquisition date) and refinements to the significant assumptions in the valuation models used to value the intangibles and contingent consideration liabilities. As a result, we have made adjustment to the initial and subsequent fair value
of our intangible asset, goodwill, contingent consideration and working capital. The impact of these adjustments are as follows (in thousands):
| Traverse | Acquisition Date Fair Value | Fair Value Mark-to-Market changes | Revised Acquisition Date Fair Value | |||||||||||||||||
| Goodwill | $ | 444 | $ | (162) | $ | 282 | ||||||||||||||
| Intangible Assets: | ||||||||||||||||||||
| Technology | $ | 2,500 | $ | (10) | $ | 2,490 | ||||||||||||||
| Customer relationships | $ | 50 | $ | — | $ | 50 | ||||||||||||||
| Brand | $ | 59 | $ | — | $ | 59 | ||||||||||||||
| Non-competition agreements | $ | 3 | $ | (3) | $ | — | ||||||||||||||
| Contingent consideration liability | $ | 428 | $ | 10 | $ | 438 | ||||||||||||||
| Working capital accounts | $ | (49) | $ | 333 | $ | 284 | ||||||||||||||
The Company primarily used Income Approach methodologies, which represents Level 3 fair value measurements, to assess the components of its purchase price allocation. The acquisition was accounted for as a business combination, whereby the excess of the fair value of the business over the fair value of identifiable net assets was allocated to goodwill. The results of operations of the acquired business have been included in the Company’s results of operations since the acquisition date of May 10, 2022. Under Accounting Standards Codification 805 (“ASC 805”), an acquirer must recognize any assets acquired and liabilities assumed at the acquisition date, measured at fair value as of that date. Assets meeting the identification criteria included tangible assets, such as real and personal property, and intangible assets. Identified intangible assets included technology, brand, customer relationships and non-competition agreements. Fair value of the technology was determined using the Multi Period Excess Earnings Approach; fair value of the customer relationships was determined using the Excess Earnings Method utilizing distributor inputs; fair value of the brand was determined using the Relief from Royalty Method; and fair value of the non-competition agreements was determined using the Discounted Cash Flow Approach.
The goodwill related to this transaction reflects the synergies expected from combining the operations of Traverse and is included in the Technology Solutions reportable segment. Goodwill is expected to be deductible for tax purposes. Intangible assets primarily consist of technology, brand and customer relationships with an estimated useful life of five years for technology, three years for brand and five years for customer relationships.
Crisp Results
On April 1, 2021, the Company completed a transaction to purchase the assets of Crisp Marketing, LLC (“Crisp Results” or “Crisp”). Crisp Results is a digital performance advertising company that connects consumers with brands within the insurance sector, with primary focus on the Medicare insurance industry. Crisp Results is known for providing predictable, reliable, flexible and scalable customer acquisition solutions, supporting large brands with a process that combines data, design, technology and innovation.
The Company paid consideration of $40.0 million upon closing of the transaction, consisting of $20.0 million cash and 1.6 million Class A Common Stock valued at $20.0 million. The transaction also included up to $10.0 million in contingent consideration, subject to the achievement of certain milestones, which can be paid in cash or Class A Common Stock at the election of the Company, and a $5.0 million deferred payment, to be paid 18 months after the acquisition date.
Determining the fair value of assets acquired and liabilities assumed requires management's judgment and involves the use of significant estimates, including projections of future cash inflows and outflows, discount rates, asset lives and market multiples. As the result of the completed valuation of the assets acquired (including intangibles) and liabilities assumed, as well as the contingent consideration liabilities, as of the acquisition dates, adjustments were recorded related to further analysis of the forecast (for example, items that occurring in the pre-acquisition period that should have been factored into the forecast as of the acquisition date) and refinements to the significant assumptions in the valuation models used to value the intangibles and contingent consideration liabilities. As a result, we made adjustment to the initial and subsequent fair value of the intangible assets, goodwill, contingent consideration and working capital. Since December 31, 2021, there were no measurement period adjustments identified and recorded. Accounting for the acquisition was completed on March 31, 2022.
As of April 1, 2021, the acquisition date, the fair value of the contingent consideration was $5.2 million. During the nine months ended September 30, 2022, the fair value of the contingent consideration increased $2.6 million due to accretion to $10.0 million from December 31, 2021. As of April 1, 2022, the contingent consideration milestones were met, and the
Company paid it on July 1, 2022 in the form of 2.99 million unregistered shares of Class A Common Stock, priced at $3.3455, the average closing price of the Class A common stock during the trading-day period ended March 31, 2022.
As of April 1, 2021, the acquisition date, the fair value of the deferred consideration was $4.6 million. During the nine months ended September 30, 2022, the present value of the deferred consideration increased $0.2 million due to accretion to $5.0 million from December 31, 2021. The $5.0 million deferred consideration became due on October 1, 2022, which the Company paid on October 4, 2022.
The Company primarily used Income Approach methodologies, which represents Level 3 fair value measurements, to assess the components of its purchase price allocation. The acquisition was accounted for as a business combination, whereby the excess of the fair value of the business over the fair value of identifiable net assets was allocated to goodwill. The results of operations of the acquired business have been included in the Company’s results of operations since the acquisition date of April 1, 2021. Under ASC 805, an acquirer must recognize any assets acquired and liabilities assumed at the acquisition date, measured at fair value as of that date. Assets meeting the identification criteria included tangible assets, such as real and personal property, and intangible assets. Identified intangible assets included the brand and customer relationships of the acquired business. Fair value of the Crisp Results brand was determined using the Relief from Royalty Method, and the fair value of customer relationships was determined using the Multi Period Excess Earnings Method.
The goodwill related to this transaction reflects the workforce and synergies expected from combining the operations of Crisp Results and is included in the Marketplace reportable segment. Goodwill is expected to be deductible for tax purposes. Intangible assets primarily consist of brand and customer relationships with an estimated useful life of seven years for brand and six years for customer relationships.
Aimtell, Aramis and PushPros
On February 1, 2021, the Company acquired Aimtell, Inc. (“Aimtell”), PushPros, Inc. (“PushPros”) and Aramis Interactive (“Aramis”, and together with Aimtell and PushPros, “AAP”). Aimtell and PushPros are leading providers of technology-enabled digital performance advertising solutions that connect consumers and advertisers within the home, auto, health and life insurance verticals. Aramis is a network of owned-and-operated websites that leverages the Aimtell and PushPros technologies and relationships.
The Company paid consideration of $20.0 million upon closing of the transaction, consisting of $5.0 million in cash and approximately 1.29 million shares of Class A Common Stock valued at $15.0 million. The transaction also included up to $15.0 million in contingent consideration to be earned over the three years following the acquisition, subject to the achievement of certain milestones. The contingent consideration can be paid in cash or Class A Common Stock at the election of the Company.
Determining the fair value of assets acquired and liabilities assumed requires management's judgment and involves the use of significant estimates, including projections of future cash inflows and outflows, discount rates, asset lives and market multiples. As the result of the completed valuation of the assets acquired (including intangibles) and liabilities assumed, as well as the contingent consideration liabilities, as of the acquisition date, we recorded adjustments during the year ended December 31, 2021 related to further analysis of the forecast (for example, items that occurring in the pre-acquisition period that should have been factored into the forecast as of the acquisition date) and refinements to the significant assumptions in the valuation models used to value the intangibles and contingent consideration liabilities. As a result, we made adjustments to the initial and subsequent fair value of the intangible assets, goodwill, contingent consideration and working capital. Since December 31, 2021, there was a $0.1 million measurement period adjustment identified and recorded in Goodwill during the period ended March 31, 2022. Accounting for the acquisition was completed on March 31, 2022.
As of February 1, 2021, the acquisition date, the fair value of the contingent consideration earnout was $2.1 million. As of September 30, 2022, the contingent consideration earnout fair value total changed to $1.0 million, decreasing since December 31, 2021. The contingent consideration can be paid in cash or DMS Class A Common Stock at the election of the Company.
The Company primarily used Income Approach methodologies, which represents Level 3 fair value measurements, to assess the components of its purchase price allocation. The acquisition was accounted for as a business combination, whereby the excess of the fair value of the business over the fair value of identifiable net assets was allocated to goodwill. The results of operations of the acquired businesses have been included in the Company’s results of operations since the acquisition date of February 1, 2021. Under ASC 805, an acquirer must recognize any assets acquired and liabilities assumed at the acquisition date, measured at fair value as of that date. Assets meeting the identification criteria included tangible assets, such as real and personal property, and intangible assets. Identified intangible assets included the brand, technology, customer relationships and non-competition agreements of the acquired business. Fair value of the Aimtell and PushPros technology was determined using the
Multi Period Excess Earnings Method; fair value of the AAP non-compete agreements was determined using a Discounted Cash Flow Approach; fair value of the AAP brand was determined using a Relief from Royalty Method; fair value of the Aramis customer relationships was determined using the Multi Period Excess Earnings Method; and fair value of the Aimtell and PushPros customer relationships was determined using the excess earnings method with distributor inputs.
The goodwill related to this transaction reflects the workforce and synergies expected from combining the operations of AAP and is included in the Brand Direct reportable segment. Goodwill is expected to be deductible for Aramis and PushPros for tax purposes. Intangible assets primarily consist of technology and customer relationships.
The acquisition date fair value of assets acquired and liabilities assumed from the AAP, Crisp Results and Traverse acquisitions consist of the following (in thousands):
| Expected Useful Life | AAP | Crisp Results | Traverse | |||||||||||||||||||||||
| 2021 | 2021 | 2022 | ||||||||||||||||||||||||
| Cash | $ | — | $ | — | $ | 232 | ||||||||||||||||||||
| Goodwill | 9,761 | 21,894 | 282 | |||||||||||||||||||||||
| Technology | 4 to 5 | 3,900 | — | 2,490 | ||||||||||||||||||||||
| Customer relationships | 4 to 6 | 7,690 | 19,600 | 50 | ||||||||||||||||||||||
| Accounts receivable, net | 3,100 | 2,610 | 276 | |||||||||||||||||||||||
| Brand | 1 to 7 | 208 | 7,400 | 59 | ||||||||||||||||||||||
| Non-competitive agreements | 1 to 3 | 83 | — | — | ||||||||||||||||||||||
| Property and equipment | 3 to 5 | 250 | 220 | — | ||||||||||||||||||||||
| Accounts payable | (2,887) | (1,593) | (232) | |||||||||||||||||||||||
Other assets acquired and liabilities assumed, net (1) | 740 | 1 | 7 | |||||||||||||||||||||||
| Net assets and liabilities acquired | $ | 22,845 | $ | 50,132 | $ | 3,164 | ||||||||||||||||||||
(1) Other assets acquired and liabilities assumed, net includes prepaids and other current assets, partially offset by other current liabilities (e.g., Travel and expense payables, payroll liabilities, tax liabilities, and transition services payable).
The weighted average amortization period for AAP acquisition technology is 4 years, customer relationships is 4.1 years, brand is 2.1 years and non-compete agreements is 3 years. The weighted average amortization period for Crisp Results acquisition customer relationships is 6 years, and brand is 7 years. The weighted average amortization period for Traverse acquisition technology is 5 years, customer relationships is 5 years, brand is 3 years and non-compete agreements is 1 year. In total, the weighted average amortization period for AAP is 4 years, Crisp Results is 5.6 years and Traverse is 5 years.
The following schedule represents the amounts of net revenue and net loss from operations related to Traverse, AAP and Crisp Results acquisitions which have been included in the unaudited consolidated statements of operations for the periods indicated subsequent to the acquisition date in the period of acquisition (in thousands):
| Three Months Ended September 30, 2022 | Nine Months Ended September 30, 2022 | ||||||||||
| Traverse | Traverse | ||||||||||
| Net revenue | $ | 709 | $ | 1,069 | |||||||
| Net income from operations | $ | 229 | $ | 299 | |||||||
| Three Months Ended September 30, 2021 | Nine Months Ended September 30, 2021 | ||||||||||||||||||||||
| AAP | Crisp Results | AAP | Crisp Results | ||||||||||||||||||||
| Net revenue | $ | 5,976 | $ | 6,407 | $ | 16,051 | $ | 13,374 | |||||||||||||||
| Net income (loss) from operations | $ | 94 | $ | 734 | $ | (526) | $ | 579 | |||||||||||||||
Pro Forma Information
The following unaudited pro forma financial information represents the consolidated financial information as if the acquisitions had been included in our consolidated results beginning on the first day of the fiscal year prior to their respective acquisition dates (in thousands):
| Three Months Ended September 30, 2021 | |||||||||||||||||||||||||||||
| DMS | AAP | Crisp Results | Traverse | Pro Forma | |||||||||||||||||||||||||
| Net revenue | $ | 107,399 | $ | — | $ | — | $ | 664 | $ | 108,063 | |||||||||||||||||||
| Net income from operations | $ | 3,129 | $ | — | $ | — | $ | 38 | $ | 3,167 | |||||||||||||||||||
| Nine Months Ended September 30, 2022 | |||||||||||||||||
| DMS | Traverse | Pro Forma | |||||||||||||||
| Net revenue | $ | 290,372 | $ | 999 | $ | 291,371 | |||||||||||
| Net loss from operations | $ | (17,075) | $ | (417) | $ | (17,492) | |||||||||||
| Nine Months Ended September 30, 2021 | |||||||||||||||||||||||||||||
| DMS | AAP | Crisp Results | Traverse | Pro Forma | |||||||||||||||||||||||||
| Net revenue | $ | 309,281 | $ | 2,465 | $ | 8,284 | $ | 1,917 | $ | 321,947 | |||||||||||||||||||
| Net income (loss) from operations | $ | 10,556 | $ | 457 | $ | 2,296 | $ | (29) | $ | 13,280 | |||||||||||||||||||
The pro forma results do not reflect any cost savings, operating synergies or revenue enhancements that the combined company may achieve as a result of the acquisitions; the costs to combine the companies’ operations; or the costs necessary to achieve these costs savings, operating synergies and revenue enhancements. The pro forma results do not necessarily reflect the actual results of operations of the combined companies under our ownership and operation.
NOTE 7. RESTRUCTURING COSTS
Restructuring costs include expenses associated with the Company’s effort to continually improve operational efficiency and reposition its assets to remain competitive on a national basis. The Company leases office space in various locations within the United States and Canada. The leases entered into by the Company consist of both long-term and short-term leases.
Termination of office lease and other related costs include lease and termination of fixed assets, employee training, relocation and facility costs. These costs are recorded in General and administrative expenses in the unaudited consolidated statements of operations.
Since the year ended December 31, 2020, due to the economic environment caused by the COVID-19 pandemic, the Company entered into negotiations with landlords to terminate certain lease agreements, which reduced cash needs by approximately $1.9 million over the remaining life of the original leases through April 30, 2025. As of September 30, 2022, the Company has four leased properties, representing 55,798 square feet of office space located in the United States. During the third quarter of 2022, the Company entered into an agreement with a third-party to sublease a substantial portion of one of the Company’s leased properties. Income from the subleased property is used to offset the Company’s restructuring costs.
Valuation adjustments related to the reserve and lease accretion are recorded in General and administrative expenses in the consolidated statements of operations. The change in liability for the restructuring costs reserve for the three and nine months ended September 30, 2022 and 2021, respectively, was as follows (in thousands):
| Three Months Ended September 30, 2022 | Three Months Ended September 30, 2021 | ||||||||||
| Beginning balance | $ | 2,498 | $ | 2,957 | |||||||
| Valuation adjustments | (73) | (300) | |||||||||
| Lease payments | (242) | (333) | |||||||||
| Lease accretion | 68 | 45 | |||||||||
| Ending balance | $ | 2,251 | $ | 2,369 | |||||||
| Current portion - Accrued expenses and other current liabilities | $ | 830 | $ | 1,200 | |||||||
| Long-term portion - Other non-current liabilities | $ | 1,421 | $ | 1,169 | |||||||
| Nine Months Ended September 30, 2022 | Nine Months Ended September 30, 2021 | ||||||||||
| Beginning balance | $ | 2,516 | $ | 3,653 | |||||||
| Valuation adjustments | 397 | (219) | |||||||||
| Lease payments | (826) | (1,203) | |||||||||
| Lease accretion | 164 | 138 | |||||||||
| Ending balance | $ | 2,251 | $ | 2,369 | |||||||
| Current portion - Accrued expenses and other current liabilities | $ | 830 | $ | 1,200 | |||||||
| Long-term portion - Other non-current liabilities | $ | 1,421 | $ | 1,169 | |||||||
NOTE 8. FAIR VALUE MEASUREMENTS
The Company utilizes fair value measurements to record fair value adjustments to certain assets and liabilities and to determine fair value disclosures. The carrying amounts of our cash and cash equivalents, accounts receivable, income taxes receivable, accounts payable, accrued expenses and income taxes payable, approximate fair value because of the short-term maturity of those instruments.
Private Placement Warrants
We record the fair value of the Private Placement Warrants as a liability in our consolidated balance sheet as of September 30, 2022 and 2021, respectively. The fair value of the Private Placement Warrants is considered a Level 3 valuation and is determined using the Black-Scholes-Merton valuation model. Changes in fair value of the Private Placement Warrants are presented under Change in the fair value of warrant liabilities on the Income Statement. As of September 30, 2022, the Company has approximately 4.0 million Private Placement Warrants outstanding.
The significant assumptions were as follows:
| September 30, 2022 | ||||||||
| Private Placement Warrants Fair Value Per Share | $ | 0.37 | ||||||
| Private Placement Warrant valuation inputs: | ||||||||
| Stock price - DMS Inc. Class A Common Stock | $ | 1.92 | ||||||
| Remaining contractual term in years | 2.79 | |||||||
| Estimated volatility | 90.0 | % | ||||||
| Dividend yield | 0.0 | % | ||||||
| Risk free interest rate | 4.20 | % | ||||||
Contingent consideration payable related to acquisitions
The fair value of the contingent considerations payable for the AAP and Traverse acquisitions (described in Note 6. Acquisitions) were determined using a Monte Carlo fair value analysis and a scenario-based methodology, respectively, based on estimated performance and the probability of achieving certain targets. As certain inputs are not observable in the market, the contingent consideration is classified as a Level 3 instrument. Changes in fair value of contingent consideration are presented under “Change in fair value of contingent consideration liabilities” on the statement of operations.
The contingent consideration payable for the Crisp acquisition was finalized on April 1, 2022, the end of the earnout period. As the full target was met, the payment was made on July 1, 2022 in the form of Class A Common Stock. (See Note 6. Acquisitions).
The following table presents the contingent consideration assumptions.
| Aimtell / PushPros | ||||||||
| Revenue Volatility | 25 | % | ||||||
| Iteration (actual) | 100,000 | |||||||
| Risk adjustment discount rate | 10.25 | % | ||||||
| Risk free / Credit risk | 12.75 | % | ||||||
| Days gap from period end to payment | 90 | |||||||
| Aramis | ||||||||
| CYE2022 Earnout Successful Probability | 99.0 | % | ||||||
| Iteration (actual) | 100,000 | |||||||
| Risk free / Credit risk | 12.75 | % | ||||||
| Days gap from period end to payment | 90 | |||||||
| Traverse | ||||||||
| CYE2023 Earnout Successful Probability | 95.0 | % | ||||||
| Risk free / Credit risk | 12.75 | % | ||||||
| Days gap from period end to payment | 90 | |||||||
The following table presents assets and liabilities measured at fair value on a recurrent basis (in thousands):
| September 30, 2022 | ||||||||||||||||||||||||||||||||
| Category | Balance Sheet Location | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||||
| Liabilities: | ||||||||||||||||||||||||||||||||
| Private Placement Warrant liabilities | Total liabilities | $ | — | $ | — | $ | 1,480 | $ | 1,480 | |||||||||||||||||||||||
| Contingent consideration - Aramis | Contingent consideration payable - current | — | — | 933 | 933 | |||||||||||||||||||||||||||
| Contingent consideration - Traverse | Contingent consideration payable - current | — | — | 438 | 438 | |||||||||||||||||||||||||||
| Contingent consideration - Aimtell/PushPros | Contingent consideration payable - non-current | — | — | 31 | 31 | |||||||||||||||||||||||||||
| Total | $ | — | $ | — | $ | 2,882 | $ | 2,882 | ||||||||||||||||||||||||
The following table represents the change in the warrant liability and contingent consideration (in thousands):
| Private Placement Warrants | Contingent Consideration | |||||||||||||
| Balance, July 1, 2022 | $ | 480 | $ | 11,403 | ||||||||||
| Additions | — | 2 | ||||||||||||
| Changes in fair value | 1,000 | (3) | ||||||||||||
| Settlements | — | (10,000) | ||||||||||||
| Balance, September 30, 2022 | $ | 1,480 | 1,402 | |||||||||||
| Private Placement Warrants | Contingent Consideration | |||||||||||||
| Balance, December 31, 2021 | $ | 3,960 | $ | 8,439 | ||||||||||
| Additions | — | 430 | ||||||||||||
| Changes in fair value | (2,480) | 2,533 | ||||||||||||
| Settlements | — | (10,000) | ||||||||||||
| Balance, September 30, 2022 | $ | 1,480 | $ | 1,402 | ||||||||||
NOTE 9. EMPLOYEE AND DIRECTOR INCENTIVE PLANS
2020 Omnibus Incentive Plan
On July 15, 2020, Leo’s shareholders approved the 2020 Omnibus Incentive Plan (the “2020 Plan”). The 2020 Plan allows for the issuance and repurchase of stock options, stock appreciation rights, stock awards (including restricted stock awards (“RSAs”) and Restricted Stock Units (“RSUs”)) and other stock-based awards. Directors, officers and employees, as well as others performing independent consulting or advisory services for the Company or its affiliates, are eligible for grants under the 2020 Plan. The aggregate number of shares reserved under the 2020 Plan is approximately 11.6 million. The 2020 Plan terminates on June 24, 2030. The related costs were approximately $5.3 million and $4.0 million for the nine months ended September 30, 2022 and 2021, respectively, and are included in “Salaries and related costs” within the Consolidated Statement of Operations. Fair value of stock-based compensation is based on the closing trading price of the Company’s stock on the grant date.
Restricted Stock Units
On April 12, 2022, the Board voted to award 762,000 RSUs consisting of 381,406 performance-based vesting RSUs (“PRSUs”) and 381,406 time-based vesting RSUs (“TRSUs”) to executive management and certain key employees under the 2020 Plan. On July 1, 2022, the Board voted to award 326,000 RSUs consisting of 163,000 PRSUs and 163,000 TRSUs to executive management under the 2020 Plan. The TRSU and PRSUs vest one-fourth each year based on four years of continuous service starting with January 1, 2022 through January 1, 2026.
Vesting of the PRSUs are also subject to certain performance metrics of the Company, which the Company re-evaluates the probability of achievement on a quarterly basis. The TRSU’s related stock-based compensation expense is recognized on a straight-line basis over the vesting period. The PRSU awards’ expense is recognized on an accelerated basis over the vesting period.
On August 4, 2022, the Board voted to award an aggregate of 52,545 RSUs to the Company’s non-employee directors under the 2020 Plan. The RSUs will vest on the date of the annual shareholder’s meeting or on the anniversary of the award, whichever occurs first, and the related stock-based compensation expense is recognized on a straight-line basis over the vesting period.
NOTE 10. INCOME TAXES
As a result of the Business Combination, the Company consists of DMS Inc. and its wholly-owned subsidiary, Blocker, which owns 60.8% of equity interests in DMSH. DMSH is treated as a partnership for purposes of U.S. federal and certain state and local income tax. As a U.S. partnership, generally DMSH will not be subject to corporate income taxes (except with respect to UE, as described below). Instead, each of the ultimate partners (including DMS Inc.) are taxed on their proportionate share of DMSH taxable income.
While the Company consolidates DMSH for financial reporting purposes, the Company will only be taxed on its allocable share of future earnings (i.e. those earnings not attributed to the non-controlling interests, which continue to be taxed on their own allocable share of future earnings of DMSH). The Company’s income tax expense is attributable to the allocable share of earnings from DMSH, a portion of activities of DMSH that are subject to Canadian income tax, and the activities of UE and Traverse, wholly-owned U.S. corporate subsidiaries of DMSH, which is subject to U.S. federal and state and local income taxes. The income tax burden on the earnings allocated to the non-controlling interests is not reported by the Company in its consolidated financial statements under GAAP. As a result, the Company’s effective tax rate is expected to differ materially from the statutory rate.
The Company’s tax provision or benefit from income taxes for interim periods is determined using an estimate of its annual effective tax rate, adjusted for discrete items, if any. Each quarter the Company updates its estimate of the annual effective tax rate and makes a year-to-date adjustment to the provision. The Company recorded income tax expense of $0.46 million and $0.82 million for the three and nine months ended September 30, 2022, respectively. The blended effective tax rate for the three and nine months ended September 30, 2022 was 4.8% and 3.1%, respectively, which varies from our statutory U.S. tax rate due to taxable income or loss that is allocated to the non-controlling interest and impact of the valuation allowance on DMS, Inc. The Company recorded $0.4 million and $1.5 million income tax expense for the three and nine months ended September 30, 2021, respectively. The blended effective tax rate for the three and nine months ended September 30, 2021 was 6.6% and 13.1%, respectively, which varies from our statutory U.S. tax rate due to taxable income or loss that is allocated to the non-controlling interest.
Tax Receivable Agreement
In conjunction with the Business Combination, DMS Inc. and Blocker also entered into a Tax Receivable Agreement (“TRA”) with the Sellers. Pursuant to the Tax Receivable Agreement, DMS Inc. is required to pay the Sellers (i) 85% of the amount of savings, if any, in U.S. federal, state and local income tax that DMS Inc. and Blocker actually realize as a result of (A) certain existing tax attributes of Blocker acquired in the Business Combination, and (B) increases in Blocker’s allocable share of the tax basis of the assets of DMS and certain other tax benefits related to the payment of the cash consideration pursuant to the Business Combination Agreement and any redemptions or exchanges of DMS Units for cash or Class A Common Stock after the Business Combination and (ii) 100% of certain refunds of pre-Closing taxes of DMSH and Blocker received during a taxable year beginning within (2) years after the Closing. All such payments to the Sellers are the obligation of DMS Inc., and not that of DMSH.
As of September 30, 2022 and December 31, 2021, the Company recorded a full valuation allowance on our deferred tax asset (“DTA”) related to the TRA along with the entire DTA inventory at DMS, Inc. and Blocker. At September 30, 2022, the remaining current portion of Tax Receivable Agreement liability of $1.2 million is attributable to carryback claims. We will continue to evaluate the positive and negative evidence in determining the realizability of the Company’s DTAs.
NOTE 11. EARNINGS PER SHARE
Basic earnings per share of Class A Common Stock is computed by dividing net income attributable to DMS Inc. by the weighted-average number of shares of Class A Common Stock outstanding during the period. Diluted earnings per share of Class A Common Stock is computed by dividing net income attributable to DMS Inc. adjusted for the income effects of dilutive instruments by the weighted-average number of shares of Class A Common Stock outstanding adjusted to give effect to potentially dilutive elements.
The following table sets forth reconciliations of the numerators and denominators used to compute basic and diluted earnings (loss) per share of Class A Common Stock:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Numerator: | |||||||||||||||||||||||
| Net (loss) income | $ | (10,121) | $ | 5,394 | $ | (27,365) | $ | 10,121 | |||||||||||||||
| Net (loss) income attributable to non-controlling interest | (4,010) | $ | 1,858 | (10,765) | 4,217 | ||||||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - basic | $ | (6,111) | $ | 3,536 | $ | (16,600) | $ | 5,904 | |||||||||||||||
| Add: Income effects of Class B convertible common stock | $ | (4,010) | $ | 1,858 | $ | — | $ | 4,217 | |||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - diluted | $ | (10,121) | $ | 5,394 | $ | (16,600) | $ | 10,121 | |||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted average shares - basic | 39,961 | 36,511 | 37,644 | 35,050 | |||||||||||||||||||
| Add: dilutive effects of Class B convertible common stock | 25,699 | 25,853 | — | 25,853 | |||||||||||||||||||
| Add: dilutive effects of employee equity awards | — | 267 | — | 515 | |||||||||||||||||||
| Add: dilutive effects of public warrants | — | — | — | 168 | |||||||||||||||||||
| Add: dilutive effects of deferred consideration | — | 690 | — | 402 | |||||||||||||||||||
| Weighted average shares - diluted | 65,660 | 63,321 | 37,644 | 61,988 | |||||||||||||||||||
| Net earnings (loss) per common share: | |||||||||||||||||||||||
| Basic | $ | (0.15) | $ | 0.10 | $ | (0.44) | $ | 0.17 | |||||||||||||||
| Diluted | $ | (0.15) | $ | 0.09 | $ | (0.44) | $ | 0.16 | |||||||||||||||
Shares of the Company’s Class B convertible common stock do not participate in the earnings or losses of the Company and are therefore not participating securities. As such, separate basic and diluted earnings per share of Class B convertible common stock under the two-class method has not been presented.
For the three and nine months ended September 30, 2022, the Company excluded 4.0 million private warrants, 10.0 million public warrants, 5.0 million deferred consideration, 1.7 million stock options, 1.0 million RSUs, and 0.3 million PRSUs, respectively, as their effect would have been anti-dilutive. For the nine months ended September 30, 2022, the Company excluded the Class B convertible common stock, as their effect would have been anti-dilutive.
For the three months ended September 30, 2021, the Company excluded 4.0 million private warrants, 10.0 million public warrants, 1.9 million employee equity awards, as the effect was anti-dilutive. For the nine months ended September 30, 2021, the Company excluded 4.0 million private warrants and approximately 1.9 million employee equity awards, as their effect would have been anti-dilutive.
For the three and nine months ended September 30, 2021, the Company excluded contingent consideration issued in connection with Aramis, Aimtell and PushPros and Crisp Results acquisitions, which were payable in DMS common stock, as the necessary conditions to pay such consideration had not been satisfied by the end of the period.
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
OVERVIEW
The following Management’s Discussion and Analysis (“MD&A”) is intended to assist in an understanding of our financial condition and results of operations. This MD&A is provided as a supplement to, should be read in conjunction with, and is qualified in its entirety by reference to, our Consolidated Financial Statements (Unaudited) and accompanying Notes appearing elsewhere in this Quarterly Report (the “Notes”). In addition, reference should be made to our Audited Consolidated Financial Statements and accompanying Notes to Consolidated Financial Statements and Item 7: “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in our 2021 Form 10-K. Except for the historical information contained herein, the discussions in this MD&A contain forward-looking statements that involve risks and uncertainties. Our future results could differ materially from those discussed herein. Factors that could cause or contribute to such differences include, but are not limited to, those discussed below in this MD&A under “Forward-Looking Statements and Factors that May Affect Future Results”.
RECENT DEVELOPMENTS
Strategic Alternatives
On August 16, 2021, we commenced a process to evaluate potential strategic alternatives to maximize shareholder value, and as part of that process, have been evaluating a full range of strategic, operational and financial alternatives. On September 8, 2022, our board of directors received an offer from Prism Data, LLC, an investment vehicle affiliated with our CEO Joseph Marinucci and our COO Fernando Borghese, to acquire all of our outstanding Class A common stock of DMS for $2.50 per share in cash. Our board of directors is reviewing and considering the Prism Data proposal as part of the ongoing strategic review process. There can be no assurance that either the Prism Data proposal or the strategic review process will result in any strategic alternative, or any assurance as to its outcome or timing.
Auditor Change
On August 16, 2022, following a competitive selection process, the Company's Audit Committee approved the engagement of Grant Thornton LLP (“GT”) as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022. Effective on that same date, the Company dismissed Ernst & Young (“EY”) from that role. For further information, please refer to our Current Report on Form 8-K filed with the SEC on August 19, 2022.
RESULTS OF OPERATIONS
The following table presents our consolidated results of operations as a percentage of net revenue:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Revenue by type: | |||||||||||||||||||||||
| Customer acquisition | 96.1 | % | 96.3 | % | 96.0 | % | 95.8 | % | |||||||||||||||
| Managed services | 2.2 | % | 2.9 | % | 2.8 | % | 3.4 | % | |||||||||||||||
| Software services | 1.7 | % | 0.8 | % | 1.2 | % | 0.8 | % | |||||||||||||||
| Total net revenue | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | |||||||||||||||
| Revenue by segment: | |||||||||||||||||||||||
| Brand Direct | 47.0 | % | 60.5 | % | 51.1 | % | 58.6 | % | |||||||||||||||
| Marketplace | 59.0 | % | 54.3 | % | 57.2 | % | 53.4 | % | |||||||||||||||
| Technology Solutions | 2.9 | % | 2.1 | % | 2.6 | % | 2.0 | % | |||||||||||||||
| Intercompany eliminations | (8.9) | % | (16.9) | % | (10.9) | % | (14.0) | % | |||||||||||||||
| Net revenue | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | |||||||||||||||
| Cost of revenue (exclusive of depreciation and amortization) | 73.7 | % | 71.8 | % | 73.0 | % | 70.6 | % | |||||||||||||||
| Gross profit | 26.3 | % | 28.2 | % | 27.0 | % | 29.4 | % | |||||||||||||||
| Salaries and related costs | 13.0 | % | 11.6 | % | 13.3 | % | 11.0 | % | |||||||||||||||
| General and administrative | 10.1 | % | 9.5 | % | 11.2 | % | 8.7 | % | |||||||||||||||
| Depreciation and amortization | 7.9 | % | 6.7 | % | 7.4 | % | 6.4 | % | |||||||||||||||
| Acquisition costs | * | 0.4 | % | 0.1 | % | 0.6 | % | ||||||||||||||||
| Change in fair value of contingent consideration | * | (2.9) | % | 0.9 | % | (0.8) | % | ||||||||||||||||
| (Loss) income from operations | (4.7) | % | 2.9 | % | (5.9) | % | 3.5 | % | |||||||||||||||
| Interest expense | 5.1 | % | 3.5 | % | 4.2 | % | 3.4 | % | |||||||||||||||
| Change in fair value of warrant liabilities | 1.1 | % | (6.0) | % | (0.9) | % | (4.5) | % | |||||||||||||||
| Change in Tax Receivable Agreement liability | (0.1) | % | — | % | * | — | % | ||||||||||||||||
| Loss on debt extinguishment | — | % | — | % | — | % | 0.7 | % | |||||||||||||||
| Net (loss) income before income taxes | (10.8) | % | 5.4 | % | (9.2) | % | 3.9 | % | |||||||||||||||
| Income tax expense | 0.5 | % | 0.4 | % | 0.3 | % | 0.5 | % | |||||||||||||||
| Net (loss) income | (11.3) | % | 5.0 | % | (9.5) | % | 3.4 | % | |||||||||||||||
| Net (loss) income attributable to non-controlling interest | (4.5) | % | 1.7 | % | (3.7) | % | 1.4 | % | |||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. | (6.8) | % | 3.3 | % | (5.8) | % | 2.0 | % | |||||||||||||||
____________________
* Less than one tenth of a percent.
Operating Results for the three and nine months ended September 30, 2022 and 2021
The following table presents the consolidated results of operations for the three and nine months ended September 30, 2022 and 2021 and the changes from the prior period (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| 2022 | 2021 | $ Change | % Change | 2022 | 2021 | $ Change | % Change | ||||||||||||||||||||||||||||||||||||||||
| Net revenue | $ | 90,066 | $ | 107,399 | $ | (17,333) | (16) | % | $ | 290,372 | $ | 309,281 | $ | (18,909) | (6) | % | |||||||||||||||||||||||||||||||
| Cost of revenue (exclusive of depreciation and amortization) | 66,378 | 77,063 | (10,685) | (14) | % | 211,997 | 218,304 | (6,307) | (3) | % | |||||||||||||||||||||||||||||||||||||
| Salaries and related costs | 11,668 | 12,449 | (781) | (6) | % | 38,612 | 34,426 | 4,186 | 12 | % | |||||||||||||||||||||||||||||||||||||
| General and administrative | 9,076 | 10,237 | (1,161) | (11) | % | 32,622 | 27,051 | 5,571 | 21 | % | |||||||||||||||||||||||||||||||||||||
| Depreciation and amortization | 7,142 | 7,186 | (44) | (1) | % | 21,377 | 19,649 | 1,728 | 9 | % | |||||||||||||||||||||||||||||||||||||
| Acquisition costs | 14 | 420 | (406) | (97) | % | 306 | 1,820 | (1,514) | (83) | % | |||||||||||||||||||||||||||||||||||||
| Change in fair value of contingent consideration | (3) | (3,085) | 3,082 | (100) | % | 2,533 | (2,525) | 5,058 | (200) | % | |||||||||||||||||||||||||||||||||||||
| (Loss) income from operations | $ | (4,209) | $ | 3,129 | $ | (7,338) | (235) | % | $ | (17,075) | $ | 10,556 | $ | (27,631) | (262) | % | |||||||||||||||||||||||||||||||
| Interest expense | 4,570 | 3,756 | 814 | 22 | % | 12,072 | 10,635 | 1,437 | 14 | % | |||||||||||||||||||||||||||||||||||||
| Change in fair value of warrant liabilities | 1,000 | (6,400) | 7,400 | (116) | % | (2,480) | (13,835) | 11,355 | (82) | % | |||||||||||||||||||||||||||||||||||||
| Change in Tax Receivable Agreement liability | (121) | — | (121) | (100) | % | (121) | — | (121) | (100) | % | |||||||||||||||||||||||||||||||||||||
| Loss on debt extinguishment | — | — | — | 100 | % | — | 2,108 | (2,108) | (100) | % | |||||||||||||||||||||||||||||||||||||
| Net (loss) income before income taxes | $ | (9,658) | $ | 5,773 | $ | (15,431) | (267) | % | $ | (26,546) | $ | 11,648 | $ | (38,194) | (328) | % | |||||||||||||||||||||||||||||||
| Income tax expense | 463 | 379 | 84 | 22 | % | 819 | 1,527 | (708) | (46) | % | |||||||||||||||||||||||||||||||||||||
| Net (loss) income | $ | (10,121) | $ | 5,394 | $ | (15,515) | (288) | % | $ | (27,365) | $ | 10,121 | $ | (37,486) | (370) | % | |||||||||||||||||||||||||||||||
| Net (loss) income attributable to non-controlling interest | (4,010) | 1,858 | (5,868) | (316) | % | (10,765) | 4,217 | (14,982) | (355) | % | |||||||||||||||||||||||||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. | $ | (6,111) | $ | 3,536 | $ | (9,647) | (273) | % | $ | (16,600) | $ | 5,904 | $ | (22,504) | (381) | % | |||||||||||||||||||||||||||||||
Net revenue. Our business generates revenue primarily through the delivery of a variety of performance-based marketing services, including customer acquisition, managed services and software services.
The following table presents revenue by type for each segment and the changes from the prior period:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| 2022 | 2021 | $ Change | % Change | 2022 | 2021 | $ Change | % Change | ||||||||||||||||||||||||||||||||||||||||
| Brand Direct | |||||||||||||||||||||||||||||||||||||||||||||||
| Customer acquisition | $ | 41,381 | $ | 63,332 | $ | (21,951) | (35) | % | $ | 144,123 | $ | 174,341 | $ | (30,218) | (17) | % | |||||||||||||||||||||||||||||||
| Managed services | 937 | 1,667 | (730) | (44) | % | 4,211 | 6,713 | (2,502) | (37) | % | |||||||||||||||||||||||||||||||||||||
| Total Brand Direct | $ | 42,318 | $ | 64,999 | $ | (22,681) | (35) | % | $ | 148,334 | $ | 181,054 | $ | (32,720) | (18) | % | |||||||||||||||||||||||||||||||
| Marketplace | |||||||||||||||||||||||||||||||||||||||||||||||
| Customer acquisition | $ | 53,230 | $ | 58,278 | $ | (5,048) | (9) | % | $ | 166,128 | $ | 165,300 | $ | 828 | 1 | % | |||||||||||||||||||||||||||||||
| Total Marketplace | $ | 53,230 | $ | 58,278 | $ | (5,048) | (9) | % | $ | 166,128 | $ | 165,300 | $ | 828 | 1 | % | |||||||||||||||||||||||||||||||
| Technology Solutions | |||||||||||||||||||||||||||||||||||||||||||||||
| Managed services | 1,076 | 1,471 | (395) | (27) | % | 3,989 | 3,796 | 193 | 5 | % | |||||||||||||||||||||||||||||||||||||
| Software services | 1,501 | 784 | 717 | 91 | % | 3,472 | 2,391 | 1,081 | 45 | % | |||||||||||||||||||||||||||||||||||||
| Total Technology Solutions | $ | 2,577 | $ | 2,255 | $ | 322 | 14 | % | $ | 7,461 | $ | 6,187 | $ | 1,274 | 21 | % | |||||||||||||||||||||||||||||||
| Corporate and Other | |||||||||||||||||||||||||||||||||||||||||||||||
| Customer acquisition | $ | (8,059) | $ | (18,133) | $ | 10,074 | (56) | % | $ | (31,551) | $ | (43,260) | $ | 11,709 | (27) | % | |||||||||||||||||||||||||||||||
| Total Corporate and Other | $ | (8,059) | $ | (18,133) | $ | 10,074 | (56) | % | $ | (31,551) | $ | (43,260) | $ | 11,709 | (27) | % | |||||||||||||||||||||||||||||||
| Total Customer acquisition | $ | 86,552 | $ | 103,477 | $ | (16,925) | (16) | % | $ | 278,700 | $ | 296,381 | $ | (17,681) | (6) | % | |||||||||||||||||||||||||||||||
| Total Managed services | 2,013 | 3,138 | (1,125) | (36) | % | 8,200 | 10,509 | (2,309) | (22) | % | |||||||||||||||||||||||||||||||||||||
| Total Software services | 1,501 | 784 | 717 | 91 | % | 3,472 | 2,391 | 1,081 | 45 | % | |||||||||||||||||||||||||||||||||||||
| Total Net revenue | $ | 90,066 | $ | 107,399 | $ | (17,333) | (16) | % | $ | 290,372 | $ | 309,281 | $ | (18,909) | (6) | % | |||||||||||||||||||||||||||||||
Customer Acquisition Revenue. Customer acquisition contracts deliver potential consumers or leads (i.e. number of clicks, emails, calls and applications) to the customer in real-time based on predefined qualifying characteristics specified by our customer.
Our Brand Direct segment experienced a decrease in Customer acquisition revenue of $22.0 million or 35% and $30.2 million or 17% during the three and nine months ended September 30, 2022, respectively. Customer acquisition revenue for Marketplace decreased by $5.0 million or 9% and increased by $0.8 million or 0.5% for the three and nine months ended September 30, 2022, respectively. The changes in both the Brand Direct and Marketplace segments were primarily due to macro challenges within the insurance industry which continue to apply downward pressure on cost per click (“CPC”) and cost per lead (“CPL”) pricing. In addition we’ve observed aggressive competitive activities within our publisher portfolio, as well as an adjustment in the health insurance model shifting non-enrollment ad spend which impacted our performance since Q2.
Managed Services Revenue. Managed services contracts provide continuous service of managing the customer’s media spend for the purpose of generating leads through a third-party supplier of leads, as requested by our customer. Managed services revenue experienced a slight decrease of $1.1 million or 36% and a decrease of $2.3 million or 22% during the three and nine months ended September 30, 2022. The changes were primarily driven by decreased media activity, resulting in lower agency fees.
Software Services Revenue. Software services contracts provide the customer with continuous, daily access to the Company’s proprietary software. Software services revenue is considered insignificant during the three and nine months ended September 30, 2022.
Cost of revenue and gross profit. Cost of revenue primarily includes media and other related costs, such as the cost to acquire user traffic through the purchase of impressions, clicks or actions from publishers or third-party intermediaries, including advertising exchanges, and technology costs that enable media acquisition. These media costs are used primarily to drive user traffic to the Company’s and our customers’ media properties. Cost of revenue also includes indirect costs such as data verification, hosting and fulfillment costs.
The following table presents the gross profit percentage (gross profit as a percentage of total revenue) by segment and the changes from prior period:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||
| 2022 | 2021 | PPTS Change | 2022 | 2021 | PPTS Change | ||||||||||||||||||||||||||||||
| Brand Direct | 22.3 | % | 22.8 | % | (0.5) | 20.8 | % | 23.9 | % | (3.1) | |||||||||||||||||||||||||
| Marketplace | 22.6 | % | 23.8 | % | (1.2) | 24.7 | % | 26.0 | % | (1.3) | |||||||||||||||||||||||||
| Technology Solutions | 86.0 | % | 71.8 | % | 14.2 | 86.0 | % | 75.6 | % | 10.4 | |||||||||||||||||||||||||
| Total gross profit percentage | 26.3 | % | 28.2 | % | (1.9) | 27.0 | % | 29.4 | % | (2.4) | |||||||||||||||||||||||||
Gross profit for Brand Direct decreased for the three and nine months ended September 30, 2022, primarily driven by inflationary uncertainty within the auto industry leading to compressed pricing and decreased acquisition spending, timing of optimized media rebalancing, and monetization challenges within the DMS ecosystem.
Gross profit for Marketplace decreased for the three and nine months ended September 30, 2022, primarily driven by macro industry headwinds applying downward pricing pressure impacting revenue performance within our Insurance business as well as the shift in ad spend from non enrollment periods from some of our health insurance partners. The ad spend shift particularly affected the profitability of the Crisp business model due to the more stable nature of call center operations.
Gross profit for Technology Solutions increased for the three and nine months ended September 30, 2022, driven by the optimization of media purchasing activity which led to larger budgets and resulted in increased fees in addition to the Traverse acquisition which carries a higher margin profile.
Total gross profit decreased for the three and nine months ended September 30, 2022, primarily due to the unexpected impact of inflationary pressures within the insurance industry which led to a decline in click pricing and shifts in health insurance budgets culminating in monetization contraction within the DMS ecosystem.
Salaries and related costs. Total compensation includes salaries, commissions, bonuses, payroll taxes and retirement benefits.
Salaries and related costs decreased by $0.8 million or 6.3% for the three months ended September 30, 2022 due to higher than expected attrition; and increased $4.2 million or 12.2% for the nine months ended September 30, 2022 due to an increase in stock-based compensation and headcount as a result of required expansion of our workforce to support the Company, as well as the addition of FTEs from the Crisp Results and DMS Voice licensing.
General and administrative. General and administrative consist of expenses incurred in our normal course of business relating to office supplies, computer and technology, rent and utilities, insurance, legal and professional fees, state and local taxes and licenses, penalties and settlements and bad debt expense, as well as sales and marketing expenses relating to advertising and promotion. We also include other expenses such as investment banking expenses, fundraising costs and costs related to the advancement of our corporate social responsibility program.
General and administrative expenses decreased $1.2 million or 11.3% for the three months ended September 30, 2022 largely due to improved client collections and synergies within software and technology; and increased $5.6 million or 20.6% for the nine months ended September 30, 2022 due to acquisition related expenses across multiple categories including software, technology, and professional expenses as well as an overall increase in compliance fees.
Depreciation and amortization. Property, plant and equipment consists of computers and office equipment, furniture and
fixtures, leasehold improvements and internally developed software costs. Intangible assets subject to amortization include technology, customer relationships, brand, and non-competition agreements.
Depreciation and amortization expense decreased $0.0 million or 0.6% for the three months ended September 30, 2022 due to fewer fixed assets purchased during the current quarter versus prior year’s quarter; and increased $1.7 million or 8.8%, during the for the nine months ended September 30, 2022 due to fixed assets acquired with Crisp Results and AAP, as well as continued investments in internally developed software, which were placed in service during 2021.
Acquisition costs. Acquisition related costs are not considered part of the consideration for acquisitions and are expensed as incurred. This includes acquisition incentive compensation and other transaction related costs.
Acquisition costs changed $0.4 million or 96.7% and $1.5 million or 83.2% during the three and nine months ended September 30, 2022, respectively. The changes were primarily due to prior year costs related to the AAP and Crisp acquisitions (see Note 6. Acquisitions).
Interest expense. Interest expense for three and nine months ended September 30, 2022 was related primarily to our debt, which carries a variable interest rate based on multiple options at either LIBOR plus 5% or an alternate base rate, plus an agreed upon margin with Truist Bank, the Company’s financial institution since May 25, 2021 (see Note 5. Debt).
Interest expense increased by $0.8 million or 21.7% and $1.4 million or 13.5%, during the three and nine months ended September 30, 2022, respectively. The increases for the three and nine months ended September 30, 2022, were primarily due to approximately 1.0% increase in our LIBOR rate as a result of current financial markets.
Income tax expense. The Company recorded income tax expense of $0.5 million and $0.8 million for the three and nine months ended September 30, 2022, respectively. The blended effective tax rate for the three and nine months ended September 30, 2022 was 4.8% and 3.1%, respectively, which varies from our statutory U.S. tax rate due to taxable income or loss that is allocated to the non-controlling interest and impact of the valuation allowance on DMS, Inc.
NON-GAAP FINANCIAL MEASURES
In addition to providing financial measurements based on accounting principles generally accepted in the United States of America (“GAAP”), this Quarterly Report includes additional financial measures that are not prepared in accordance with GAAP (“non-GAAP”), including adjusted EBITDA, unlevered free cash flow, adjusted net income and adjusted EPS. A reconciliation of non-GAAP financial measures to the most directly comparable GAAP financial measures can be found below.
As explained further below, we use these financial measures internally to review the performance of our business units without regard to certain accounting treatments, non-operational, extraordinary or non-recurring items. We believe that presentation of these non-GAAP financial measures provides useful information to investors regarding our results of operations. Because of these limitations, management relies primarily on its GAAP results and uses non-GAAP measures only as a supplement.
Adjusted EBITDA, Unlevered Free Cash Flow and Unlevered Free Cash Flow Conversion
We use the non-GAAP measures of Adjusted EBITDA and Unlevered Free Cash Flow to assess operating performance. Management believes that these measures provide useful information to investors regarding DMS’s operating performance and its capacity to incur and service debt and fund capital expenditures. DMS believes that these measures are used by many investors, analysts and rating agencies as a measure of performance. By reporting these measures, DMS provides a basis for comparison of our business operations between current, past and future periods by excluding items that DMS does not believe are indicative of our core operating performance.
Financial measures that are non-GAAP should not be considered as alternatives to operating income, cash flows from operating activities or any other performance measures derived in accordance with GAAP as measures of operating performance, or cash flows as measures of liquidity. These measures have limitations as analytical tools, and you should not consider them in isolation or as a substitute for analysis of our results as reported under GAAP. Because of these limitations, DMS relies primarily on its GAAP results and uses Adjusted EBITDA and Unlevered Free Cash Flow only as a supplement.
Adjusted EBITDA is defined as net (loss) income, excluding (a) interest expense, (b) income tax expense, (c) depreciation and amortization, (d) change in fair value of warrant liabilities, (e) debt extinguishment, (f) stock-based compensation, (g) change in Tax Receivable Agreement liability, (h) restructuring costs, (i) acquisition costs, and (j) other expense.
In addition, we adjust to take into account estimated cost synergies related to our acquisitions. These adjustments are estimated based on cost-savings that are expected to be realized within our acquisitions over time as these acquisitions are fully integrated into DMS. These cost-savings result from the removal of cost and or service redundancies that already exist within DMS, technology synergies as systems are consolidated and centralized, headcount reductions based on redundancies, right-sized cost structure of media and service costs utilizing the most beneficial contracts within DMS and the acquired companies with external media and service providers. We believe that these non-synergized costs tend to overstate our expenses during the periods in which such synergies are still being realized.
Furthermore, in order to review the performance of the combined business over periods that extend prior to our ownership of the acquired businesses, we include the pre-acquisition performance of the businesses acquired. Management believes that doing so helps to understand the combined operating performance and potential of the business as a whole and makes it easier to compare performance of the combined business over different periods.
Unlevered Free Cash Flow is defined as Adjusted EBITDA, less capital expenditures, and Unlevered Free Cash Flow Conversion is defined as Unlevered Free Cash Flow divided by Adjusted EBITDA.
The following table provides a reconciliation between Adjusted net income and Adjusted EBITDA, and Unlevered Free Cash Flow, from Net loss, the most directly comparable GAAP measure (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Net (loss) income | $ | (10,121) | $ | 5,394 | $ | (27,365) | $ | 10,121 | |||||||||||||||
| Adjustments | |||||||||||||||||||||||
| Interest expense | 4,570 | 3,756 | 12,072 | 10,635 | |||||||||||||||||||
| Income tax expense | 463 | 379 | 819 | 1,527 | |||||||||||||||||||
| Depreciation and amortization | 7,142 | 7,186 | 21,377 | 19,649 | |||||||||||||||||||
Change in fair value of warrant liabilities (1) | 1,000 | (6,400) | (2,480) | (13,835) | |||||||||||||||||||
| Change in Tax Receivable Agreement liability | (121) | — | (121) | — | |||||||||||||||||||
| Loss on debt extinguishment | — | — | — | 2,108 | |||||||||||||||||||
| Stock-based compensation expense | 1,424 | 1,516 | 5,332 | 4,046 | |||||||||||||||||||
| Restructuring costs | (13) | 52 | 2,166 | 133 | |||||||||||||||||||
Acquisition costs (2) | 14 | 420 | 306 | 1,820 | |||||||||||||||||||
| Change in fair value of contingent consideration liabilities | (3) | (3,085) | 2,533 | (2,525) | |||||||||||||||||||
Other expense (3) | 708 | 887 | 3,940 | 4,123 | |||||||||||||||||||
| Adjusted net income | $ | 5,063 | $ | 10,105 | $ | 18,579 | $ | 37,802 | |||||||||||||||
| Additional adjustments | |||||||||||||||||||||||
Pro forma cost savings - Reorganization (4) | $ | — | $ | — | $ | — | $ | 31 | |||||||||||||||
Pro forma cost savings - Acquisitions (5) | — | 856 | — | 2,656 | |||||||||||||||||||
Acquisitions EBITDA (6) | — | — | — | 2,711 | |||||||||||||||||||
| Adjusted EBITDA | $ | 5,063 | $ | 10,961 | $ | 18,579 | $ | 43,200 | |||||||||||||||
| Less: Capital Expenditures | 2,050 | 3,663 | 5,247 | 7,875 | |||||||||||||||||||
| Unlevered free cash flow | $ | 3,013 | $ | 7,298 | $ | 13,332 | $ | 35,325 | |||||||||||||||
| Unlevered free cash flow conversion | 59.5 | % | 66.6 | % | 71.8 | % | 81.8 | % | |||||||||||||||
______________
(1)Mark-to-market warrant liability adjustments.
(2)Includes business combination transaction fees, acquisition incentive payments and pre-acquisition expenses.
(3)Includes legal fees associated with acquisitions and other extraordinary matters, costs related to philanthropic initiatives, and private warrant transaction related costs.
(4)Costs savings as a result of the Company reorganization initiated in Q2 2020.
(5)Cost synergies expected as a result of the full integration of the acquisitions.
(6)Pre-acquisition Adjusted EBITDA results from the AAP and Crisp Results acquisitions during the three and nine months ended September 30, 2021.
A reconciliation of Unlevered Free Cash Flow to net cash provided by operating activities, the most directly comparable GAAP measure, is presented below (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Unlevered free cash flow | $ | 3,013 | $ | 7,298 | $ | 13,332 | $ | 35,325 | |||||||||||||||
| Capital expenditures | 2,050 | 3,663 | 5,247 | 7,875 | |||||||||||||||||||
| Adjusted EBITDA | $ | 5,063 | $ | 10,961 | $ | 18,579 | $ | 43,200 | |||||||||||||||
Acquisitions EBITDA (1) | — | — | — | 2,711 | |||||||||||||||||||
Pro forma cost savings - Reorganization (2) | — | — | — | 31 | |||||||||||||||||||
Pro forma cost savings - Acquisitions (3) | — | 856 | — | 2,656 | |||||||||||||||||||
| Adjusted net income | $ | 5,063 | $ | 10,105 | $ | 18,579 | $ | 37,802 | |||||||||||||||
Acquisition costs (4) | 14 | 420 | 306 | 1,820 | |||||||||||||||||||
| Change in fair value of contingent consideration liabilities | (3) | (3,085) | 2,533 | (2,525) | |||||||||||||||||||
Other expenses (5) | 708 | 887 | 3,940 | 4,123 | |||||||||||||||||||
| Stock-based compensation | 1,424 | 1,516 | 5,332 | 4,046 | |||||||||||||||||||
| Restructuring costs | (13) | 52 | 2,166 | 133 | |||||||||||||||||||
Change in fair value of warrant liabilities (6) | 1,000 | (6,400) | (2,480) | (13,835) | |||||||||||||||||||
| Loss on debt extinguishment | — | — | — | 2,108 | |||||||||||||||||||
| Subtotal before additional adjustments | $ | 1,933 | $ | 16,715 | $ | 6,782 | $ | 41,932 | |||||||||||||||
| Less: Interest expense | 4,570 | 3,756 | 12,072 | 10,635 | |||||||||||||||||||
| Less: Income tax expense | 463 | 379 | 819 | 1,527 | |||||||||||||||||||
| Less: Change in Tax Receivable Agreement liability - Consolidated statements of operations | (121) | — | (121) | — | |||||||||||||||||||
| Provision for bad debt | (34) | 475 | 1,305 | 1,384 | |||||||||||||||||||
| Lease restructuring charges | (169) | (255) | (167) | (81) | |||||||||||||||||||
| Loss on debt extinguishment | — | — | — | 2,108 | |||||||||||||||||||
| Stock-based compensation, net of amounts capitalized | 1,424 | 1,446 | 5,332 | 3,976 | |||||||||||||||||||
| Amortization of debt issuance costs | 211 | 478 | 1,149 | 1,006 | |||||||||||||||||||
| Deferred income tax provision, net | (375) | (1,220) | (1,160) | (856) | |||||||||||||||||||
| Change in fair value of contingent consideration | (3) | (3,085) | 2,533 | (2,525) | |||||||||||||||||||
| Change in fair value of warrant liability | 1,000 | (6,400) | (2,480) | (13,835) | |||||||||||||||||||
| Change in Tax Receivable Agreement liability - Consolidated statements of cash flows | (120) | — | (120) | — | |||||||||||||||||||
| Change in income tax receivable and payable | 666 | 1,600 | 1,297 | (728) | |||||||||||||||||||
| Change in accounts receivable | 798 | (2,994) | 4,824 | (7,324) | |||||||||||||||||||
| Change in prepaid expenses and other current assets | (1,465) | (2,343) | 1,120 | (2,121) | |||||||||||||||||||
| Change in accounts payable and accrued expenses | (4,066) | 4,401 | (5,341) | (2,367) | |||||||||||||||||||
| Change in other liabilities | (220) | (326) | (195) | (516) | |||||||||||||||||||
| Net cash provided by operating activities | $ | (5,332) | $ | 4,357 | $ | 2,109 | $ | 7,891 | |||||||||||||||
______________
(1)Pre-acquisition Adjusted EBITDA results from the AAP and Crisp Results acquisitions during the three and nine months ended September 30, 2021.
(2)Costs savings as a result of the Company reorganization initiated in Q2 2020.
(3)Cost synergies expected as a result of the full integration of the acquisitions.
(4)Includes business combination transaction fees, acquisition incentive payments and pre-acquisition expenses.
(5)Includes legal fees associated with acquisitions and other extraordinary matters, costs related to philanthropic initiatives, and private warrant transaction related costs.
(6)Mark-to-market warrant liability adjustments.
Adjusted Net Income and Adjusted EPS
We use the non-GAAP measures Adjusted Net Income and Adjusted EPS to assess operating performance. Management believes that these measures provide investors with useful information on period-to-period performance as evaluated by management and comparison with our past financial and operating performance. Management also believes these non-GAAP financial measures are useful in evaluating our operating performance compared to that of other companies in our industry, as this metric generally eliminates the effects of certain items that may vary from company to company for reasons unrelated to overall operating performance. We define Adjusted Net Income (Loss) as net loss attributable to Digital Media Solutions, Inc. adjusted for (x) costs associated with the change in fair value of warrant liabilities, debt extinguishment, Business Combination, acquisition-related costs, equity based compensation and lease restructuring charges and (y) the reallocation of net income (loss) attributable to non-controlling interests from the assumed acquisition by Digital Media Solutions, Inc. of all units of Digital Media Solutions Holdings, LLC (“DMSH LLC”) (other than units held by subsidiaries of Digital Media Solutions, Inc.) for newly-issued shares of Class A Common Stock of Digital Media Solutions, Inc. on a one-to-one basis. We define adjusted pro forma net loss per share as adjusted pro forma net loss divided by the weighted-average shares of Class A Common Stock outstanding, assuming the acquisition by Digital Media Solutions, Inc. of all outstanding DMSH LLC units (other than units held by subsidiaries of Digital Media Solutions, Inc.) for newly-issued shares of Class A Common Stock on a one-to-one-basis.
The following table presents a reconciliation between GAAP Earnings Per Share and Non-GAAP Adjusted Net Income and Adjusted EPS (In thousands, except per share data):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Numerator: | |||||||||||||||||||||||
| Net (loss) income | $ | (10,121) | $ | 5,394 | $ | (27,365) | $ | 10,121 | |||||||||||||||
| Net (loss) income attributable to non-controlling interest | (4,010) | $ | 1,858 | (10,765) | 4,217 | ||||||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - basic | $ | (6,111) | $ | 3,536 | $ | (16,600) | $ | 5,904 | |||||||||||||||
| Add: Income effects of Class B convertible common stock | $ | (4,010) | $ | 1,858 | $ | — | $ | 4,217 | |||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - diluted | $ | (10,121) | $ | 5,394 | $ | (16,600) | $ | 10,121 | |||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted average shares - basic | 39,961 | 36,511 | 37,644 | 35,050 | |||||||||||||||||||
| Add: dilutive effects of Class B convertible common stock | 25,699 | 25,853 | — | 25,853 | |||||||||||||||||||
| Add: dilutive effects of employee equity awards | — | 267 | — | 515 | |||||||||||||||||||
| Add: dilutive effects of public warrants | — | — | — | 168 | |||||||||||||||||||
| Add: dilutive effects of deferred consideration | — | 690 | — | 402 | |||||||||||||||||||
| Weighted average shares - diluted | 65,660 | 63,321 | 37,644 | 61,988 | |||||||||||||||||||
| Net earnings (loss) per common share: | |||||||||||||||||||||||
| Basic | $ | (0.15) | $ | 0.10 | $ | (0.44) | $ | 0.17 | |||||||||||||||
| Diluted | $ | (0.15) | $ | 0.09 | $ | (0.44) | $ | 0.16 | |||||||||||||||
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Numerator: | |||||||||||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - basic | $ | (6,111) | $ | 3,536 | $ | (16,600) | $ | 5,904 | |||||||||||||||
| Net (loss) income attributable to Digital Media Solutions, Inc. - diluted | $ | (10,121) | $ | 5,394 | $ | (16,600) | $ | 10,121 | |||||||||||||||
| Add adjustments: | |||||||||||||||||||||||
| Change in fair value of warrant liabilities | $ | 1,000 | $ | (6,400) | $ | (2,480) | $ | (13,835) | |||||||||||||||
| Loss on debt extinguishment | — | — | — | 2,108 | |||||||||||||||||||
| Acquisition and related costs | 14 | 420 | 306 | 1,820 | |||||||||||||||||||
| Restructuring costs | (13) | 52 | 2,166 | 133 | |||||||||||||||||||
| Business combination expenses | — | 856 | — | 2,656 | |||||||||||||||||||
| Stock-based compensation expense | 1,424 | 1,516 | 5,332 | 4,046 | |||||||||||||||||||
| $ | 2,425 | $ | (3,556) | $ | 5,324 | $ | (3,072) | ||||||||||||||||
| Net income tax expense based on conversion of units | — | (337) | — | 565 | |||||||||||||||||||
| Adjusted net income (loss) attributable to Digital Media Solutions, Inc. - basic | $ | (3,686) | $ | (357) | $ | (11,276) | $ | 3,397 | |||||||||||||||
| Adjusted net income (loss) attributable to Digital Media Solutions, Inc. - diluted | $ | (7,696) | $ | 2,175 | $ | (11,276) | $ | 6,484 | |||||||||||||||
| Denominator: | |||||||||||||||||||||||
| Weighted-average shares outstanding - basic | 39,961 | 36,511 | 37,644 | 35,050 | |||||||||||||||||||
| Weighted-average LLC Units of DMSH, LLC that are convertible into Class A common stock | 25,699 | 36,511 | 24,109 | 35,050 | |||||||||||||||||||
| 65,660 | 73,022 | 61,753 | 70,100 | ||||||||||||||||||||
| Adjusted EPS - basic | $ | (0.06) | $ | — | $ | (0.18) | $ | 0.05 | |||||||||||||||
| Adjusted EPS - diluted | $ | (0.12) | $ | 0.03 | $ | (0.18) | $ | 0.09 | |||||||||||||||
LIQUIDITY AND CAPITAL RESOURCES
The following table summarizes certain key measures of our liquidity and capital resources (in thousands):
| September 30, 2022 | December 31, 2021 | $ Change | % Change | ||||||||||||||||||||
| Cash | $ | 18,271 | $ | 26,394 | $ | (8,123) | (31) | % | |||||||||||||||
| Availability under revolving credit facility | $ | 50,000 | $ | 50,000 | $ | — | — | % | |||||||||||||||
| Total Debt | $ | 217,088 | $ | 217,755 | $ | (667) | — | % | |||||||||||||||
Our capital sources are focused on investments in our technology solutions, corporate infrastructure and strategic acquisitions to further expand into new business sectors and/or expand sales in existing sectors. We generate sufficient cash flows for working capital and expect to do so for the foreseeable future.
Our principal sources of liquidity on a short-term basis are cash and cash equivalents, and cash flows provided by operations. Our primary use of cash is compensation to our employees and payments for general operating expenses and interest expense.
Borrowings under the Revolving Facility bear interest, at our option, at either (i) adjusted LIBOR plus 4.25% or (ii) a base rate (which is equal to the highest of (a) the administrative agent’s prime rate, (b) the federal funds rate, as in effect from time to time, plus 0.50%, (c) one-month LIBOR plus 1.00%, and (d) 1.75% (the “Base Rate”)), plus 3.25%. The Term Loan bears interest at our option, at either (i) adjusted LIBOR plus 5.00% or (ii) the Base Rate plus 4.00%. Under the Revolving Facility, DMS LLC pays a 0.50% per annum commitment fee in arrears on the undrawn portion of the revolving commitments. Since
May 25, 2021 our interest rate is based on LIBOR plus 5.00%. For the three and nine months ended September 30, 2022, the effective interest rate was 7.25%. On October 4, 2022, the Company drew $5.0 million on the Revolving Facility.
The Term Loan, which was issued at an original issue discount of 1.80% or $4.2 million, is subject to payment of 1.0% of the original aggregate principal amount per annum paid quarterly, with a bullet payment at maturity. The Term Loan will mature, and the revolving credit commitments under the Revolving Facility will terminate, on May 25, 2026, when any outstanding balances will become due.
As of September 30, 2022 and December 31, 2021, respectively, we were in material compliance with all financial covenants. If the Company fails to comply with its financial covenants, an event of default under the Credit Facility would be triggered and the Company’s obligations under the Credit Facility may be accelerated. Management is monitoring the Company’s compliance and future ability to comply with all financial covenants, which management estimates may not be met within one year of issuance of these consolidated financial statements. Management is prepared to take certain steps to ensure compliance, including requesting waivers from or entering into amendments with the Lenders.
Cash flows from operating activities
Net cash provided by operating activities was $2.1 million for the nine months ended September 30, 2022 as compared to $7.9 million provided by operating activities in the nine months ended September 30, 2021. The decrease is primarily attributable to an increase in accounts receivable collections, and a decrease in accounts payable and current accrued expenses due to timing of vendor payments.
Cash flows from investing activities
Net cash used in investing activities for the nine months ended September 30, 2022 decreased by $24.9 million or 76% to $7.8 million from $32.7 million for the nine months ended September 30, 2021, primarily due to the timing of the acquisition of AAP and Crisp Results made during the first half of 2021.
Cash flows from financing activities
Net cash (used in) provided by financing activities for the nine months ended September 30, 2022 was $(2.4) million, reflecting an increase of $14.6 million or 120%, as compared to $12.1 million for the nine months ended September 30, 2021. This increase was due to higher required repayments of borrowings of long-term debt and notes payable in the prior year under the Monroe Credit Facility and Insurance Premium Financial Service arrangements.
For the nine months ended September 30, 2022, our Unlevered Free Cash Flow conversion rate decreased 10% due to lower business performance.
OFF-BALANCE SHEET ARRANGEMENTS
We do not have any outstanding off-balance sheet guarantees, interest rate swap transactions or foreign currency forward contracts. In addition, we do not engage in trading activities involving non-exchange traded contracts. In our ongoing business, we do not enter into transactions involving, or otherwise form relationships with, unconsolidated entities or financial partnerships that are established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Refer to Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operation in our 2021 Form 10-K, for further information on our critical and other significant accounting policies.
RECENTLY ISSUED ACCOUNTING STANDARDS
Refer to Note 1. Business, Basis of Presentation and Summary of Significant Accounting Policies in the Notes to Consolidated Financial Statements (Unaudited), included in Item 1: Financial Statements of this Quarterly Report, for a more detailed discussion on recent accounting pronouncements and the related impact on our consolidated financial statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
For our disclosures about market risk, please see Part II, Item 7A: Quantitative and Qualitative Disclosures about Market Risk in our 2021 Form 10-K.
Interest Rate Risk
As of September 30, 2022, we had total debt outstanding of $217.1 million (net of $5.1 million of unamortized discount and debt issuance costs), which was comprised of amounts outstanding under our original Term Loan of $225 million. Substantially all this debt bears interest at floating rates. Changes in interest rates affect the interest expense we pay on our floating rate debt. A hypothetical 1% (100 basis points) increase in interest rates would increase our interest expense by approximately $2.3 million annually, based on the debt outstanding at September 30, 2022.
Item 4. Evaluation of Disclosure Controls and Procedures
We have established disclosure controls and procedures to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and that such information is accumulated and made known to the officers who certify the Company’s financial reports and to other members of senior management and the Board of Directors as appropriate to allow timely decisions regarding required disclosure.
Based on their evaluation as of September 30, 2022, the principal executive officer and principal financial officer of the Company have concluded that during the period covered by this Quarterly Report, the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) were not effective because of the material weakness in our internal control over financial reporting described in our 2021 Form 10-K. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our quarterly interim consolidated financial statements will not be prevented or detected on a timely basis.
Management’s Report on Internal Control Over Financial Reporting
Under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. Based on our evaluation under the framework in Internal Control - Integrated Framework, management concluded that the Company’s internal control over financial reporting was not effective as of December 31, 2021, as a material weakness existed. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our consolidated financial statements could occur but will not be prevented or detected on a timely basis.
In this regard, in connection with our implementation of policies and procedures with respect to accounts receivable, including the allowance for doubtful accounts, and associated revenue, we previously discovered a material error in a customer receivable account, related to a duplicate billing of a customer in fiscal years 2020 and 2021. As a result of these matters, we determined that our controls around revenue and accounts receivable policies and procedures were not effective as of December 31, 2021. The errors related to these matters have been corrected and are properly reflected in our consolidated financial statements for the year ended December 31, 2021.
We continue to analyze our aged receivables and have not identified any additional material errors similar to the items identified above. We are monitoring our processes and controls around evaluating the collectability of customer receivables along with assessing the loss rates used to calculate the reserve for potential uncollectible receivables. We believe our ongoing efforts will be sufficient to remediate the identified material weakness.
We will not consider the material weakness remediated until the remedial controls operate for a sufficient period of time and we have concluded, through testing, that these controls are effectively designed and operating effectively. We will continue to assess throughout 2022.
Changes in Internal Control Over Financial Reporting
Except as disclosed above, there have been no changes in our internal control over financial reporting during the fiscal quarter ended September 30, 2022, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
From time to time, we are involved in various disputes and litigation that arise in the ordinary course of business. However, separate from such matters, to the best of our knowledge, there are no material pending or threatened legal proceedings to which we are a party, either individually or in the aggregate.
Item 1A. Risk Factors
The Company’ s business, results of operations, and financial condition are subject to various risks and uncertainties, including those described below and in Part I, Item 1A: Risk Factors in our 2021 Form 10-K.
We have entered into, and may in the future enter into, credit facilities which may contain operating and financial covenants that restrict our business and financing activities.
We have entered into, and may in the future enter into, credit facilities which contain restrictions that limit our flexibility in operating our business. Our credit facility contains, and any future credit facility may contain, various covenants and ratios that limit our ability to engage in specific types of transactions. For example, under our credit facility, we have a net leverage ratio covenant of 5:1, which will reduce to 4.5:1 as of December 31, 2022. Subject to limited exceptions, these covenants and ratios limit our ability to, among other things:
•sell assets or make changes to the nature of our business;
•engage in mergers or acquisitions;
•incur, assume or permit additional indebtedness;
•make restricted payments, including paying dividends on, repurchasing, redeeming or making distributions with respect to our capital stock;
•make specified investments;
•engage in transactions with our affiliates; and
•make payments in respect of subordinated debt.
Our obligations under our credit facility are collateralized by a pledge of substantially all of our assets, including accounts receivable, deposit accounts, intellectual property, and investment property and equipment. The covenants in our credit facility may limit our ability to obtain future financing, make needed capital expenditures, withstand a downturn in our business or economy in general or otherwise conduct necessary corporate activities. We may also be prevented from taking advantage of business opportunities that arise because of the limitations that the restrictive covenants under the credit facility impose on us. In the event that we breach one or more covenants, our lenders may choose to declare an event of default and require that we immediately repay all amounts outstanding, terminate the commitment to extend further credit and foreclose on the collateral granted to them to collateralize such indebtedness, which includes our intellectual property. Although we are currently in compliance with these covenants, if we anticipate non-compliance with certain financial covenants and ratios, we may be forced to request waivers from or enter into amendments with our lenders to avoid default. We cannot assure you that we will be able to negotiate a change to our credit facilities to allow us to amend these covenants or that any such amendment will be available to us on favorable terms. An inability on our part to amend the financial covenants could limit our ability to take advantage of the benefits described above related to our ability to engage in specific types of transactions and could decrease our earnings, if any, which would have an adverse effect on our results of operations and the value of our shares of common stock. In addition, if we fail to meet the required covenants and ratios, we will not have access to further draw-downs under our credit facility.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds from Registered Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
None.
Item 5. Other Information
None.
Item 6. Exhibits
The following exhibits are filed as part of this report:
| Exhibit Number | Description | |||||||
| Certificate of Incorporation of Digital Media Solutions, Inc. (incorporated by reference to Exhibit 3.1 to Digital Media Solutions, Inc.’s Current Report on Form 8-K filed with the SEC on July 16, 2020). | ||||||||
| Bylaws of Digital Media Solutions, Inc. (incorporated by reference to Exhibit 3.2 to Digital Media Solutions, Inc.’s Current Report on Form 8-K filed with the SEC on July 16, 2020). | ||||||||
| Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||||||||
| Certification of Chief Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||||||||
| Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | ||||||||
| Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | ||||||||
| 101.INS* | Inline XBRL Instance Document | |||||||
| 101.SCH*† | Inline XBRL Taxonomy Extension Schema | |||||||
| 101.CAL*† | Inline XBRL Taxonomy Extension Calculation Linkbase | |||||||
| 101.DEF*† | Inline XBRL Taxonomy Extension Definition Linkbase | |||||||
| 101.LAB*† | Inline XBRL Taxonomy Extension Label Linkbase | |||||||
| 101.PRE*† | Inline XBRL Taxonomy Extension Presentation Linkbase | |||||||
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |||||||
_______________________________________
* Filed herewith
† Users of this data are advised pursuant to Rule 406T of Regulation S-T that this interactive data file is deemed not filed or part of a registration statement for purposes of Section 11 or 12 of the Securities Act, is deemed not filed for purposes of Section 18 of the Exchange Act, and otherwise is not subject to liability under these section
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: November 9, 2022
| Digital Media Solutions, Inc. | ||||||||
| /s/ Joseph Marinucci | ||||||||
| Name: | Joseph Marinucci | |||||||
| Title: | President and Chief Executive Officer (Principal Executive Officer) | |||||||
| /s/ Richard Rodick | ||||||||
| Name: | Richard Rodick | |||||||
| Title: | Chief Financial Officer (Principal Financial and Accounting Officer) | |||||||