Upland Software, Inc. - Annual Report: 2021 (Form 10-K)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 001-36720
Upland Software, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 27-2992077 | ||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | ||||
401 Congress Ave., Suite 1850
Austin, Texas 78701
(512) 960-1010
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||||||
| Common Stock, par value $0.0001 per share | UPLD | The Nasdaq Global Market | ||||||
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 | x | 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 has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No x
The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was approximately $1.2 billion based upon the closing price of $41.17 of such common stock on the Nasdaq Global Market on June 30, 2021 (the last business day of the registrant’s most recently completed second fiscal quarter). Shares of common stock held as of June 30, 2021 by each director and executive officer of the registrant, as well as shares held by each holder of 10% of the common stock known to the registrant, have been excluded for purposes of the foregoing calculation. This determination of affiliate status is not a conclusive determination for other purposes.
As of February 18, 2022, 31,132,533 shares of the registrant’s Common Stock were outstanding.
Documents incorporated by reference:
Certain portions, as expressly described in this Annual Report on Form 10-K, of the registrant’s Proxy Statement for the 2022 Annual Meeting of the Stockholders, to be filed not later than 120 days after the end of the year covered by this Annual Report, are incorporated by reference into Part III of this Annual Report where indicated.
TABLE OF CONTENTS
| PART I | ||||||||
| PART II | ||||||||
| PART III | ||||||||
| PART IV | ||||||||
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PART I
Special Note Regarding Forward Looking Statements
This Annual Report on Form 10-K contains “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements generally relate to future events or our future financial or operating performance. Forward-looking statements may be identified by the use of forward-looking words such as “anticipate,” “believe,” “may,” “will,” “continue,” “seek,” “estimate,” “intend,” “hope,” “predict,” “could,” “should,” “would,” “project,” “plan,” “expect” or the negative or plural of these words or similar expressions, although not all forward-looking statements contain these words. These forward-looking statements include, but are not limited to, statements concerning the following:
•our financial performance and our ability to achieve or sustain profitability or predict future results;
•our plans regarding future acquisitions and our ability to consummate and integrate acquisitions;
•our ability to expand our go to market operations, including our marketing and sales organization, and successfully increase sales of our products;
•our ability to obtain financing in the future on acceptable terms or at all;
•our expectations with respect to revenue, cost of revenue and operating expenses in future periods;
•our expectations with regard to revenue from perpetual licenses, usage fees and professional services;
•our ability to adapt to the impacts on the global economy associated with the ongoing COVID-19 pandemic;
•our ability to attract and retain customers;
•our ability to successfully enter new markets and manage our international expansion;
•our ability to comply with privacy laws and regulations;
•our ability to deliver high-quality customer service;
•our plans regarding, and our ability to effectively manage, our growth;
•maintaining our senior management team and key personnel;
•the performance of our resellers;
•our ability to adapt to changing market conditions and competition;
•our ability to adapt to technological change and continue to innovate;
•economic and financial conditions;
•the growth of demand for enterprise work management applications;
•our ability to integrate our applications with other software applications;
•maintaining and expanding our relationships with third parties;
•costs associated with defending intellectual property infringement and other claims;
•our ability to maintain, protect and enhance our brand and intellectual property;
•our expectations with regard to trends, such as seasonality, which affect our business;
•our plans with respect to foreign currency exchange risk and inflation;
•our beliefs regarding how our applications benefit customers and what our competitive strengths are;
•the operation, reliability and security of our third-party data centers;
•the risk that we did not consider another contingency included in this list;
•our expectations as to the payment of dividends; and
•other risk factors included under “Risk Factors” in this Annual Report on Form 10-K.
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You should not rely upon forward-looking statements as predictions of future events. We have based the forward-looking statements contained in this Annual Report on Form 10-K primarily on our current expectations and projections about future events and trends that we believe may affect our business, financial condition, results of operations, and prospects. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties, and other factors, including those described in the section titled “Risk Factors” and elsewhere in this Annual Report on Form 10-K. Moreover, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-looking statements contained in this Annual Report on Form 10-K. We cannot assure you that the results, events, and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events, or circumstances could differ materially from those described in the forward-looking statements.
The forward-looking statements made in this Annual Report on Form 10-K relate only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statements made in this Annual Report on Form 10-K to reflect events or circumstances after the date of this Annual Report on Form 10-K or to reflect new information or the occurrence of unanticipated events, except as required by law. We may not actually achieve the plans, intentions, or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures, or investments we may make.
All references to “Upland,” “we,” “us” or “our” mean Upland Software, Inc.
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Item 1. Business
Upland provides cloud-based software that enables our customers to drive digital transformation in the following business functions:
•Marketing. Digital marketing, e-commerce, and customer service teams use our applications to interact with consumers across multiple channels to acquire new customers, drive product and service utilization, resolve issues, and build brand loyalty. Our applications deliver value to the customer experience, or CXM, focused organizations across a variety of use cases including mobile messaging, mobile application marketing, Voice of Customer engagement, or VoC, email marketing, knowledge management and call center productivity. We also offer customer data platform, or CDP, solutions that provide organizations the ability to unify customer data stored across diverse systems to drive more personalized omnichannel campaigns.
•Sales. Sales teams employ our applications to drive growth through deeper customer engagement, reduced sales cycle times, and overall improved collaboration between sales, marketing, and other customer-facing functions. We offer applications that help organizations optimize their sales opportunity and account management processes, coordinate proposal and reference activities, collaborate on the creation and publication of digital content, and gain increased control over key sales and marketing workflows, activities, and budgets.
•Contact Center. Customer service and support environments use our applications to enable agents to resolve issues and engage customers. We offer applications that improve customer experience and reduce call volume and cycle times through customer self-service products and VoC technology that captures customer sentiment in real-time. Upland also offers products that improve call center agent productivity by providing more direct access to knowledge and to customer sentiment thereby improving both inbound call outcomes and proactive outbound success. We also provide products that deliver knowledge-based, guided workflows for customer service environments supporting complex products in strict regulatory requirements. Additional solutions help call center leadership to manage agent performance and measure real-time performance relative to call resolution and customer sentiment, improve performance through gamification, and gather agent feedback to keep employee engagement high.
•Project Management. Business leaders and Project Management Offices, or PMOs, use our applications to optimize project portfolios, balance capacity against demand, improve financial-based decision making, align execution of projects to strategy across large organizations, and manage the entire project delivery lifecycle. Our applications deliver value to project management across a variety of use cases including continuous improvement, enterprise information technology, or IT, new product development, and services departments along with industry depth in higher education, public sector, and healthcare IT.
•Information Technology. IT departments use our applications to manage a variety of IT activities and resources across the enterprise. Our applications help information technology departments ensure they are delivering against the objectives of the business by helping them select and prioritize the right investments, gain greater control of resource demand and allocation, and track and report benefit realization. Our applications enable executives to gain better insight into IT spending to help prevent cost overruns and understand the nature of consumption.
•Business Operations. Multiple functional departments use our applications to streamline operations and accelerate business performance across their value chains. Upland solutions in this area range from supply chain collaboration and factory management, back office document and vendor management, to applications that improve sales responsiveness. In addition, our products help operations teams compose, automate and exchange documents based on content from existing back-office systems to produce interactive business communications, while maintaining compliance and reducing production costs.
•Human Resources and Legal. Human resources, or HR, legal departments, and law firms use our applications to improve collaboration and operational control and streamline routine processes. We offer applications that automate document management and workflow including, contracts, records, and other documentation that require enhanced security and compliance requirements. Other applications support HR-specific workflows including onboarding, employee management, termination, HR support, and time and expense management.
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Through a series of acquisitions and integrations, we have built a diverse family of software applications under the Upland brand. Our total revenue increased from $291.8 million to $302.0 million from the year ended December 31, 2020 compared to the year ended December 31, 2021, representing a 4% period-over-period growth rate. Our subscription and support revenue increased from $277.5 million to $287.6 million, from the year ended December 31, 2020 compared to the year ended December 31, 2021, representing a 4% period-over-period growth rate. See “Note 13 Revenue Recognition”, in the notes to the consolidated financial statements for more information regarding our revenue as it relates to domestic and foreign operations.
To support continued growth, we intend to continue to pursue acquisitions within our core cloud offerings of complementary technologies and businesses. We expect that this will expand our customer base and market access, resulting in increased benefits of scale. Consistent with our growth strategy, we have made a total of 29 acquisitions in the 10 years ending December 31, 2021.
The operating platform we use to transform acquired companies in order to maintain a consistently high level of operating performance is called UplandOne. This platform consists of six key areas:
•High-Touch Customer Success Program. We have institutionalized a set of unique customer commitments and deliverables we call the Upland Customer Success Program that includes onboarding and training, a dedicated customer success representative, upgraded success plans, quarterly virtual user conferences, periodic executive outreach, and Net Promoter Score, or NPS, surveys, and an ongoing customer feedback loop.
•Quality-Focused R&D. Our approach to R&D at Upland is straight-forward: prioritize customer need, leverage a metrics-driven agile approach with visibility and accountability, and deploy up-to-date development systems to ensure quality is built into every step of development.
•Customer-Driven Innovation. Customer feedback is at the heart of the Upland customer experience. New features are added and prioritized in our product roadmaps, and then fine-tuned, based on direct customer input. Requests from our Premier Success Plan customers are given additional priority weighting for new features and minor issue resolution. Product feedback outlets include customer success account management, quarterly virtual user conferences, annual customer advisory boards, and Upland’s online communities.
•Expert Professional Services. Through our Professional Services organization, Upland is committed to delivering the most value from a customer’s Upland investment in the shortest possible time. Once we engage on a project, we dedicate a team to the planning, configuration, integration, launch, administration, and maintenance of the application.
•24x7 Global Support. Upland Global support includes: prioritized issue escalation and resolution; online and phone support, 24/7/365; access to a community to share and discuss best practices, support tips, training materials, and custom reports; a knowledge-base with alerts, service recommendations, and troubleshooting content; unlimited case submissions and real-time case updates; and full support across the globe. For customers that have more urgent support requirements, Upland Premier Success Plans provide enhanced response times and availability for the most severe support requests.
•Enterprise Cloud Platform. Upland’s products run on an enterprise-class cloud environment - delivering power, reliability, and flexibility. We utilize Amazon Web Services (“AWS”) and Microsoft Azure (“Azure”) for our cloud-based products and move acquired products to either AWS or Azure in connection with our acquisition integration program. Upland’s cloud technology gives customers the freedom from legacy applications without having to compromise security or scalability. Our applications are scalable and can support large deployments while maintaining required performance levels.
Our operating results in a given period can fluctuate based on the mix of subscription and support, perpetual license and professional services revenue. For the years ended December 31, 2021, 2020 and 2019, our subscription and support revenue represented 95%, 95% and 92% of total revenue, respectively. Historically, we have sold certain of our applications under perpetual licenses, which also are paid in advance. For the years ended December 31, 2021, 2020 and 2019, our perpetual license revenue represented 1%, 1% and 3% of total revenue, respectively. The support agreements related to our perpetual licenses are typically one-year in duration and entitle the customer to support and unspecified upgrades. The revenue related to such support agreements is included as part of our subscription and support revenue. Professional services revenue consists of fees related to implementation, data extraction, integration and configuration, and training on our applications. For the years ended December 31, 2021, 2020 and 2019, our professional services revenue represented 4%, 4% and 5% of total revenue, respectively.
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Our Competitive Strengths
We believe the following competitive strengths are keys to our success:
•Large, diversified customer base. Our customer base is highly diverse and spans a broad array of industries, including financial services, consulting services, technology, manufacturing, media, telecommunications, government, political, non-profit, healthcare, life sciences, retail and hospitality. We service customers of varying size, ranging from large global corporations and government agencies to medium-sized businesses. We have more than 10,000 customers, with no customer representing more than 10% of our revenue.
•Diversified family of cloud applications. We offer a family of cloud-based enterprise work management applications that addresses a broad range of enterprise needs. We believe this benefits our customers as compared to many of our cloud-based competitors who offer only a single point solution for a more limited and discrete need.
•Recurring revenue model with high visibility. We believe we have an attractive operating model due to the recurring nature of our subscription revenue, which results in greater visibility and predictability of future revenue and enhances our ability to effectively manage our business. In addition, the cloud-based nature of our model accommodates significant additional business volume with limited incremental costs, providing us with opportunities to improve our operating margins.
•Proven M&A capability. We have a proven ability to successfully identify, acquire, and integrate complementary businesses to grow our company, as evidenced by the 29 acquisitions we have completed in the 10 years ending December 31, 2021. We believe that our acquisition experience and strategy give us a competitive advantage in identifying additional opportunities to expand our family of software applications to better serve our customers.
•Experienced, proven management team. Our management team has significant operating experience and previously occupied key leadership roles at both private and public companies. In addition, our management’s extensive knowledge of the industry and experience in building businesses has enabled us to establish a leading position within the enterprise software market.
•Cloud-based delivery. We deliver our software applications and functionality primarily through the cloud, with no hardware or software installation required by our customers. This delivery model allows us to provide reliable, cost-effective applications to our customers, add subscribers with minimal incremental effort and deploy new functionality and upgrades quickly and efficiently. We believe our cloud-based delivery model provides us with a competitive advantage over legacy processes and on-premise systems.
•Commitment to customer success. We have a dedicated customer success organization whose mission is to drive adoption, value realization, retention, and loyalty across our customer base. Our focus on enabling our customers’ success is a key reason our annual net dollar retention rate, as defined hereafter in “Item 7. Management's Discussion and Analysis—Key Metrics,” was 94% as of December 31, 2021. Our commitment to customer success has enabled us to expand our footprint within customer organizations and facilitate the ongoing adoption of our enterprise software applications. We utilize NPS methodology to track our progress and drive continuous improvement.
Our Strategy for Growth
We believe the key elements of our strategy for growth are as follows:
▪Acquire complementary software businesses. We intend to continue to pursue acquisitions of complementary technologies, products, and businesses to expand our footprint in target business functions, and to provide access to new markets and increased benefits of scale. Our experienced corporate development team continually monitors a pipeline of potential acquisition candidates. We believe that our acquisition experience and strategy give us a competitive advantage in identifying additional opportunities to expand our portfolio cloud-based applications to better serve our customers. We intend to prioritize acquisitions within the solution categories we currently offer.
▪Improve and enhance applications. We intend to continue to invest in research and development and work closely with our customers to identify and improve applications, features and functionalities that address customer requirements across the enterprise spectrum. We also intend to continue to expand our support for key third party integrations and presence in key partner marketplaces.
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▪Increase sales to existing customers. We believe there is a significant opportunity to expand the adoption of our applications within our existing customer organizations, particularly within divisions or departments that have not previously used our applications. We also intend to cross-sell additional applications to our existing customers, as very few of our customers currently use more than one of our applications. In addition, we intend to add new applications that will address additional functions within the enterprise spectrum. We believe these initiatives will significantly increase the value of our partnership with our customers, further strengthen our competitive position, and drive increased adoption of multiple applications by our customers.
▪Add new customers. We maintain direct sales and marketing capabilities to further grow our customer base. We also maintain indirect sales channels through alliances with strategic partners that can leverage our applications with their complementary services and technologies. In addition, we continue to expand the range of integrations between our software and third-party applications and platforms, which we believe make our applications more attractive to a broader audience of potential customers.
Customers
We service customers ranging from large global corporations and various government agencies as well as small and medium-sized businesses. Our customers operate in a wide variety of industries, including financial services, consulting services, technology, manufacturing, media, telecommunications, government, political, non-profit, healthcare, life sciences, retail and hospitality. For the year ended December 31, 2021, approximately 90% of our recurring revenue was generated from what we consider to be major accounts, those customers with contracted annual recurring revenue of $25,000 or more.
Sales
We sell primarily through a direct sales organization comprised of inside sales and field sales personnel. In addition to our direct sales organization, we have an indirect sales organization that sells to distributors and value-added resellers. We employ a land-and-expand go-to-market strategy. After we demonstrate the value of an initial application to a customer, our sales and account management teams work to expand the adoption of that initial application across the customer, and cross-sell additional applications to address other enterprise work management needs of the customer. Our customer success organization supports our direct sales efforts by managing the post-sale customer lifecycle.
Our subscription agreements are typically sold either on a per-seat basis or on a minimum contracted volume basis with overage fees billed in arrears, depending on the application being sold. Contract terms typically range from one to three years and are prepaid annually in advance.
Marketing
Our marketing activities are designed to build awareness of the Upland brand and the solutions we offer, generate thought leadership, and create demand, resulting in leads and opportunities for our sales organizations. We focus a significant portion of our marketing activities on our existing customers to drive expansion and cross-sell opportunities. Our marketing programs target decision makers and influencers who participate in a buying cycle, including the chief information officer, the chief procurement officer, the chief marketing officer, the chief digital officer, the chief financial officer, the director of process excellence, and other key technology and business managers. Our principal marketing programs include:
▪use of our website to provide information about us and our software applications, as well as educational opportunities for potential customers;
▪field marketing events for customers and prospective customers;
▪participation in, and sponsorship of, executive events, trade shows, and industry events;
▪our online virtual user conferences;
▪integrated digital marketing campaigns, including email, online advertising, blogs, and webinars;
▪public relations, analyst relations, and social media initiatives; and
▪sales representatives who respond to incoming leads to convert them into new sales opportunities.
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Customer Success
Our customer success organization is structured to manage all aspects of our post-sale customer lifecycle. This organization consists of dedicated teams with a mission to drive adoption of our products, value realization, retention, and loyalty across our customer base. Our customer success organization has three core functional areas with strategic focus on customer relationship management:
•Customer Success Management. Our CSM team partners with customers throughout their lifecycle with the Upland family of products to ensure the customer is getting the most out of their technology investment. CSMs are experts in matching use of Upland products to a customer’s individual business context – sometimes bringing in or coordinating across other teams and internal resources where necessary to achieve the customer’s goals.
•Professional Services. Our professional services team provides critical expertise in Upland’s product areas throughout the customer journey. During implementation, this team is responsible for coordinating all activities relating to the implementation, transition, and on-boarding of new customers and assisting new customers with the addition of new products to their accounts. Typical implementation professional services engagements vary in length from a few weeks to several months depending on the size and scope of the engagement and are in addition to services provided under our standard customer agreement and are fee-based. Beyond implementation, this team also provides advisory and consulting services, integration services and configuration change services as a customer’s business needs change over time.
•Customer Support. Our customer support team is conveniently available through multiple channels to help our customers maximize the return on their investment in our technology. We also provide 24/7/365 coverage to help ensure our software products maintain global availability. In addition, our customer support team manages and administers the Upland customer community to provide an outstanding knowledge base and self-service experience.
Our customer success organization manages programs to reinforce the ongoing business value of our applications. These service offerings include:
•Health checks and business reviews where we engage core users and business buyer sponsors to deliver a detailed scorecard and recommendations on driving product adoption and business value.
▪Consumption review and recommendations designed to deliver best practice recommendations for implementation strategy and a roadmap proposal for aligning the system with customers’ evolving process maturity to increase application usage.
▪Premier success plans that provide a bundled services, support, and product experience offering with two tiers (gold and platinum) designed to provide maximum customer value.
▪Executive outreach where we promote open communication between the Upland leadership team, which is fully committed to making sure customers are delighted with their Upland experience, and customer executives.
Technology and Operations
Our cloud-based family of applications utilizes a multi-tenant architecture and our customers access our applications using a secure Internet connection through a standard web browser. Our applications are easy to deploy, highly configurable, scalable, flexible, and secure, and provide our customers with a modern and intuitive user experience.
We have partnered with AWS and Azure to provide the hardware and infrastructure necessary to provide our services to our customers. AWS and Azure facilities provide 24/7/365 security, biometric access controls, redundant networking, power and environmental systems, and monitoring. Upland Software designs and operates the infrastructure architecture with fully redundant subsystems, highly available configurations, and defense in depth security zones.
Our applications are built on highly available and modular architectures that balance customer workloads across multiple servers. This allows us to provide a flexible method for scaling customers without impacting other parts of the architectural environment while maintaining the high levels of uptime our customers require.
Our family of applications offers high levels of security through logical data segregation of each customer’s data from the data of other customers and through limiting access to our platform to only those individuals authorized by our customers. In addition, sensitive customer data is encrypted “at rest” and “in transit” over secure connections to redundant storage in a secondary location.
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We maintain a formal and comprehensive security program designed to help preserve the security and integrity of customer data, protect against security threats or data breaches, and prevent unauthorized access to data.
Competition
The overall markets we serve are rapidly evolving and subject to changing technology, shifting customer needs, and frequent introductions of new applications. The intensity and nature of our competition varies significantly across our range of enterprise applications. We compete against larger enterprise software companies that provide a full suite of Software as a Service, or SaaS, solutions focused on the functional areas we serve or the problems our cloud offerings address. We face competition both from point solution providers, including legacy on-premise enterprise systems, and other cloud-based software vendors that may address one or more of the functional elements of our applications. In addition, we face competition from manual processes and traditional tools, such as paper-based procedures, spreadsheets, and email.
We believe the principal competitive factors in our market include the following:
▪breadth and depth of application functionality;
▪ease of deployment and use of applications;
▪total cost of ownership;
▪levels of customer support satisfaction;
▪brand awareness and reputation;
▪capability for configuration, integration, scalability, and reliability of applications;
▪ability to innovate and respond to customer needs rapidly; and
▪level of integration among applications and with other enterprise systems.
We believe that we compete favorably on these factors. Our ability to remain competitive will largely depend on the strength of our applications, the effectiveness of our sales and marketing efforts, the quality of our customer success organization, and our ability to acquire complementary technologies, products, and businesses to enhance the features and functionality of our applications.
Intellectual Property and Proprietary Rights
We rely on a combination of trademark, copyright, trade secret, and patent laws in the United States and other jurisdictions as well as confidentiality procedures and contractual provisions to protect our intellectual property.
Human Capital
We believe that our ability to attract and retain highly skilled employees is critical to our success. As of December 31, 2021, we had 865 employees, with the majority of our employees located in the United States, Canada, Ireland and the United Kingdom. None of our employees are covered by a collective bargaining agreement. We have never experienced a strike or similar work stoppage, and we consider our relations with our employees to be good. Human capital measures and objectives Upland focuses on in managing its business include the following:
•Recognition of Collaborative Problem Solvers. We have clearly defined company values that highlight the importance of collaboration, clear communication, and solving problems. We have annual awards that celebrate these values with both peer and management nominations at the business unit, function, and company-wide levels.
•Employee Talent Acquisition and Retention. Upland has always supported a “work anywhere” philosophy that allows us to recruit and retain top talent throughout the world. Our team members have the flexibility to work remotely, in an office where available, or a hybrid according to their preferences. Our total compensation and benefits packages are market competitive. Additionally, we maintain a system for providing our personnel an opportunity to express grievances or concerns, which includes an anonymous whistleblower hotline.
•Employee Engagement. Upland surveys team members twice a year to gather feedback on key factors of employee experience, including work/life blend, social connection and learning and development. We have a formal Employee Resource Group (“ERG”) program that fosters the formation of and provides support to employee-led groups dedicated to education and building community for team members with a shared characteristic or interest.
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•Development and Promotion of Leaders. Upland’s high annual growth provides consistent promotion opportunities for our team members. We provide career ladders and development resources for all of our key functions. We provide leadership training for our managers.In addition, team members that join us through regular acquisitions have access to career development and promotion opportunities that would not have been available at their smaller companies. We are in the process of deploying management training as part of our 2021 Development initiatives.
•Creating a Culture of Customer Value and Improvement. Delivering customer value is core to the Upland mission. Our UplandOne operating processes focus on quantifying customer satisfaction through Net Promoter Score (“NPS”) surveys, maintaining customer-driven software roadmaps, and empowering our team members to leverage expert resources from across the company to drive business success for our customers.
We continue to support the health and well-being of our employees, customers, partners and communities during the ongoing global COVID-19 pandemic and during this time of uncertainty. Prior to the wide-spread implementation of stay-at-home measures, approximately 60 percent of our employee and contractor workforce was already remote. As such, we are continuing our remote working arrangements and limiting non-essential business travel for our employees. We are currently evaluating our plans to reopen our facilities and resume business travel for our employees.Our focus remains on the safety and well-being of our employees while maintaining health and safety protocols at each office location.
Available Information
We were incorporated in Delaware in 2010. Our principal executive offices are located at 401 Congress Avenue, Suite 1850, Austin, TX 78701. Our main telephone number is (512) 960-1010. Our website address is www.uplandsoftware.com. Information on our website is not part of this report and should not be relied upon in determining whether to make an investment decision. The inclusion of our website address in this report does not include or incorporate by reference into this report any information on our website.
Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as amended, are available free of charge through our website as soon as reasonably practicable after they are electronically filed with or furnished to the United States Securities and Exchange Commission (the “SEC”). Additionally, the SEC maintains an internet site that contains reports, proxy, information statements, and other information. The address of the SEC’s website is www.sec.gov.
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Item 1A. Risk Factors
Risk Factor Summary
Our business is subject to numerous risks. You should carefully consider the following risks, as well as general economic and business risks, and all of the other information contained in this Annual Report, together with any other documents we file with the SEC. Any of the following risks could have a material adverse effect on our business, operating results and financial condition and cause the trading price of our common stock to decline. Among these important risks are the following:
•We have made, and expect to continue to make, acquisitions as a primary component of our growth strategy. We may not be able to identify suitable acquisition candidates or consummate acquisitions on acceptable terms, or we may be unable to successfully integrate acquisitions, which could disrupt our operations and adversely impact our business and operating results.
•Our growth depends on our ability to retain existing customers and secure additional subscriptions and cross-sell opportunities from existing customers.
•Failure to maintain and expand our sales organization may negatively impact our revenue growth.
•We depend on our senior management team and the loss of one or more key personnel, or an inability to attract and retain highly skilled personnel may impair our ability to grow our business.
•Because we generally recognize revenue from our customers over the terms of their agreements, downturns or upturns in our business may not be immediately reflected in our operating results.
•Our growth and long-term success depends, in part, on our ability to expand our international sales and operations.
•Our sales cycles can be lengthy and variable, which may cause changes in our operating results.
•Perpetual license revenue is unpredictable, and a material increase or decrease in perpetual license revenue from period to period can produce substantial variation in the total revenue and earnings we recognize in a given period.
•We may be forced to change the prices we charge for our applications or the pricing models upon which they are based.
•Any disruption of service at the data centers that house our equipment and deliver our applications or with our hosting service provider could harm our business.
•Actual or perceived security vulnerabilities in our solutions and services or cyberattacks on our networks could have a material adverse impact on our business, results of operations and financial condition.
•Our success depends on our ability to adapt to technological change and continue to innovate.
•If our applications contain serious errors or defects, we may lose revenue and market acceptance, and we may incur costs to defend or settle product-related claims.
•If we fail to integrate our applications with other software applications and competitive or adjacent offerings that are developed by others, or fail to make our applications available on mobile and other handheld devices, our applications may become less marketable, less competitive or obsolete, and our operating results could be harmed.
•Our use of open source software could negatively affect our ability to sell our applications and subject us to possible litigation.
•Certain of our operating results and financial metrics are difficult to predict as a result of seasonality.
•We could incur substantial costs as a result of any claim of infringement of another party’s intellectual property rights.
•We could incur substantial costs in protecting our intellectual property from infringement, and any failure to protect our intellectual property could impair our business.
•We rely on third-party software that is required for the development and deployment of our applications, which may be difficult to obtain or which could cause errors or failures of our applications.
•The markets in which we participate are intensely competitive, and if we do not compete effectively, our operating results could be adversely affected.
•Mergers of, or other strategic transactions by, our competitors could weaken our competitive position or reduce our revenue.
•Our quarterly operating results may fluctuate in the future. As a result, we may fail to meet or exceed the expectations of research analysts or investors, which could cause our stock price to decline, and you may lose part or all of your investment.
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•We may need financing in the future, and any additional financing may result in restrictions on our operations or substantial dilution to our stockholders. We may seek to renegotiate or refinance our loan facility, and we may be unable to do so on acceptable terms or at all.
•Our loan facility contains operating and financial covenants that may restrict our business and financing activities.
•Fluctuations in the exchange rate of foreign currencies could result in losses on currency transactions.
•If we are unable to implement and maintain effective internal controls over financial reporting in the future, investors may lose confidence in the accuracy and completeness of our financial reports, and the market price of our common stock may be negatively affected.
•Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.
•Unanticipated challenges by tax authorities could harm our future results.
•Taxing authorities may successfully assert that we should have collected or, in the future, should collect additional sales and use taxes, and we could be subject to liability with respect to past or future sales, which could adversely affect our results of operations.
•Our operating results could be adversely affected by an increase in our effective tax rate as a result of U.S. and foreign tax law changes, outcomes of current or future tax examinations, or by material differences between our forecasted and actual effective tax rates.
•Tax laws, regulations, and compliance practices are evolving and may have a material adverse effect on our results of operations, cash flows and financial position.
•Taxing authorities could reallocate our taxable income among our subsidiaries, which could increase our consolidated tax liability.
•We are subject to privacy and data security obligations in the United States, United Kingdom and other foreign jurisdictions. Any failure to comply with applicable laws, regulations or contractual obligations may harm our business, results of operations and financial condition. If we are subject to an investigation or suffer a breach, we may incur costs or be subject to forfeitures and penalties that could reduce our profitability.
•Any failure to comply with governmental export and import control laws and regulations could adversely affect our business.
•The uncertainty surrounding the implementation and effect of Brexit may continue to affect our operations and business.
•The ongoing COVID-19 pandemic could adversely affect our business, results of operations and financial condition.
•The market price of our common stock may be volatile, which could result in substantial losses for investors.
•Adverse economic conditions, including those related to the ongoing COVID-19 pandemic, may reduce our customers’ ability to spend money on information technology or enterprise work management software, or our customers may otherwise choose to reduce their spending on information technology or enterprise work management software, which may adversely impact our business.
•If securities or industry analysts do not publish, or cease publishing, research or reports about us, our business or our market, if they publish negative evaluations of our stock, or if we fail to meet the expectations of analysts, the price of our stock and trading volume could decline.
•Because we do not expect to pay any dividends on our common stock for the foreseeable future, our investors may never receive a return on their investment.
•Anti-takeover provisions in our amended and restated certificate of incorporation and our amended and restated bylaws, as well as provisions of Delaware law, might discourage, delay or prevent a change in control of our company or changes in our board of directors or management and, therefore, depress the trading price of our common stock.
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Risks Related to Our Business
We have made, and expect to continue to make, acquisitions as a primary component of our growth strategy. We may not be able to identify suitable acquisition candidates or consummate acquisitions on acceptable terms, or we may be unable to successfully integrate acquisitions, which could disrupt our operations and adversely impact our business and operating results.
A primary component of our growth strategy has been to acquire complementary businesses to grow our company. We have completed 29 acquisitions in the 10 years ending December 31, 2021. We intend to continue to pursue acquisitions of complementary technologies, products, and businesses as a primary component of our growth strategy to enhance the features and functionality of our applications, expand our customer base, provide access to new markets, and increase benefits of scale. Acquisitions involve certain known and unknown risks that could cause our actual growth or operating results to differ from our expectations. Generally, our acquisition activity presents three areas of risk to our business, risks related to: identifying the correct candidates for acquisition, completing the acquisition of identified targets, and integrating acquired companies following closing of the acquisition.
Acquisition Candidate Identification
As we seek to find the best candidates for acquisition:
•we may not be able to identify suitable acquisition candidates or to consummate acquisitions on acceptable terms;
•we may pursue international acquisitions, which inherently pose more risks than domestic acquisitions;
•we compete with others to acquire complementary products, technologies, and businesses, which may result in decreased availability of, or increased price for, suitable acquisition candidates;
•we may not be able to obtain the necessary financing, on favorable terms or at all, to finance any or all of our potential acquisitions;
•we may ultimately fail to consummate an acquisition even if we announce that we plan to acquire a technology, product, or business; and
•acquired technologies, products, or businesses may not perform as we expect, and we may fail to realize anticipated revenue and profits.
In addition, our acquisition strategy may divert management’s attention away from our existing business, resulting in the loss of key customers or employees, and expose us to unanticipated problems or legal liabilities, including responsibility as a successor for undisclosed or contingent liabilities of acquired businesses or assets.
Consummation of Targeted Acquisitions
If we fail to conduct due diligence on our potential targets effectively, we may not identify problems at target companies or fail to recognize incompatibilities or other obstacles to successful integration. Additionally, the consummation of acquisition transactions involves the coordination of multiple personnel within Upland and at the third party partners that assist our acquisition strategy. If we are unable to properly coordinate amongst these groups and individuals, our ability to effectively manage our acquisition activity may be compromised.
Further, in the course of acquiring companies, we may:
•issue common stock that would dilute our current stockholders’ ownership percentage;
•use a substantial portion of our cash resources;
•increase our interest expense, leverage, and debt service requirements if we incur additional debt to pay for an acquisition;
•assume liabilities for which we do not have indemnification from the former owners; further, indemnification obligations may be subject to dispute or concerns regarding the creditworthiness of the former owners;
•record goodwill and non-amortizable intangible assets that are subject to impairment testing and potential impairment charges;
•experience volatility in earnings due to changes in contingent consideration related to acquisition earnout liability estimates;
•incur amortization expenses related to certain intangible assets;
•lose existing or potential contracts as a result of conflict of interest issues;
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•become subject to adverse tax consequences or deferred compensation charges;
•incur large and immediate write-offs; or
•become subject to litigation.
Integration of Acquired Companies
Our inability to successfully integrate future acquisitions could impede us from realizing all of the benefits of those acquisitions and could severely weaken our business operations. The integration process may disrupt our business and, if new technologies, products, or businesses are not implemented effectively, may preclude the realization of the full benefits expected by us and could harm our results or operations. In addition, the overall integration of new technologies, products, or businesses may result in unanticipated problems, expenses, liabilities, and competitive responses. The difficulties of integrating an acquisition include, among other things:
•issues in integrating the target company’s technologies, products, or businesses with ours;
•incompatibility of marketing and administration methods;
•maintaining employee morale and retaining key employees;
•integrating the cultures of both companies;
•preserving important strategic customer relationships;
•consolidating corporate and administrative infrastructures and eliminating duplicative operations; and
•coordinating and integrating geographically separate organizations.
In addition, even if the operations of an acquisition are integrated successfully, we may not realize the full benefits of the acquisition, including the synergies, cost savings, or growth opportunities that we expect. These benefits may not be achieved within the anticipated time frame, or at all.
Our growth depends on our ability to retain existing customers and secure additional subscriptions and cross-sell opportunities from existing customers.
In order to improve our operating results, it is important that our customers renew or upgrade their agreements with us when the applicable contract term expires, and also purchase additional applications from us. Typically contract terms are one to three years for subscription agreements. Upon expiration, customers can renew their existing subscriptions, upgrade their subscriptions to add more seats or additional minimum contracted volume, downgrade their subscriptions to fewer seats or lower minimum contracted volume, or not renew. A renewal constitutes renewing an existing contract for an application under the same terms, and an upgrade includes purchasing additional seats or volume under an existing contract. We may also cross-sell additional applications to existing customers. Our ability to grow revenue and achieve profitability depends, in part, on customer renewals, customer upgrades, and cross-sales to existing customers exceeding downgrades and non-renewals. However, we may not be able to increase our penetration within our existing customer base as anticipated, and we may not otherwise retain subscriptions from existing customers.
Failure to maintain and expand our sales organization may negatively impact our revenue growth.
We sell our applications primarily through a direct sales organization comprised of inside sales and field sales personnel. In addition, we have an indirect sales organization, which sells to distributors and value-added resellers. Growing sales to both new and existing customers is, in part, dependent on our ability to maintain and expand our sales force. Identifying, recruiting and training additional sales personnel requires significant time, expense, and attention. It can take several quarters or longer before our sales representatives are fully-trained and productive. Our business may be adversely affected if our efforts to expand and train our sales organization do not generate a corresponding increase in revenue. In particular, if we are unable to hire, develop, and retain sales personnel, or if our new sales personnel are unable to achieve expected sales productivity levels in a reasonable period of time or at all, our revenue may grow more slowly than expected or decline and our business may be harmed.
We depend on our senior management team and the loss of one or more key personnel, or an inability to attract and retain highly skilled personnel may impair our ability to grow our business.
Our success depends, in part, upon the continued service of our key executive officers, as well as other key personnel. The employment agreements with our executive officers and other key personnel do not require them to continue to work for us for any specified period; therefore, they may terminate employment with us at any time with no advance notice. The replacement of our senior management team or other key personnel likely would involve significant time and costs, and the loss of these employees may significantly delay or prevent the achievement of our business objectives.
We face intense competition for qualified individuals from numerous technology and software companies. If we fail to attract
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and retain suitably qualified individuals, including software engineers and sales personnel, our ability to implement our business plan and develop and maintain our applications could be adversely affected. As a result, our ability to compete would decrease, our operating results would suffer, and our revenue would decrease.
Because we generally recognize revenue from our customers over the terms of their agreements, downturns or upturns in our business may not be immediately reflected in our operating results.
We recognize revenue from customer agreements over the terms of these agreements. As a result, a significant portion of the revenue we report in each quarter is generated from customer agreements entered into during previous periods, which is reflected as deferred revenue on our balance sheet. Consequently, a decline in new or renewed agreements, or a downgrade of renewed agreements to fewer seats or less minimum contracted volume, in any one quarter may not be fully reflected in our revenue in that quarter. Such a decline, however, will negatively affect our revenue in future quarters. Accordingly, the effect of significant downturns in sales and market acceptance of our applications, and potential changes in our pricing policies or rates of renewals, may not be fully reflected in our results of operations until future periods. Similarly, it would be difficult for us to rapidly increase our revenue through new sales, renewals, and upgrades of existing customer agreements, or through additional cross-selling opportunities, in a given period due to the timing of revenue recognition inherent in our subscription model.
Our growth and long-term success depends, in part, on our ability to expand our international sales and operations.
As our operations have expanded, we have established and currently maintain offices in the United States, Australia, Canada, Ireland and the United Kingdom. We have limited experience in operating in foreign jurisdictions and expect to continue to expand our relationship with international customers. Managing a global organization is difficult, time-consuming and expensive. Because of our limited experiences with international operations, any international efforts that we may undertake may not be successful in creating demand for our applications outside of the U.S. or in effectively selling subscriptions to our cloud offerings in all of the international markets that we enter.
Our sales cycles can be lengthy and variable, which may cause changes in our operating results.
Our sales cycle can vary substantially from customer to customer. A number of factors influence the length and variability of our sales cycles, including, for example:
•the need to educate potential customers about the uses and benefits of our applications;
•the duration of the commitment customers make in their agreements with us, which are typically one to three years;
•the discretionary nature of potential customers’ purchasing and budget cycles and decisions;
•the competitive nature of potential customers’ evaluation and purchasing processes;
•the functionality demands of potential customers;
•fluctuations in the enterprise work management needs of potential customers;
•the announcement or planned introduction of new products by us or our competitors; and
•the purchasing approval processes of potential customers.
Our sales cycles can make it difficult to predict the quarter in which revenue from a new customer may first be recognized. We may incur significant sales and marketing expenses and invest significant time and effort in anticipation of a sale that may never occur or only occur in a smaller amount or at a later date than anticipated. Delays inherent to our sales cycles could cause significant variability in our revenue and operating results for any particular period.
Perpetual license revenue is unpredictable, and a material increase or decrease in perpetual license revenue from period to period can produce substantial variation in the total revenue and earnings we recognize in a given period.
Perpetual license revenue reflects the revenue recognized from sales of perpetual licenses relating to our workflow automation and enterprise content management applications to new customers and additional licenses for such applications to existing customers. We generally recognize the license fee portion of the arrangement at the time of delivery. Perpetual licenses of our workflow automation and enterprise content management applications are sold through third-party resellers, and as such, the timing of sales of perpetual licenses is difficult to predict with the timing of recognition of associated revenue unpredictable. A material increase or decrease in the sale of perpetual licenses from period to period could produce substantial variation in the revenue we recognize. Accordingly, comparing our perpetual license revenue on a period to period basis may not be a meaningful indicator of a trend or future results.
We may be forced to change the prices we charge for our applications or the pricing models upon which they are based.
As the markets for our applications mature, or as competitors introduce products or services that compete with ours, including
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bundling competing offerings with additional products or services, we may be unable to attract new customers at the same price or based on the same pricing models as we have used historically. As a result, in the future we may be required to reduce our prices, which could adversely affect our financial performance. In addition, we may offer volume price discounts based on the number of seats purchased by a customer or the number of our applications purchased by a customer, which would effectively reduce the prices we charge for our applications. Also, we may be unable to renew existing customer agreements or enter into new customer agreements at the same prices or upon the same terms that we have historically, which could have a material adverse effect on our financial position.
Any disruption of service at the data centers that house our equipment and deliver our applications or with our hosting service provider could harm our business.
Our reputation and ability to attract, retain, and serve our customer is dependent upon the reliable performance of our computer systems and those of third parties that we utilize in our operations. These systems may be subject to damage or interruption from earthquakes, adverse weather conditions, other natural disasters, terrorist attacks, power loss, telecommunications failures, vendor limitations, computer viruses, computer denial of service attacks, or other attempts to harm these systems. Interruptions in these systems, or with the Internet in general, could make our service unavailable or degraded or otherwise hinder our ability to deliver application data to our customers. Service interruptions, errors in our software, or the unavailability of computer systems used in our operations could diminish the overall attractiveness of our applications to existing and potential customers.
Our servers and those of third parties we use in our operations are vulnerable to computer viruses, physical or electronic break-ins, and similar disruptions. We have implemented security protocols within our applications; however, we have no assurance that our systems are completely secure. Our insurance does not cover expenses related to disruptions to our service or unauthorized access to our applications. Any significant disruption to our service or access to our systems could result in a loss of customers and adversely affect our business and results of operation.
We primarily utilize communications and computer hardware systems operated by third-party Web hosting providers. In addition, we utilize third-party hosting services in connection with our business operations and have migrated most of our applications to AWS or Azure, a third-party hosting platform. Problems faced by us or our third-party hosting providers, including technological or business-related disruptions, could adversely impact the experience of our customers.
Actual or perceived security vulnerabilities in our solutions and services or cyberattacks on our networks could have a material adverse impact on our business, results of operations and financial condition.
Our applications involve the storage and transmission of our customers’ proprietary and confidential information, including personal or identifying information regarding their employees and customers. Any security breaches, unauthorized access, unauthorized usage, virus, or similar breach or disruption could result in loss of confidential information, damage to our reputation, early termination of our contracts, litigation, regulatory investigations, indemnity obligations, or other liabilities. If our security measures or those of our third-party software providers and data centers (such as AWS and Azure) are breached as a result of third-party action, employee error, malfeasance or otherwise, resulting in unauthorized access to customer data, our reputation will be damaged, our business may suffer, and we could incur significant liability. Unauthorized parties may attempt to misappropriate or compromise our confidential information or that of third parties, create system disruptions, product or service vulnerabilities or cause shutdowns. These perpetrators of cyberattacks also may be able to develop and deploy viruses, worms, malware and other malicious software programs that directly or indirectly attack our products, services or infrastructure (including our third party cloud service providers). Because the techniques used to obtain unauthorized access or sabotage systems change frequently and generally are not identified until they are launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures. Any or all of these issues could negatively affect our ability to attract new customers, cause existing customers to elect not to renew or upgrade their subscriptions, result in reputational damage, or subject us to third-party lawsuits, regulatory fines, or other action or liability, which could adversely affect our operating results. In addition, to the extent we are diverting our resources to address and mitigate these vulnerabilities, it may hinder our ability to deliver and support our solutions and customers in a timely manner. Despite our efforts to build secure services, we can make no assurance that we will be able to detect, prevent, timely and adequately address, or mitigate the negative effects of cyberattacks or other security breaches.
Our success depends on our ability to adapt to technological change and continue to innovate.
The overall market for enterprise work management software is rapidly evolving and subject to changing technology, shifting customer needs, and frequent introductions of new applications. Our ability to attract new customers and increase revenue from existing customers will depend, in large part, on our ability to develop or acquire new applications and enhance and improve existing applications. To achieve market acceptance for our applications, we must effectively anticipate and offer applications that meet changing customer demands in a timely manner. Customers may require features and capabilities not
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offered by our current applications. We may experience difficulties that could delay or prevent our development, acquisition, or implementation of new applications and enhancements.
If we are unable to successfully develop or acquire new enterprise work management capabilities and functionality, enhance our existing applications to anticipate and meet customer preferences, sell our applications into new markets, or adapt to changing industry standards in enterprise work management, our revenue and results of operations would be adversely affected.
If our applications contain serious errors or defects, we may lose revenue and market acceptance, and we may incur costs to defend or settle product-related claims.
Complex software applications such as ours often contain errors or defects, particularly when first introduced or when new versions or enhancements are released. Our current and future applications may contain serious defects.
The costs incurred in correcting any material errors or defects might be substantial and could adversely affect our operating results. Although our customer agreements typically contain provisions designed to limit our exposure to certain of the claims above, existing or future laws or unfavorable judicial decisions could negate these limitations. Even if not successful, a breach of warranty or other claim brought against us would likely be a distraction to management, time-consuming and costly to resolve, and could seriously damage our reputation in the marketplace, making it harder for us to sell our applications. Additionally, our errors and omissions insurance may be inadequate or may not be available in the future on acceptable terms, or at all, and our policy may not cover all claims made against us. Further, defending a suit, regardless of its merit, could be costly and divert management’s attention.
If we fail to integrate our applications with other software applications and competitive or adjacent offerings that are developed by others, or fail to make our applications available on mobile and other handheld devices, our applications may become less marketable, less competitive or obsolete, and our operating results could be harmed.
Our applications integrate with a variety of other software applications, and also with competing and adjacent third-party offerings. We need to continuously modify and enhance our platform to adapt to changes in cloud-enabled hardware, software, networking, browser and database technologies. Any failure of our applications to integrate effectively with other software applications and product offerings could reduce the demand for our applications or result in customer dissatisfaction and harm to our business. If we are unable to respond to changes in the applications and tools with which our applications integrate in a cost-effective manner, our applications may become less marketable, less competitive, or obsolete. Competitors may also impede our attempts to create integration between our applications and competitive offerings, which may decrease demand for our applications. In addition, an increasing number of individuals within organizations are utilizing devices other than personal computers, such as mobile phones, tablets and other handheld devices, to access the Internet and corporate resources and to conduct business. If we cannot effectively make our applications available on these devices, we may experience difficulty attracting and retaining customers.
Our use of open source software could negatively affect our ability to sell our applications and subject us to possible litigation.
A portion of our applications incorporate open source software, and we expect to continue to incorporate open source software in the future. Few of the licenses applicable to open source software have been interpreted by courts, and their application to the open source software integrated into our proprietary software may be uncertain. Moreover, we cannot provide any assurance that we have not incorporated additional open source software in our applications in a manner that is inconsistent with the terms of the license or our current policies and procedures. If we fail to comply with these licenses, we may be subject to certain requirements, including requirements that we offer our applications that incorporate the open source software for no cost, that we make available source code for modifications or derivative works we create based upon, incorporating or using the open source software, and that we license such modifications or derivative works under the terms of applicable open source licenses. If an author or other third party that distributes such open source software were to allege that we had not complied with the conditions of one or more of these licenses, we could be required to incur significant legal expenses defending against such allegations and could be subject to significant damages, enjoined from the sale of our applications that contained the open source software, and required to comply with the foregoing conditions, which could disrupt the distribution and sale of some of our applications. In addition, there have been claims challenging the ownership of open source software against companies that incorporate open source software into their products. As a result, we could be subject to suits by parties claiming infringement due to the reliance by our applications on certain open source software. Litigation could be costly for us to defend, have a negative effect on our operating results and financial condition, or require us to devote additional research and development resources to change our applications.
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Certain of our operating results and financial metrics are difficult to predict as a result of seasonality.
We have historically experienced seasonality in terms of when we enter into customer agreements. We sign a significantly higher percentage of agreements with new customers, and renew agreements with existing customers, in the fourth quarter of each calendar year as our customers tend to follow budgeting cycles at the end of the calendar year. Our cash flow from operations has historically been higher in the first quarter of each calendar year than in other quarters. This seasonality is reflected to a much lesser extent, and sometimes is not immediately apparent, in our revenue, due to the fact that we defer revenue recognition. In addition, seasonality may be difficult to observe in our financial results during periods in which we acquire businesses, as such results typically are most significantly impacted by such acquisitions. We expect this seasonality to continue, or possibly increase in the future, which may cause fluctuations in our operating results and financial metrics. If our quarterly operating results or outlook fall below the expectations of research analysts or investors, the price of our common stock could decline substantially.
We could incur substantial costs as a result of any claim of infringement of another party’s intellectual property rights.
In recent years, there has been significant litigation involving patents and other intellectual property rights in our industry. Companies providing software are increasingly bringing and becoming subject to suits alleging infringement of proprietary rights, particularly patent rights, and to the extent we gain greater market visibility, we face a higher risk of being the subject of intellectual property infringement claims. We do not have a significant patent portfolio, which could prevent us from deterring patent infringement claims through our own patent portfolio, and our competitors and others may now and in the future have significantly larger and more mature patent portfolios than we have. The risk of patent litigation has been amplified by the increase in the number of a type of patent holder, which we refer to as a non-practicing entity, whose sole business is to assert such claims and against whom our own intellectual property portfolio may provide little deterrent value. We could incur substantial costs in prosecuting or defending any intellectual property litigation. If we sue to enforce our rights or are sued by a third-party that claims that our applications infringe its rights, the litigation could be expensive and could divert our management resources. Moreover, our acquisition strategy could expose us to additional risk of intellectual property litigation as we acquire new businesses with diverse software offerings and intellectual property assets.
In addition, in most instances, we have agreed to indemnify our customers against claims that our applications infringe the intellectual property rights of third parties. Our business could be adversely affected by any significant disputes between us and our customers as to the applicability or scope of our indemnification obligations to them. Any intellectual property litigation to which we might become a party, or for which we are required to provide indemnification, may require us to do one or more of the following:
•cease selling or using applications that incorporate the intellectual property that we allegedly infringe;
•make substantial payments for legal fees, settlement payments or other costs or damages;
•obtain a license, which may not be available on reasonable terms or at all, to sell or use the relevant technology; or
•redesign the allegedly infringing applications to avoid infringement, which could be costly, time-consuming or impossible.
If we are required to make substantial payments or undertake any of the other actions noted above as a result of any intellectual property infringement claims against us or any obligation to indemnify our customers for such claims, such payments or actions could harm our business.
We could incur substantial costs in protecting our intellectual property from infringement, and any failure to protect our intellectual property could impair our business.
Our success and ability to compete depend, in part, upon our intellectual property. We seek to protect the source code for our proprietary software and other proprietary technology and information under a combination of copyright, trade secrets, and patent law, and we seek to protect our brands through trademark law. Our policy is to enter into confidentiality agreements, or agreements with confidentiality provisions, with our employees, consultants, vendors, and customers, and to control access to our software, documentation, and other proprietary information. Despite these precautions, it may be possible for unauthorized parties to copy our software or other proprietary technology or information, or to develop similar software independently.
Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our applications or to obtain and use information that we regard as proprietary. Policing unauthorized use of our applications is difficult, and we are unable to determine the extent to which piracy of our software exists or will occur in the future. Litigation may be necessary in the future to enforce our intellectual property rights, protect our trade secrets, determine the validity and scope of the proprietary rights of others, or defend against claims of infringement or invalidity. Such litigation could be costly, time-
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consuming, and distracting to management, result in a diversion of resources or the narrowing or invalidation of portions of our intellectual property, and have a material adverse effect on our business, operating results, and financial condition. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims, and countersuits attacking the validity and enforceability of our intellectual property rights or alleging that we infringe the counterclaimant’s own intellectual property. These steps may be inadequate to protect our intellectual property. Third parties may challenge the validity or ownership of our intellectual property, and these challenges could cause us to lose our rights, in whole or in part, to such intellectual property or narrow its scope such that it no longer provides meaningful protection. We will not be able to protect our intellectual property if we are unable to enforce our rights or if we do not detect unauthorized use of our intellectual property. Despite our precautions, it may be possible for unauthorized third parties to copy our products and use information that we regard as proprietary to create products and services that compete with ours. Some license provisions protecting against unauthorized use, copying, transfer, and disclosure of our applications may be unenforceable under the laws of certain jurisdictions and foreign countries. Further, the laws of some countries do not protect proprietary rights to the same extent as the laws of the United States. To the extent we expand our international activities, our exposure to unauthorized copying, transfer, and use of our applications and proprietary technology or information may increase.
There can be no assurance that our means of protecting our proprietary rights will be adequate or that our competitors will not independently develop similar technology. If we fail to meaningfully protect our intellectual property, our business, brands, operating results and financial condition could be materially harmed.
We rely on third-party software that is required for the development and deployment of our applications, which may be difficult to obtain or which could cause errors or failures of our applications.
We rely on software licensed from or hosted by third parties to offer our applications. In addition, we may need to obtain licenses from third parties to use intellectual property associated with the development of our applications, which might not be available to us on acceptable terms, or at all. Any loss of the right to use any software required for the development, maintenance, and delivery of our applications could result in delays in the provision of our applications until equivalent technology is either developed by us or, if available, is identified, obtained and integrated, which could harm our business. Any errors or defects in third-party software could result in errors or a failure of our applications, which could harm our business.
Market Risks
The markets in which we participate are intensely competitive, and if we do not compete effectively, our operating results could be adversely affected.
The overall market for enterprise work management software is rapidly evolving and subject to changing technology, shifting customer needs and frequent introductions of new applications. The intensity and nature of our competition varies significantly across our family of enterprise work management software applications. Many of our competitors and potential competitors are larger and have greater brand name recognition, longer operating histories, larger marketing budgets, and significantly greater resources than we do. Some of our smaller competitors may offer applications on a stand-alone basis at a lower price than our price due to lower overhead or other factors, while some of our larger competitors may offer applications at a lower price in an attempt to cross-sell additional products in the future or retain a customer using a different application.
We believe there are a limited number of direct competitors that provide a comprehensive enterprise work management software offering. However, we face competition both from point solution providers, including legacy on-premise enterprise systems, and other cloud-based work management software vendors that may address one or more of the functional elements of our applications, but are not designed to address a broad range of enterprise work management needs. In addition, we face competition from manual processes and traditional tools, such as paper-based techniques, spreadsheets, and email.
If our competitors’ products, service, or technologies become more accepted than our enterprise work management applications, if they are successful in bringing their products or services to market earlier than ours, or if their products or services are more technologically capable than ours, our revenues could be adversely affected.
Mergers of, or other strategic transactions by, our competitors could weaken our competitive position or reduce our revenue.
If one or more of our competitors were to merge or partner with another of our competitors, the change in the competitive landscape could adversely affect our ability to compete effectively. In order to take advantage of customer demand for cloud-based software applications, vendors of legacy systems are expanding their cloud-based enterprise workplace management applications through acquisitions and internal development. A potential result of such expansion is that certain of our current or potential competitors may be acquired by third parties with greater available resources and the ability to further invest in
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product improvements and initiate or withstand substantial price competition. Our competitors also may establish or strengthen cooperative relationships with our current or future value-added resellers, third-party consulting firms or other parties with whom we have relationships, thereby limiting our ability to promote our applications. Disruptions in our business caused by these events could reduce our revenue.
Our quarterly operating results may fluctuate in the future. As a result, we may fail to meet or exceed the expectations of research analysts or investors, which could cause our stock price to decline, and you may lose part or all of your investment.
Our quarterly operating results may fluctuate as a result of a variety of factors, many of which are outside of our control. Accordingly, the results of any one quarter may not fully reflect the underlying performance of our business and should not be relied upon as an indication of future performance. If our quarterly operating results or outlook fall below the expectations of research analysts or investors, the price of our common stock could decline substantially.
Financial Risks
We may need financing in the future, and any additional financing may result in restrictions on our operations or substantial dilution to our stockholders. We may seek to renegotiate or refinance our loan facility, and we may be unable to do so on acceptable terms or at all.
We have funded our operations since inception primarily through equity financings, cash from operations, and cash available under our loan facility. We may need to raise funds in the future, for example, to expand our business, acquire complementary businesses, develop new technologies, respond to competitive pressures, or react to unanticipated situations. We may try to raise additional funds through public or private financings, strategic relationships, or other arrangements. Our ability to obtain debt or equity funding will depend on a number of factors, including market conditions, our operating performance, and investor interest. Additional funding may not be available to us on acceptable terms or at all. If adequate funds are not available, we may be required to reduce expenditures, including curtailing our growth strategies, reducing our product-development efforts, or foregoing acquisitions. If we succeed in raising additional funds through the issuance of equity or convertible securities, it could result in substantial dilution to existing stockholders. If we raise additional funds through the issuance of debt securities or preferred stock, these new securities would have rights, preferences, and privileges senior to those of the holders of our common stock. In addition, any debt financing obtained by us in the future or issuance of preferred stock could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. Additionally, we may need to renegotiate the terms of our loan facility, and our lender may be unwilling to do so, or may agree to such changes subject to additional restrictive covenants on our operations and ability to raise capital.
Our loan facility contains operating and financial covenants that may restrict our business and financing activities.
Our facility is comprised of $540.0 million in original principal term loans and a $60.0 million revolving credit facility.
Our obligations under the loan facility are secured by a security interest in substantially all of our assets and assets of the co-borrowers’ and of any guarantors, including intellectual property. The terms of the credit facility limits, among other things, our ability to
•Incur additional indebtedness or guarantee indebtedness of others;
•Create liens on their assets;
•Make investments, including certain acquisitions;
•Enter into mergers or consolidations;
•Dispose of assets;
•Pay dividends and make other distributions on the Company’s capital stock, and redeem and repurchase the Company’s capital stock;
•Enter into transactions with affiliates; and
•Prepay indebtedness or make changes to certain agreements.
Furthermore, the loan facility requires us and our subsidiaries to comply with certain financial covenants if greater than 35% of revolving credit facility is drawn. The operating and other restrictions and covenants in the loan facility, and in any future financing arrangements that we may enter into, may restrict our ability to finance our operations, engage in certain business activities, or expand or fully pursue our business strategies, or otherwise limit our discretion to manage our business. Our ability to comply with these restrictions and covenants may be affected by events beyond our control, and we may not be able
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to meet those restrictions and covenants. A breach of any of the restrictions and covenants could result in a default under the loan facility or any future financing arrangements, which could cause any outstanding indebtedness under the loan facility or under any future financing arrangements to become immediately due and payable, and result in the termination of commitments to extend further credit.
Fluctuations in the exchange rate of foreign currencies could result in losses on currency transactions.
Our customers are generally invoiced in the currency of the country in which they are located. In addition, we incur a portion of our operating expenses in foreign currencies, including Australian dollars, British pounds, Canadian dollars, Euros and Israeli New Shekels, and in the future, as we expand into other foreign countries, we expect to incur operating expenses in other foreign currencies. As a result, we are exposed to foreign exchange rate fluctuations as the financial results of our international operations and our revenue and operating results could be adversely affected. We have not previously engaged in foreign currency hedging. If we decide to hedge our foreign currency exchange rate exposure, we may not be able to hedge effectively due to lack of experience, unreasonable costs, or illiquid markets.
If we are unable to implement and maintain effective internal controls over financial reporting in the future, investors may lose confidence in the accuracy and completeness of our financial reports, and the market price of our common stock may be negatively affected.
As a public company, we are required to maintain internal controls over financial reporting and to report any material weaknesses in such internal controls. Section 404 of the Sarbanes-Oxley Act requires that we evaluate and determine the effectiveness of our internal controls over financial reporting and that our independent registered public accounting firm issue an attestation report annually regarding the effectiveness of our internal control over financial reporting. We have identified material weaknesses in our internal controls over financial reporting in the past and if we have a material weakness in our internal controls over financial reporting, we may not detect errors on a timely basis, and our financial statements may be materially misstated. We may need additional finance and accounting personnel with certain skill sets to assist us with the reporting requirements we will encounter as a public company and to support our anticipated growth. In addition, implementing internal controls may distract our officers and employees, entail substantial costs to modify our existing processes, and take significant time to complete.
If we identify material weaknesses in our internal controls over financial reporting, if we are unable to assert that our internal controls over financial reporting are effective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal controls over financial reporting, investors may lose confidence in the accuracy and completeness of our financial reports; the market price of our common stock could be negatively affected; and we could become subject to investigations by the stock exchange on which our securities are listed, the SEC, or other regulatory authorities, which could require additional financial and management resources.
Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.
As of December 31, 2021 the Company had total net operating loss carryforwards of approximately $365.8 million consisting of $327.3 million and $38.5 million related to the U.S federal and foreign net operating loss carryforwards, respectively. In addition, as of December 31, 2021, the Company had research and development credit carryforwards of approximately $4.4 million. The U.S. federal net operating loss and credit carryforwards will expire beginning in 2022, if not utilized. The U.S. federal net operating loss and credit carryforwards will expired beginning in 2022, if not utilized, with $36.6 million of net operating losses carrying forward indefinitely. The entirety of the $38.5 million of the foreign net operating loss carryforwards carry forward indefinitely.
Under Sections 382 and 383 of the Internal Revenue Code of 1986, as amended, or the Code, if a corporation undergoes an “ownership change,” the corporation’s ability to use its pre-change net operating loss carryforwards and other pre-change tax attributes, such as research tax credits, to offset its post-change income and taxes may be limited. In general, an “ownership change” occurs if there is a cumulative change in our ownership by “5% shareholders” that exceeds 50 percentage points over a rolling three-year period. Similar rules apply under state tax laws. Based on analysis of acquired net operating losses and credits, utilization of our net operating losses and research and development credits will be subject to annual limitations. The annual limitation will result in the expiration of $155.0 million of federal net operating losses and $4.4 million of research and development credit carryforwards before utilization. In the event that it is determined that we have in the past experienced additional ownership changes, or if we experience one or more ownership changes as a result of future transactions in our stock, then we may be further limited in our ability to use our net operating loss carryforwards and other tax assets to reduce taxes owed on the net taxable income that we earn. Any such limitations on the ability to use our net operating loss carryforwards and other tax assets could adversely impact our business, financial condition, and operating results.
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Legal and Regulatory Risks
Unanticipated challenges by tax authorities could harm our future results.
We are subject to income taxes in the United States and various non-U.S. jurisdictions. We may be subject to income tax audits by various tax jurisdictions throughout the world, many of which have not established clear guidance on the tax treatment of cloud-based companies. The application of tax laws in such jurisdictions may be subject to diverging and sometimes conflicting interpretations by tax authorities in these jurisdictions. Although we believe our income tax liabilities are reasonably estimated and accounted for in accordance with applicable laws and principles, an adverse resolution of one or more uncertain tax positions in any period could have a material impact on the results of operations for that period.
Taxing authorities may successfully assert that we should have collected or, in the future, should collect additional sales and use taxes, and we could be subject to liability with respect to past or future sales, which could adversely affect our results of operations.
We have not historically filed sales and use tax returns or collected sales and use taxes in all jurisdictions in which we have sales, based on our belief that such taxes are not applicable. While operations of these jurisdictions are managed based on our interpretation of local regulations, a change in regulations or interpretations of legislation may result in an obligation that we are not aware of. Taxing authorities may seek to impose such taxes on us, including for past sales, which could result in penalties and interest. Any such tax assessments may adversely affect the results of our operations.
Our operating results could be adversely affected by an increase in our effective tax rate as a result of U.S. and foreign tax law changes, outcomes of current or future tax examinations, or by material differences between our forecasted and actual effective tax rates.
Our operations are subject to income and transaction taxes in the United States and in multiple foreign jurisdictions, with a significant amount of our foreign earnings generated by our subsidiaries organized in Australia, Canada, Ireland, Israel and the United Kingdom. Any significant change in our future effective tax rates could adversely impact our results of operations for future periods. Our future effective tax rates could be adversely affected by the following:
•changes in tax laws or the interpretation of such tax laws as applied to our business and corporate structure in the United States, Australia, Canada, Ireland, Israel, the United Kingdom, or other international locations where we have operations;
•earnings being lower than anticipated in countries where we are taxed at lower rates as compared to the United States federal and state statutory tax rates;
•an increase in expenses not deductible for tax purposes;
•changes in tax benefits from stock-based compensation;
•changes in the valuation allowance against our deferred tax assets;
•changes in judgment from the evaluation of new information that results in a recognition, derecognition or change in measurement of a tax position taken in a prior period;
•increases to interest or penalty expenses classified in the financial statements as income taxes;
•new accounting standards or interpretations of such standards; or
•results of examinations by the Internal Revenue Service (“IRS”), state, and foreign tax or other governmental authorities.
The IRS and other tax authorities regularly examine our income tax returns and other non-income tax returns, such as payroll, sales, use, value-added, net worth or franchise, property, goods and services, consumption, import, stamp, and excise taxes, in both the United States and foreign jurisdictions. The calculation of our provision for income taxes and our accruals for other taxes requires us to use significant judgment and involves dealing with uncertainties in the application of complex tax laws and regulations. In determining the adequacy of our provision for income taxes, we regularly assess the potential settlement outcomes resulting from income tax examinations. However, the final outcome of tax examinations, including the total amount payable or the timing of any such payments upon resolution of these issues, cannot be estimated with certainty. In addition, we cannot be certain that such amount will not be materially different from the amount that is reflected in our historical income tax provisions and accruals for other taxes. Should the IRS or other tax authorities assess additional taxes, penalties or interest as a result of a current or a future examination, we may be required to record charges to operations in future periods that could have a material impact on our results of operations, financial position or cash flows in the applicable period or periods.
Forecasts of our annual effective tax rate are complex and subject to uncertainty because our income tax position for each year combines the effects of estimating our annual income or loss, the mix of profits and losses earned by us and our
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subsidiaries in tax jurisdictions with a broad range of income tax rates, as well as benefits from available deferred tax assets, the impact of various accounting rules, our interpretations of changes in tax laws and results of tax audits. Forecasts of our annual effective tax rate do not include the anticipation of future tax law changes. In addition, we report for certain tax benefits from stock-based compensation in the period the stock compensation vests or is settled, which may cause increased variability in our quarterly effective tax rates. If there were a material difference between forecasted and actual tax rates, it could have a material impact on our results of operations.
Tax laws, regulations, and compliance practices are evolving and may have a material adverse effect on our results of operations, cash flows and financial position.
The U.S. Tax Cuts and Jobs Act (the “Tax Act”) was enacted in December 2017, and significantly affected U.S. tax law by changing how the United States imposes income tax on multinational corporations. The U.S. Department of Treasury has broad authority to issue regulations and interpretative guidance that may significantly impact how we will apply the law and impact our results of operations. As additional interpretative guidance is issued by the applicable authorities, we may need to revise our provision (benefit) for income taxes in future periods. These revisions could materially affect our results of operations, cash flow and financial position.
Tax laws, regulations, and administrative practices in various jurisdictions are evolving and may be subject to significant changes due to economic, political and other conditions. There are many transactions that occur during the ordinary course of business for which the ultimate tax determination is uncertain, and significant judgment is required in evaluating and estimating our provision and accruals for these taxes. Governments are increasingly focused on ways to increase tax revenues, particularly from multinational corporations, which may lead to an increase in audit activity and harsher positions taken by tax authorities. We are currently subject to tax audits in various jurisdictions and these jurisdictions may assess additional tax liabilities against us.
The Organisation for Economic Co-operation and Development (“OECD”), an international association of countries, including the United States, released the final reports from its Base Erosion and Profit Shifting (“BEPS”) Action Plans, which aim to standardize and modernize global tax policies. The BEPS Action Plans propose revisions to numerous tax rules, including country-by-country reporting, permanent establishment, hybrid entities and instruments, transfer pricing, and tax treaties. The BEPS Action Plans have been or are being enacted by countries where we have operations. The European Commission (“EC”) has conducted investigations in multiple countries focusing on whether local country tax rulings provide preferential tax treatment that violates European Union state aid rules and concluded that certain countries, including Ireland, have provided illegal state aid in certain cases. The EC and OECD have also been evaluating new rules on the taxation of the digital economy to provide greater taxing rights to jurisdictions where customers or users are located and to address additional base erosion and profits shifting issues. In addition, many countries have recently introduced new laws or proposals to tax digital transactions. These developments in tax laws and regulations, and compliance with these rules, could have a material adverse effect on our operating results, financial position and cash flows.
Taxing authorities could reallocate our taxable income among our subsidiaries, which could increase our consolidated tax liability.
We conduct integrated operations internationally through subsidiaries in various tax jurisdictions pursuant to transfer pricing arrangements between our subsidiaries and between our subsidiaries and us. If two or more affiliated companies are located in different countries, the tax laws or regulations of each country generally require that transfer prices be the same as those between unrelated companies dealing at arms’ length and that contemporaneous documentation is maintained to support the transfer prices. While we believe that we operate in compliance with applicable transfer pricing laws and intend to continue to do so, our transfer pricing procedures are not binding on applicable tax authorities. If tax authorities in any of these countries were to successfully challenge our transfer prices as not reflecting arms’ length transactions, they could require us to adjust our transfer prices and thereby reallocate our income to reflect these revised transfer prices, which could result in a higher tax liability to us. Such reallocations may subject us to interest and penalties that would increase our consolidated tax liability, and could adversely affect our financial condition, results of operations, and cash flows.
We are subject to privacy and data security obligations in the United States, United Kingdom and other foreign jurisdictions. Any failure to comply with applicable laws, regulations or contractual obligations may harm our business, results of operations and financial condition. If we are subject to an investigation or suffer a breach, we may incur costs or be subject to forfeitures and penalties that could reduce our profitability.
We are subject to privacy and data security laws and regulations that impose obligations in connection with the collection, processing and use of personal data. Federal and state laws or proposed laws impose limits on, or requirements regarding, the collection, distribution, use, security and storage of personally identifiable information (“PII”) of individuals. We see increased regulation of data privacy and security, including the adoption of more stringent subject matter specific state laws
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in the United States. For example, in 2018, California enacted the California Consumer Privacy Act (“CCPA”), which became effective on January 1, 2020. The CCPA gives California residents expanded rights to access and delete their personal information, opt out of certain personal information sharing, and receive detailed information about how their personal information is used. The CCPA provides for civil penalties for violations, as well as a private right of action for data breaches that is expected to increase data breach litigation. The CCPA may increase our compliance costs and potential liability. Some observers have noted that the CCPA could mark the beginning of a trend toward more stringent state privacy legislation in the United States, which could increase our potential liability and adversely affect our business.
We also may be bound by contractual obligations relating to our collection, use and disclosure of personal data or may find it necessary or desirable to join industry or other self-regulatory bodies or other privacy or security related organizations that require compliance with their rules pertaining to privacy and data protection.
Any failure or perceived failure by us, our products to comply with new or existing U.S. privacy or data security laws, regulations, policies, industry standards or contractual or legal obligations, or any security incident that results in the unauthorized access to, or acquisition, release or transfer of, PII or other customer data may result in governmental investigations, inquiries, enforcement actions and prosecutions, private litigation, fines and penalties, adverse publicity or potential loss of business.
Any failure to comply with governmental export and import control laws and regulations could adversely affect our business.
We are subject to governmental export and import controls that could impair our ability to compete in international markets due to licensing requirements and subject us to liability if we are not in compliance with applicable laws.
Our applications are subject to export control and import laws and regulations, including the U.S. Export Administration Regulations, U.S. Customs regulations, and various economic and trade sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls. Exports of our applications must be made in compliance with these laws and regulations. If we fail to comply with these laws and regulations, we and certain of our employees could be subject to substantial civil or criminal penalties, including: the possible loss of export or import privileges; fines, which may be imposed on us and responsible employees or managers; and, in extreme cases, the incarceration of responsible employees or managers. Obtaining the necessary authorizations, including any required license, for a particular sale may be time-consuming, is not guaranteed, and may result in the delay or loss of sales opportunities. In addition, changes in our applications or changes in applicable export or import regulations may create delays in the introduction and sale of our applications in international markets, prevent our customers with international operations from deploying our applications, or, in some cases, prevent the export or import of our applications to certain countries, governments, or persons altogether. Any change in export or import regulations, shift in the enforcement or scope of existing regulations, or change in the countries, governments, persons or technologies targeted by such regulations, could also result in decreased use of our applications, or in our decreased ability to export or sell our applications to existing or potential customers with international operations. Any decreased use of our applications or limitation on our ability to export or sell our applications would likely adversely affect our business.
Furthermore, we incorporate encryption technology into certain of our applications. Various countries regulate the import of certain encryption technology, including through import permitting and licensing requirements, and have enacted laws that could limit our ability to distribute our applications or could limit our customers’ ability to implement our applications in those countries. Encrypted applications and the underlying technology may also be subject to export control restrictions. Governmental regulation of encryption technology and regulation of imports or exports of encryption products, or our failure to obtain required import or export approval for our applications, when applicable, could harm our international sales and adversely affect our revenue. Compliance with applicable regulatory requirements regarding the export of our applications, including with respect to new releases of our applications, may create delays in the introduction of our applications in international markets, prevent our customers with international operations from deploying our applications throughout their globally-distributed systems or, in some cases, prevent the export of our applications to some countries altogether.
Moreover, U.S. export control laws and economic sanctions programs prohibit the shipment of certain products and services to countries, governments, and persons that are subject to U.S. economic embargoes and trade sanctions. Even though we take precautions to prevent our applications from being shipped or provided to U.S. sanctions targets, our applications and services could be shipped to those targets or provided by third parties despite such precautions. Any such shipment could have negative consequences, including government investigations, penalties and reputational harm.
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The uncertainty surrounding the implementation and effect of Brexit may continue to affect our operations and business.
Effective January 31, 2020, the U.K. commenced an exit from the E.U. (referred to as Brexit). During the transition period (set to expire on December 31, 2020), the British government will continue to negotiate the terms of the U.K.’s future relationship with the EU. The outcome of these negotiations is uncertain, and we do not know to what extent Brexit will ultimately impact the business and regulatory environment in the U.K., the rest of the E.U., or other countries. Changes impacting our ability to conduct business in the U.K. or other E.U. countries, or changes to the regulatory regime applicable to our operations in those countries may cause disruptions to, and create uncertainty surrounding, our business in the U.K. and E.U., including affecting our relationships with our existing and future customers, suppliers and employees. As a result, Brexit could have an adverse effect on our future business, financial results and operations. Brexit has resulted in significant volatility in global stock market and currency exchange rate fluctuations. The political and economic instability created by Brexit has caused and may continue to cause significant volatility in global financial markets and uncertainty regarding the regulation of data protection in the U.K. Brexit could also have the effect of disrupting the free movement of goods, services, and people between the U.K., the E.U., and elsewhere. The effects of Brexit will depend on any agreements the U.K. makes to retain access to E.U. markets either during the transition period or more permanently. Brexit could lead to legal uncertainty and potentially divergent national laws and regulations as the U.K. determines which E.U. laws to replace or replicate. In particular, it is unclear how the U.K.’s vote to leave the European Union will affect the U.K.’s enactment of the European General Data Protection Regulation, and how data transfers to and from the U.K. will be regulated. Further, uncertainty around these and related issues could lead to adverse effects on the economy of the U.K. and the other economies in which we operate. There can be no assurance that any or all of these events will not have a material adverse effect on our business operations, results of operations and financial condition.
The ongoing COVID-19 pandemic could adversely affect our business, results of operations and financial condition.
In March 2020, the World Health Organization declared the outbreak of COVID-19 a pandemic, which continues to spread throughout the U.S. and the world. The COVID-19 pandemic has resulted in travel restrictions prohibitions of non-essential activities, disruption and shutdown of businesses and greater uncertainty in global financial markets.
We cannot predict the extent to which the COVID-19 pandemic will impact our business or operating results, which is highly dependent on inherently uncertain future developments, including the severity of COVID-19 and the actions taken by governments and private businesses in relation to COVID-19 containment. As our software applications are offered as subscription-based services, the effect of the outbreak may not be fully reflected in our operating results until future periods, if at all. As of the date of this report, we do not yet know the extent of the negative impact on our ability to attract, serve, retain or upsell customers. Furthermore, existing and potential customers may choose to reduce or delay technology spending in response to the coronavirus outbreak, or attempt to renegotiate contracts and obtain concessions, which may materially and negatively impact our operating results, financial condition and prospects.
Adverse economic conditions, including those related to the ongoing COVID-19 pandemic, may reduce our customers’ ability to spend money on information technology or enterprise work management software, or our customers may otherwise choose to reduce their spending on information technology or enterprise work management software, which may adversely impact our business.
Our business depends on the overall demand for information technology and enterprise work management software spend and on the economic health of our current and prospective customers. If worldwide economic conditions become unstable, our existing customers and prospective customers may re-evaluate their decision to purchase our applications. Weak global economic conditions or a reduction in information technology or enterprise work management software spending by our customers could harm our business in a number of ways, including longer sales cycles and lower prices for our applications.
Risks Related to Ownership of Our Common Stock
The market price of our common stock may be volatile, which could result in substantial losses for investors.
The market price of our common stock could be subject to significant fluctuations. Some of the factors that may cause the market price of our common stock to fluctuate include:
•actual or anticipated changes in the estimates of our operating results that we provide to the public, our failure to meet these projections or changes in recommendations by securities analysts that elect to follow our common stock;
•price and volume fluctuations in the overall equity markets from time to time;
•significant volatility in the market price and trading volume of comparable companies;
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•changes in the market perception of enterprise work management software generally or in the effectiveness of our applications in particular;
•disruptions in our services due to computer hardware, software or network problems;
•announcements of technological innovations, new products, strategic alliances or significant agreements by us or by our competitors;
•announcements of new customer agreements or upgrades and customer downgrades or cancellations or delays in customer purchases;
•litigation involving us;
•our ability to successfully consummate and integrate acquisitions;
•investors’ general perception of us;
•recruitment or departure of key personnel;
•sales of our common stock by us or our stockholders;
•fluctuations in the trading volume of our shares or the size of our public float; and
•general economic, legal, industry and market conditions and trends, including those related to the ongoing COVID-19 pandemic, unrelated to our performance.
In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. Because of the potential volatility of our stock price, we may become the target of securities litigation in the future. If we were to become involved in securities litigation, it could result in substantial costs, divert management’s attention and resources from our business and adversely affect our business.
If securities or industry analysts do not publish, or cease publishing, research or reports about us, our business or our market, if they publish negative evaluations of our stock, or if we fail to meet the expectations of analysts, the price of our stock and trading volume could decline.
The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If few analysts commence coverage of us, the trading price of our stock would likely decrease if one or more of the analysts covering our business downgrade their evaluation of our stock, the price of our stock could decline. If one or more of these analysts cease to cover our stock, we could lose visibility in the market for our stock, which in turn could cause our stock price to decline. Furthermore, if our operating results fail to meet analysts’ expectations our stock price would likely decline.
Because we do not expect to pay any dividends on our common stock for the foreseeable future, our investors may never receive a return on their investment.
We do not anticipate that we will pay any cash dividends to holders of our common stock in the foreseeable future. Instead, we plan to retain any earnings to maintain and expand our existing operations. In addition, our ability to pay cash dividends is currently limited by the terms of our existing loan facility, which prohibits our payment of dividends on our capital stock without prior consent, and any future credit facility may contain terms prohibiting or limiting the amount of dividends that may be declared or paid on our common stock. Accordingly, investors must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any return on their investment.
Anti-takeover provisions in our amended and restated certificate of incorporation and our amended and restated bylaws, as well as provisions of Delaware law, might discourage, delay or prevent a change in control of our company or changes in our board of directors or management and, therefore, depress the trading price of our common stock.
Provisions in our certificate of incorporation and bylaws, as amended and restated, will contain provisions that may depress the market price of our common stock by acting to discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which you might otherwise receive a premium for your shares of our common stock. These provisions may also prevent or frustrate attempts by our stockholders to replace or remove members of our board of directors or our management. These provisions include the following:
•our certificate of incorporation provides for a classified board of directors with staggered three-year terms so that not all members of our board of directors are elected at one time;
•directors may be removed by stockholders only for cause;
•our board of directors has the right to elect directors to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on our board of directors;
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•special meetings of our stockholders may be called only by our Chief Executive Officer, our board of directors or holders of not less than the majority of our issued and outstanding capital stock limiting the ability of minority stockholders to take certain actions without an annual meeting of stockholders;
•our stockholders may not act by written consent unless the action to be effected and the taking of such action by written consent are approved in advance by our board of directors and, as a result, a holder, or holders, controlling a majority of our capital stock would generally not be able to take certain actions without holding a stockholders’ meeting;
•our certificate of incorporation prohibits cumulative voting in the election of directors. This limits the ability of minority stockholders to elect director candidates;
•stockholders must provide timely notice to nominate individuals for election to the board of directors or to propose matters that can be acted upon at an annual meeting of stockholders and, as a result, these provisions may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of us; and
•our board of directors may issue, without stockholder approval, shares of undesignated preferred stock, making it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to acquire us.
As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation Law, which limits the ability of stockholders owning in excess of 15% of our outstanding voting stock from engaging in certain business combinations with us.
Any provision of our certificate of incorporation and bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock and could also affect the price that some investors are willing to pay for our common stock. The existence of the foregoing provisions and anti-takeover measures could limit the price that investors might be willing to pay in the future for shares of our common stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that you could receive a premium for your common stock in an acquisition.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
Our principal corporate offices are located in Austin, Texas, where we occupy approximately 9,900 square feet of space under a lease that expires in June 2025. We also lease office facilities domestically, some of which we sublease, located in Massachusetts, Nebraska, North Carolina, Ohio, Texas and Washington. Internationally, we lease office space in Australia, Canada, Ireland, Israel and the United Kingdom. We believe that our properties are generally suitable to meet our needs for the foreseeable future.
Item 3. Legal Proceedings
From time to time, we may become involved in legal proceedings arising in the ordinary course of our business. We are not presently a party to any legal proceedings that we believe would, individually or taken together, have a material adverse effect on our business, operating results, financial condition, or cash flows.
Item 4. Mine Safety Disclosures
Not applicable.
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PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock is traded on the NASDAQ Global Market, or Nasdaq, under the symbol “UPLD”.
As of February 18, 2022, the last reported sales price of our common stock on the Nasdaq Global Market was $17.29 and there were 29 stockholders of record of our common stock, including Broadridge Financial Solutions, Inc., which holds shares of our common stock on behalf of an indeterminable number of beneficial owners.
We have never declared or paid dividends on our common stock. We do not expect to pay dividends on our common stock for the foreseeable future. Instead, we anticipate that all of our earnings will be used for the operation and growth of our business. Any future determination to declare cash dividends would be subject to the discretion of our board of directors and would depend upon various factors, including our results of operations, financial condition and liquidity requirements, restrictions that may be imposed by applicable law and our contracts, and other factors deemed relevant by our board of directors. In addition, the terms of our loan facility currently restrict our ability to pay dividends.
Performance Graph
Notwithstanding any statement to the contrary in any of our filings with the SEC, the following information shall not be deemed “filed” with the SEC or “soliciting material” under the Securities Exchange Act of 1934 and shall not be incorporated by reference into any such filings irrespective of any general incorporation language contained in such filing.
The following graph compares the total cumulative stockholder return on our common stock with the total cumulative return of the Nasdaq Computer Technology Index (the “Computer Technology Index”) and the S&P 500 Composite Index during the period commencing on December 31, 2016 and ending on December 31, 2021. The graph assumes a $100 investment at the beginning of the period in our common stock, the stocks represented in the S&P 500 Composite Index and the stocks represented in Computer Technology Index, and reinvestment of any dividends. The Computer Technology Index is designed to represent a cross section of widely-held U.S. corporations involved in various phases of the computer industry. The Computer Technology Index is market-value (capitalization) weighted, based on the aggregate market value of its 27 component stocks. Historical stock price performance should not be relied upon as an indication of future stock price performance.
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Recent Sales of Unregistered Securities
None.
Issuer Purchases of Equity Securities
None.
Equity Compensation Plan Information
For information regarding securities authorized for issuance under equity compensation plans, see “Part III— Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” of this Annual Report on Form 10-K.
Item 6. Selected Financial Data
Not applicable.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
You should read the following discussion of our financial condition and results of operations in conjunction with the consolidated financial statements and the notes thereto included elsewhere in this Annual Report on Form 10-K. The following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements. Factors that could cause or contribute to these differences include those discussed below and elsewhere in this Annual Report on Form 10-K, particularly in “Item 1A. Risk Factors.”
This section and other parts of this Annual Report on Form 10-K contain forward-looking statements that involve risks and uncertainties. Forward-looking statements may be identified by the use of forward-looking words such as “anticipate,” “believe,” “may,” “will,” “continue,” “seek,” “estimate,” “intend,” “hope,” “predict,” “could,” “should,” “would,” “project,” “plan,” “expect” or the negative or plural of these words or similar expressions, although not all forward-looking statements contain these words. Forward-looking statements are not guarantees of future performance and our actual results may differ significantly from the results discussed in the forward-looking statements. Factors that might cause such differences include, but are not limited to, those discussed in the subsection entitled “Item 1A. Risk Factors” above, which are incorporated herein by reference. The following discussion should be read in conjunction with the consolidated financial statements and notes thereto included in “Item 8. Financial Statements and Supplementary Data” of this Annual Report on Form 10-K. All information presented herein is based on our fiscal calendar. Unless otherwise stated, references in this report to particular years or quarters refer to our fiscal years ended December 31 and the associated quarters of those fiscal years. We assume no obligation to revise or update any forward-looking statements for any reason, except as required by law.
Overview
We provide cloud-based enterprise work management software. We define enterprise work management software as software applications that enable organizations to plan, manage and execute projects and work. Our family of applications enables users to manage their projects, professional workforce and IT investments, automate document-intensive business processes, and effectively engage with their customers, prospects, and community via the web and mobile technologies.
The continued growth of an information-based economy has given rise to a large and growing group of knowledge workers who operate in dynamic work environments as part of geographically dispersed and virtual teams. We believe that manual processes and legacy on- premise enterprise systems are insufficient to address the needs of the modern work environment. In order for knowledge workers to be successful, they need to interact with intuitive enterprise work systems in a collaborative way, including real-time access. Today, legacy processes and systems are being disrupted and replaced by cloud-based enterprise work management software that improves visibility, collaboration and productivity.
In response to these changes, we are providing organizations and their knowledge workers with software applications that better align resources with business objectives and increase visibility, governance, collaboration, quality of customer experience, and responsiveness to changes in the business environment. This results in increased work capacity, higher productivity, better execution, and greater levels of customer engagement. Our applications are easy-to-use, scalable, and offer real-time collaboration for knowledge workers distributed on a local or global scale. Our software applications address diverse enterprise work challenges and our customers currently use our applications in the following functional areas:
•Marketing. Digital marketing, e-commerce and customer service teams use our applications to interact with consumers across multiple channels to acquire new customers, drive product and service utilization, resolve issues, and build brand loyalty. Our applications deliver value to CXM-focused organizations across a variety of use cases including mobile messaging, mobile application marketing, VoC, email marketing, knowledge management and call center productivity. We also offer customer data platform, or CDP, solutions that provide organizations the ability to unify customer data stored across diverse systems to drive more personalized omnichannel campaigns.
•Sales. Sales teams employ our applications to drive growth through deeper customer engagement, reduced sales cycle times, and overall improved collaboration between sales, marketing, and other customer-facing functions. We offer applications that help organizations optimize their sales opportunity and account management processes, coordinate proposal and reference activities, collaborate on the creation and publication of digital content and gain increased control over key sales and marketing workflows, activities and budgets.
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•Contact Center. Customer service and support environments use our applications to enable agents to resolve issues and engage customers. We offer applications that improve customer experience and reduce call volume and cycle times through customer self-service products and VoC technology that captures customer sentiment in real-time. Upland also offers products that improve call center agent productivity by providing more direct access to knowledge and to customer sentiment thereby improving both inbound call outcomes and proactive outbound success. We also provide products that deliver knowledge-based, guided workflows for customer service environments supporting complex products in strict regulatory requirements. Additional solutions help call center leadership to manage agent performance and measure real-time performance relative to call resolution and customer sentiment, improve performance through gamification, and gather agent feedback to keep employee engagement high.
•Project Management. Business leaders and PMOs use our applications to optimize project portfolios, balance capacity against demand, improve financial-based decision making, align execution of projects to strategy across large organizations, and manage the entire project delivery lifecycle. Our applications deliver value to project management across a variety of use cases including continuous improvement, enterprise IT, new product development, and services departments along with industry depth in higher education, public sector and healthcare IT.
•Information Technology. IT departments use our applications to manage a variety of IT activities and resources across the enterprise. Our applications help information technology departments ensure they are delivering against the objectives of the business by helping them select and prioritize the right investments, gain greater control of resource demand and allocation, and track and report benefit realization. Our applications enable executives to gain better insight into IT spending to help prevent cost overruns and understand the nature of consumption.
•Business Operations. Multiple functional departments use our applications to streamline operations and accelerate business performance across their value chains. Upland solutions in this area range from supply chain collaboration and factory management, back office document and vendor management, to applications that improve sales responsiveness. In addition, our products help operations team compose, automate and exchange documents based on content from existing back-office systems to produce interactive business communications, while maintaining compliance and reducing production costs.
•Human Resources and Legal. HR, legal departments, and law firms use our applications to improve collaboration and operational control and streamline routine processes. We offer applications that automate document management and workflow including, contracts, records, and other documentation that require enhanced security and compliance requirements. Other applications support HR-specific workflows including onboarding, employee management, termination, HR support and time and expense management.
We sell our software applications primarily through a direct sales organization comprised of inside sales and field sales personnel. In addition to our direct sales organization, we have an indirect sales organization, which sells to distributors and value-added resellers. We employ a land-and-expand go-to-market strategy. After we demonstrate the value of an initial application to a customer, our sales and account management teams work to expand the adoption of that initial application across the customer, as well as cross-sell additional applications to address other enterprise work management needs of the customer. Our customer success organization supports our direct sales efforts by managing the post-sale customer lifecycle.
Our subscription agreements are typically sold either on a per-seat basis or on a minimum contracted volume basis with overage fees billed in arrears, depending on the application being sold. We service customers ranging from large global corporations and government agencies to small- and medium-sized businesses. We have more than 10,000 customers with over 1,000,000 users across a broad range of industries, including financial services, consulting services, technology, manufacturing, media, telecommunications, government, political, non-profit, healthcare, life sciences, retail and hospitality.
Through a series of acquisitions and integrations, we have established a diverse family of software applications under the Upland brand and in the product solution categories listed above, each of which addresses a specific enterprise work management need. Our revenue has grown from $98.0 million in 2017 to $302.0 million in 2021, representing a cumulative annual growth rate of 33%. During the year ended December 31, 2021 domestic revenue as a percent of total revenue decreased to 71% compared to 74% during the year ended December 31, 2020. See “Note 13 Revenue Recognition” in the notes to the consolidated financial statements for more information regarding our revenue as it relates to domestic and foreign operations.
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Our operating results in a given period can fluctuate based on the mix of subscription and support, perpetual license and professional services revenue. For the years ended December 31, 2021, 2020 and 2019, our subscription and support revenue represented 95%, 95% and 92%, respectively of our total revenue. Historically, we have sold certain of our applications under perpetual licenses, which also are paid in advance. For the years ended December 31, 2021, 2020 and 2019, our perpetual license revenue accounted for 1%, 1% and 3% of our total revenue, respectively. The support agreements related to our perpetual licenses are one-year in duration and entitle the customer to support and unspecified upgrades. The revenue related to such support agreements is included as part of our subscription and support revenue. Professional services revenue consists of fees related to implementation, data extraction, integration and configuration and training on our applications. For the years ended December 31, 2021, 2020 and 2019, our professional services revenue accounted for 4%, 4% and 5%, respectively.
To support continued growth, we intend to pursue acquisitions of complementary technologies, products and businesses. This will expand our product families, customer base and market access, resulting in increased benefits of scale. We will prioritize acquisitions within our current enterprise solution categories as described in “Item 1. Business” herein. Consistent with our growth strategy, we have completed a total of 29 acquisitions in the 10 years ending December 31, 2021.
Acquisitions completed during the years ended December 31, 2021, 2020 and 2019 include the following:
2021 Acquisitions
•Panviva - On June 24, 2021, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Panviva Pty Ltd, an Australian proprietary company (“Panviva”), a cloud-based enterprise knowledge management solution. Revenue recorded since the acquisition date through December 31, 2021 were approximately $3.9 million.
•BlueVenn - On February 28, 2021 the Company entered into an agreement to purchase the shares comprising the entire issued share capital of BlueVenn Group Limited, a company limited by shares organized and existing under the laws of England and Wales (“BlueVenn”), a cloud-based customer data platform. Revenue recorded since the acquisition date through December 31, 2021 were approximately $12.6 million.
•Second Street - On January 19, 2021, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Second Street Media, Inc., a Missouri corporation (“Second Street”), an audience engagement platform. Revenue recorded since the acquisition date through December 31, 2021 were approximately $10.2 million.
2020 Acquisitions
•Localytics - On February 6, 2020, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Char Software, Inc (dba Localytics), a Delaware corporation (“Localytics”), a provider of mobile app personalization and analytics solutions.
2019 Acquisitions
•Postup - On April 18, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of Postup Holdings, LLC, a Texas limited liability company (“Postup Holdings”), and Postup Digital, LLC, a Texas limited liability company (“Postup Digital”), an Austin-based company providing email and audience development solutions for publishing & media brands.
•Kapost - On May 24, 2019, the Company completed of its purchase of the shares comprising the entire issued share capital of Daily Inches, Inc., d/b/a Kapost, a Delaware corporation (“Kapost”), a content operations platform provider for sales and marketing.
•Cimpl - On August 21, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of Cimpl, Inc., a Canadian corporation (“Cimpl”), a cloud-based telecom expense management platform.
•InGenius - On October 1, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of InGenius Software Inc., a Canadian corporation (“InGenius”), a Computer Telephony Integration (CTI) solution for enterprise contact centers.
•Altify - On October 4, 2019, the Company’s wholly owned subsidiary, PowerSteering Software Limited, a limited company incorporated under the laws of England and Wales (“PowerSteering UK”), entered into an agreement to purchase the shares comprising the entire issued share capital of Altify Ireland Limited, a private company limited by shares organized and existing under the laws of Ireland (“Altify”), a customer revenue optimization (CRO) cloud solution for sales and the extended revenue teams.
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COVID-19 Impact
In March 2020, the World Health Organization declared the outbreak of COVID-19 a pandemic, which has created significant economic uncertainty across the globe and has resulted in authorities implementing numerous measures to contain the virus, including travel bans and restrictions, quarantines, shelter-in-place orders, and business limitations and shutdowns. As a result, beginning in the second quarter of 2020, we paused our acquisition activity in order to gauge the overall economic impact of the pandemic and focus on evaluating our pipeline of opportunities. This resulted in a steady decrease in acquisition related expenses during 2020.
The ongoing spread of COVID-19 remains a global pandemic, compounded with the discovery of new COVID-19 variants (such as the Delta and Omicron). However, with the gradual easing of COVID-19 lockdown restrictions globally and progress made in the development and distribution of vaccines and boosters, stability in the markets have continued to improve. As such, the Company gradually picked up acquisition activity in 2021, with the acquisitions of Second Street, BlueVenn and Panviva. In addition, acquisition-related expenses picked up again starting in the first quarter of 2021. These acquisition related expenses will vary quarter to quarter in proportion to the size, timing and complexity of current and future acquisitions.
While we generally have limited exposure to the industry verticals that have been hardest hit by the pandemic (including the travel, transportation, entertainment and retail industries), we have seen continued impact to new bookings and churn in 2021, which we attribute to COVID-19. The persistence of COVID-19 and the preventative measures implemented to help limit the spread of the illness, have impacted, and will continue to impact, our ability to operate our business and may materially and adversely impact our business, financial condition, and results of operations.
We support the health and well-being of our employees, customers, partners and communities. As such, we are continuing our remote working arrangements and limiting non-essential business travel for our employees. We are currently evaluating our plans to reopen our facilities and resume business travel for our employees. We expect that current cash and cash equivalent balances and cash flows generated from operations will be sufficient to meet our domestic and international working capital needs for at least the next 12 months.
Key Metrics
In addition to the GAAP financial measures described in “—Components of Operating Results” below, we regularly review the following key metrics to evaluate and identify trends in our business, measure our performance, prepare financial projections and make strategic decisions (in thousands, except %):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Other Financial Data: | |||||||||||||||||
Annualized recurring revenue value at year-end(1) | $ | 257,056 | $ | 220,535 | $ | 209,700 | |||||||||||
Annual net dollar retention rate(2) | 94 | % | 94 | % | 97 | % | |||||||||||
Adjusted EBITDA(3) | $ | 96,657 | $ | 99,903 | $ | 82,520 | |||||||||||
(1)Annualized recurring revenue value at year-end. We define annualized recurring revenue value (“ARR”) as the value as of December 31 that equals the monthly value of our recurring revenue contracts measured as of December 31 multiplied by 12. This measure excludes the revenue value of uncontracted overage fees, on-demand service fees and certain divested and/or sunseted minor non-strategic customer contracts and related website management and analytics assets (collectively referred to as the “Sunset Assets”). Refer to “Note 3 Acquisitions” and “Note 5 Goodwill and Other Intangible Assets” in the notes to the consolidated financial statements for further discussion.
(2)Annual net dollar retention rate. We define annual net dollar retention rate as of December 31 as the aggregate ARR at December 31 from those customers that were also customers as of December 31 of the prior fiscal year, divided by the aggregate ARR value from all customers as of December 31 of the prior fiscal year. This measure excludes the revenue value of uncontracted overage fees, on-demand service fees and our Sunset Assets.
(3)Adjusted EBITDA. We monitor Adjusted EBITDA to help us evaluate the effectiveness and efficiency of our operations. Adjusted EBITDA is a non-GAAP financial measure. We define Adjusted EBITDA as net income (loss), calculated in accordance with GAAP, plus depreciation and amortization expense, interest expense, net, loss on debt extinguishment, other expense, net, benefit from income taxes, stock-based compensation expense, acquisition-related expense and purchase accounting deferred revenue discount.
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Non-GAAP Financial Measures
Adjusted EBITDA
The following table presents a reconciliation of GAAP Net loss from continuing operations to Adjusted EBITDA for each of the periods indicated (in thousands).
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Net loss | $ | (58,212) | $ | (51,219) | $ | (45,371) | |||||||||||
| Depreciation and amortization expense | 52,928 | 47,164 | 34,621 | ||||||||||||||
| Interest expense, net | 31,626 | 31,529 | 22,313 | ||||||||||||||
| Loss on debt extinguishment | — | — | 2,317 | ||||||||||||||
| Other expense, net | 253 | 111 | 3,240 | ||||||||||||||
| Benefit from income taxes | (8,344) | (4,234) | (6,805) | ||||||||||||||
| Stock-based compensation expense | 53,873 | 41,692 | 25,754 | ||||||||||||||
| Acquisition-related expense | 21,234 | 27,075 | 39,657 | ||||||||||||||
| Purchase accounting deferred revenue discount | 3,299 | 7,785 | 6,794 | ||||||||||||||
| Adjusted EBITDA | $ | 96,657 | $ | 99,903 | $ | 82,520 | |||||||||||
We believe that Adjusted EBITDA provides useful information to management, investors and others in understanding and evaluating our operating results for the following reasons:
•Adjusted EBITDA is widely used by our investors and securities analysts to measure a company’s operating performance without regard to items that can vary substantially from company to company depending upon their financing, capital structures and the method by which assets were acquired;
•Our management uses Adjusted EBITDA in conjunction with GAAP financial measures for planning purposes, in the preparation of our annual operating budget, as a measure of our operating performance, to assess the effectiveness of our business strategies and to communicate with our board of directors concerning our financial performance because Adjusted EBITDA eliminates the impact of items that we do not consider indicative of our core operating performance;
•Adjusted EBITDA provides more consistency and comparability with our past financial performance, facilitates period-to-period comparisons of our operations and also facilitates comparisons with other companies, many of which use similar non-GAAP financial measures to supplement their GAAP results; and
•Adjusted EBITDA should not be considered as an alternative to net loss or any other measure of financial performance calculated and presented in accordance with GAAP.
The use of Adjusted EBITDA as an analytical tool has limitations such as:
•depreciation and amortization are non-cash charges, and the assets being depreciated or amortized, which contribute to the generation of revenue, will often have to be replaced in the future and Adjusted EBITDA does not reflect cash requirements for such replacements; however, much of the depreciation and amortization currently reflected relates to amortization of acquired intangible assets as a result of business combination purchase accounting adjustments, which will not need to be replaced in the future;
•Adjusted EBITDA may not reflect changes in, or cash requirements for, our working capital needs or contractual commitments;
•Adjusted EBITDA does not reflect the potentially dilutive impact of stock-based compensation;
•Adjusted EBITDA does not reflect interest or tax payments that could reduce cash available for use; and,
•other companies, including companies in our industry, might calculate Adjusted EBITDA or similarly titled measures differently, which reduces their usefulness as comparative measures.
Because of these limitations, you should consider Adjusted EBITDA together with other financial performance measures, including various cash flow metrics, net loss and our other GAAP results.
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Components of Operating Results
Revenue
Subscription and support revenue. We derive our subscription revenue from fees paid to us by our customers for use of our cloud-based applications. We recognize the revenue associated with subscription agreements ratably over the term of the agreement as the customer receives and consumes the benefits of the cloud services through the contract period. Our subscription agreements are typically one to three years.
Our support revenue consists of maintenance fees associated with our perpetual licenses and hosting fees paid to us by our customers. Typically, when purchasing a perpetual license, a customer also purchases maintenance for which we charge a fee, priced as a percentage of the perpetual license fee. Maintenance agreements include the right to support and unspecified upgrades. We recognize the revenue associated with maintenance ratably over the term of the contract. In limited instances, at the customer’s option, we may host the software purchased by a customer under a perpetual license on systems at our third-party data centers.
Perpetual license revenue. Perpetual license revenue reflects the revenue recognized from sales of perpetual licenses to new customers and additional perpetual licenses to existing customers. We generally recognize the license fee portion of the arrangement up-front at a point in time when the software is made available to the customer.
Professional services revenue. Professional services revenue consists of fees related to implementation, data extraction, integration and configuration and training on our applications. We generally recognize the revenue associated with these professional services over time as services are performed. Revenues for fixed price services are generally recognized over time applying input methods to estimate progress to completion. Revenues for consumption-based services are generally recognized as the services are performed.
Cost of Revenue
Cost of product revenue. Cost of product revenue consists primarily of hosting costs, personnel and related costs of our customer success and cloud operations teams, including salaries, benefits, bonuses, payroll taxes, stock-based compensation, and allocated overhead, as well as software license fees, internet connectivity, depreciation expenses and pass-through costs directly related to delivering our applications. We expect that cost of revenues may increase in the future depending on the growth rate of our new customers and billings and our need to support the implementation, hosting and support of those new customers. We intend to continue to invest additional resources in expanding the delivery capability of our applications. As we add hosting infrastructure capacity and support personnel in advance of anticipated growth, our cost of product revenue will increase, and if such anticipated revenue growth does not occur, our product gross profit will be adversely affected both in terms of absolute dollars and as a percentage of total revenues in any particular quarterly or annual period. Our cost of product revenue is generally expensed as the costs are incurred.
Cost of professional services revenue. Cost of professional services revenue consists primarily of personnel and related costs, including salaries, benefits, bonuses, payroll taxes, stock-based compensation and allocated overhead, as well as the costs of contracted third-party vendors and reimbursable expenses. As most of our personnel are employed on a full-time basis, our cost of professional services revenue is largely fixed in the short-term, while our professional services revenue may fluctuate, leading to fluctuations in professional services gross profit. We expect that cost of professional services as a percentage of total revenues could fluctuate from period to period depending on the growth of our professional services business, the timing of sales of applications, and any associated costs relating to the delivery of services. Our cost of professional services revenue is generally expensed as costs are incurred.
Operating Expenses
Our operating expenses are classified into five categories: sales and marketing, research and development, general and administrative, depreciation and amortization and acquisition-related expenses. For each category, other than depreciation and amortization, the largest expense component is primarily personnel and related costs, which includes salaries, employee benefit costs, bonuses, commissions, stock-based compensation, and payroll taxes. Operating expenses also include allocated overhead costs for facilities, which are allocated to each department based on relative department headcount. Operating expenses are generally recognized as incurred.
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Sales and marketing. Sales and marketing expenses primarily consist of personnel and related costs for our sales and marketing staff, including salaries, benefits, deferred commission amortization, bonuses, payroll taxes, stock-based compensation and allocated overhead, as well as costs of promotional events, corporate communications, online marketing, product marketing and other brand-building activities. Sales commissions earned by our sales force, and related payroll taxes, are considered incremental and recoverable costs of obtaining a contract with a customer. Deferred commissions and other costs for a particular customer agreement for initial contracts are amortized over the expected life of the customer relationships while deferred commissions related to contract renewals are amortized over average renewal term. Sales commissions, and related payroll taxes, are earned when the initial customer contract is signed and upon any renewal as our obligation to pay a sales commission arises at these times. Sales and marketing expenses may fluctuate as a percentage of total revenues for a variety of reasons including due to the timing of such expenses, in any particular quarterly or annual period.
Research and development. Research and development expenses primarily consist of personnel and related costs of our research and development staff, including salaries, benefits, bonuses, payroll taxes, stock-based compensation, allocated overhead and costs of certain third-party contractors. Research and development costs related to the development of our software applications are generally recognized as incurred. For example, we are parties to a technology services agreement pursuant to which we generally recognize expenses for services as they are received. See “Note 16 Related Party Transactions”, in the notes to the consolidated financial statements for more information regarding how expenses under such agreement are recognized. We have devoted our product development efforts primarily to enhancing the functionality, and expanding the capabilities, of our applications. Investment tax credits are included as a reduction of research and development costs. Investment tax credits are recorded in the year in which the research and development costs of the capital expenditures are incurred, provided that we are reasonably certain that the credits will be received. The investment tax credit must be examined and approved by the tax authorities, and it is possible that the amounts granted will differ from the amounts recorded.
General and administrative. General and administrative expenses primarily consist of personnel and related costs for our executive, administrative, finance, information technology, legal, accounting and human resource staff, including salaries, benefits, bonuses, payroll taxes, stock-based compensation, allocated overhead, professional fees and other corporate expenses. We have recently incurred, and expect to continue to incur, additional expenses as we grow our operations, including potentially higher legal, corporate insurance, accounting and auditing expenses and the additional costs of enhancing and maintaining our internal control environment. General and administrative expenses may fluctuate as a percentage of revenue, and overtime we expect that general and administrative expenses will decrease as a percent of revenue due to operational efficiencies.
Depreciation and amortization. Depreciation and amortization expenses primarily consist of depreciation and amortization of acquired intangible assets as a result of business combination purchase accounting adjustments. The valuation of identifiable intangible assets reflects management’s estimates based on, among other factors, use of established valuation methods. Customer relationships are valued using an income approach, which estimates fair value based on the earnings and cash flow capacity of the subject asset and are amortized over a seven to ten-year period. The value of the trade name intangibles are determined using a relief from royalty method, which estimates fair value based on the value the owner of the asset receives from not having to pay a royalty to use the asset and are amortized over mostly a three-year period. Developed technology is valued using a cost-to-recreate approach and is amortized over a four- to nine-year period.
Acquisition-related expenses. Acquisition-related expenses are typically incurred for up to four quarters after each acquisition, with the majority of these costs being incurred within six to nine months, to transform the acquired business into the Company's unified operating platform. These expenses can vary based on the size, timing and location of each acquisition. These acquisition-related expenses include transaction related expenses such as banker fees, legal and professional fees, insurance costs and deal bonuses. These acquisition-related expenses also include transformational expenses such as severance, compensation for transitional personnel, office lease terminations and vendor cancellations. Generally, if the Company ceased acquisition activity today, within a year, these acquisition-related expenses should no longer be incurred.
Total Other Expense
Total other expense consists primarily of amortization of debt issuance costs over the term of the related term loan, revaluation of contingent consideration, and interest expense on outstanding debt, including amortization of debt issuance costs. We participate in interest rate swap agreements for the purpose of reducing variability in interest rate payments the Company’s term loans. These interest rate swaps fix the Company's interest rate (including the hedge premium) at 5.4% for the term of the Credit Facility (as hereinafter defined in “—Liquidity and Capital Resources—Credit Facility”). In addition,
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gains/losses on divested assets that meet the definition of a business under ASC 805-10, Business Combination—Overall, are included in Total other expense.
Income Taxes
Because we have not generated domestic net income in any period to date, we have recorded a full valuation allowance against our domestic net deferred tax assets, exclusive of tax deductible goodwill. We have historically not recorded any material provision for federal or state income taxes, other than deferred taxes related to tax deductible goodwill and current taxes in certain separate company filing states. The balance of the tax benefit for the years ended December 31, 2021, 2020 and 2019, outside of tax deductible goodwill and current taxes in separate filing states, is related to foreign income taxes, primarily operations of our Australian, Canadian, Ireland, and United Kingdom subsidiaries, and to the release of valuation allowances associated with acquisitions of domestic entities with deferred tax liabilities. Realization of any of our domestic deferred tax assets depends upon future earnings, the timing and amount of which are uncertain. Based on analysis of acquired net operating losses, utilization of our net operating losses will be subject to annual limitations due to the ownership change rules under the Internal Revenue Code of 1986, as amended, or the Code, and similar state provisions. In the event we have subsequent changes in ownership, the availability of net operating losses and research and development credit carryovers could be further limited.
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Results of Operations
Consolidated Statements of Operations Data
The following tables set forth our results of operations for the specified periods, as well as our results of operations for the specified periods as a percentage of revenue. The period-to-period comparisons of results of operations are not necessarily indicative of results for future periods (dollars in thousands, except share and per share data).
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | Percent of Revenue | ||||||||||||||||||||||||||||||
| Revenue: | |||||||||||||||||||||||||||||||||||
| Subscription and support | $ | 287,621 | 95% | $ | 277,504 | 95% | $ | 203,866 | 92% | ||||||||||||||||||||||||||
| Perpetual license | 2,150 | 1% | 1,884 | 1% | 5,738 | 3% | |||||||||||||||||||||||||||||
| Total product revenue | 289,771 | 96% | 279,388 | 96% | 209,604 | 95% | |||||||||||||||||||||||||||||
| Professional services | 12,245 | 4% | 12,390 | 4% | 13,033 | 5% | |||||||||||||||||||||||||||||
| Total revenue | 302,016 | 100% | 291,778 | 100% | 222,637 | 100% | |||||||||||||||||||||||||||||
| Cost of revenue: | |||||||||||||||||||||||||||||||||||
| Subscription and support (1)(2) | 92,168 | 31% | 89,880 | 31% | 61,465 | 28% | |||||||||||||||||||||||||||||
| Professional services and other | 7,285 | 2% | 8,566 | 3% | 7,652 | 3% | |||||||||||||||||||||||||||||
| Total cost of revenue | 99,453 | 33% | 98,446 | 34% | 69,117 | 31% | |||||||||||||||||||||||||||||
| Gross profit | 202,563 | 67% | 193,332 | 66% | 153,520 | 69% | |||||||||||||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||||||||||||||
| Sales and marketing (1) | 55,097 | 18% | 46,077 | 16% | 35,170 | 16% | |||||||||||||||||||||||||||||
| Research and development (1) | 42,693 | 14% | 39,002 | 13% | 29,037 | 13% | |||||||||||||||||||||||||||||
| General and administrative (1) | 76,901 | 25% | 68,072 | 23% | 48,077 | 22% | |||||||||||||||||||||||||||||
| Depreciation and amortization | 41,315 | 14% | 36,919 | 13% | 25,885 | 12% | |||||||||||||||||||||||||||||
| Acquisition-related expenses | 21,234 | 8% | 27,075 | 9% | 39,657 | 17% | |||||||||||||||||||||||||||||
| Total operating expenses | 237,240 | 79% | 217,145 | 74% | 177,826 | 80% | |||||||||||||||||||||||||||||
| Loss from operations | (34,677) | (12)% | (23,813) | (8)% | (24,306) | (11)% | |||||||||||||||||||||||||||||
| Other Expense: | |||||||||||||||||||||||||||||||||||
| Interest expense, net | (31,626) | (10)% | (31,529) | (11)% | (22,313) | (10)% | |||||||||||||||||||||||||||||
| Loss on debt extinguishment | — | —% | — | —% | (2,317) | (1)% | |||||||||||||||||||||||||||||
| Other expense, net | (253) | (1)% | (111) | —% | (3,240) | (2)% | |||||||||||||||||||||||||||||
| Total other expense | (31,879) | (11)% | (31,640) | (11)% | (27,870) | (13)% | |||||||||||||||||||||||||||||
| Loss before benefit from income taxes | (66,556) | (23)% | (55,453) | (19)% | (52,176) | (24)% | |||||||||||||||||||||||||||||
| Benefit from income taxes | 8,344 | 4% | 4,234 | 1% | 6,805 | 4% | |||||||||||||||||||||||||||||
| Net loss | (58,212) | (19)% | (51,219) | (18)% | (45,371) | (20)% | |||||||||||||||||||||||||||||
| Net loss per common share: | |||||||||||||||||||||||||||||||||||
| Loss from continuing operations per common share, basic and diluted (3) | $ | (1.92) | $ | (1.92) | $ | (1.96) | |||||||||||||||||||||||||||||
| Weighted-average common shares outstanding, basic and diluted (3) | 30,295,769 | 26,632,116 | 23,099,549 | ||||||||||||||||||||||||||||||||
(1)Includes stock-based compensation. See table below for stock-based compensation by operating expense line item.
(2)Includes depreciation and amortization of $11.6 million, $10.2 million and $8.7 million in 2021, 2020 and 2019, respectively.
(3)See “Note 8 Net Loss Per Share”, in the notes to the consolidated financial statements included elsewhere in this Annual Report on Form 10-K for a discussion and a reconciliation of historical net loss attributable to common stockholders and weighted average shares outstanding for historical basic and diluted net loss per share calculations.
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Stock-based compensation
The following tables present stock-based compensation included in the respective line items on our Consolidated Statement of Operations:
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| (dollars in thousands) | |||||||||||||||||
| Stock-based compensation: | |||||||||||||||||
| Cost of revenue | $ | 2,088 | $ | 1,951 | $ | 1,000 | |||||||||||
| Research and development | 3,085 | 3,391 | 2,310 | ||||||||||||||
| Sales and marketing | 5,957 | 3,450 | 1,543 | ||||||||||||||
| General and administrative | 42,743 | 32,900 | 20,901 | ||||||||||||||
| Total | $ | 53,873 | $ | 41,692 | $ | 25,754 | |||||||||||
Comparison of Years Ended December 31, 2021 and December 31, 2020
Revenue
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Revenue: | |||||||||||||||||||||||||||||||||||
| Subscription and support | $ | 287,621 | 95% | $ | 277,504 | 95% | $ | 10,117 | 4% | ||||||||||||||||||||||||||
| Perpetual license | 2,150 | 1% | 1,884 | 1% | 266 | 14% | |||||||||||||||||||||||||||||
| Total product revenue | 289,771 | 96% | 279,388 | 96% | 10,383 | 4% | |||||||||||||||||||||||||||||
| Professional services | 12,245 | 4% | 12,390 | 4% | (145) | (1)% | |||||||||||||||||||||||||||||
| Total revenue | $ | 302,016 | 100% | $ | 291,778 | 100% | $ | 10,238 | 4% | ||||||||||||||||||||||||||
Total revenue was $302.0 million in 2021, compared to $291.8 million in 2020, an increase of $10.2 million, or 4%. The acquisitions not fully in the comparative period contributed $27.7 million to the increase after the reduction of $3.3 million purchase accounting deferred revenue discount in 2021. Total Revenue related to Sunset Assets decreased by $1.3 million as a result of decreased sales and marketing focus on those Sunset Assets. Our organic business excludes acquisitions closed during or subsequent to the prior year comparable period and business operations related to Sunset Assets (the “Organic Business”). Therefore, total revenue for the Organic Business decreased by $16.2 million. The year ended December 31, 2020 included $18.2 million of CXM usage revenue from US election-year presidential campaigns in 2020 which did not repeat in 2021.
Subscription and support revenue was $287.6 million in 2021, compared to $277.5 million in 2020, an increase of $10.1 million, or 4%. The acquisitions not fully in the comparative period contributed $26.1 million to the increase in subscription and support revenue after the reduction of $3.3 million purchase accounting deferred revenue discount in 2021. Subscription and support revenue related to our Sunset Assets decreased $1.3 million as a result of decreased sales and marketing focus on those Sunset Assets. Subscription and support revenue for our Organic Business decreased to $243.9 million from a basis of $258.6 million for the year ended December 31, 2020. The year ended December 31, 2020 included $18.2 million of CXM usage revenue from US election-year presidential campaigns in 2020 which did not repeat in 2021.
Perpetual license revenue was $2.2 million in 2021, compared to $1.9 million in 2020, an increase of $0.3 million.
Professional services revenue was $12.2 million in 2021, compared to $12.4 million in 2020, a decrease of $0.2 million, or 1%. The acquisitions not fully in the comparative period contributed to a $1.7 million increase in professional services revenue in 2021. Therefore, professional services revenue from our Organic Business decreased by $1.9 million due primarily to COVID-19 related travel impacts and a higher proportion of expansion bookings versus new bookings which tend to have more professional services associated with them.
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Cost of Revenue and Gross Profit Margin
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Cost of revenue: | |||||||||||||||||||||||||||||||||||
| Subscription and support (1) | $ | 92,168 | 31% | $ | 89,880 | 31% | $ | 2,288 | 3% | ||||||||||||||||||||||||||
| Professional services | 7,285 | 2% | 8,566 | 3% | (1,281) | (15)% | |||||||||||||||||||||||||||||
| Total cost of revenue | 99,453 | 33% | 98,446 | 34% | 1,007 | 1% | |||||||||||||||||||||||||||||
| Gross profit | $ | 202,563 | 67% | $ | 193,332 | 66% | $ | 9,231 | 5% | ||||||||||||||||||||||||||
| (1) Includes depreciation and amortization expense as follows: | |||||||||||||||||||||||||||||||||||
| Depreciation | $ | 30 | —% | $ | 170 | —% | $ | (140) | (82)% | ||||||||||||||||||||||||||
| Amortization | $ | 11,583 | 4% | $ | 10,075 | 3% | $ | 1,508 | 15% | ||||||||||||||||||||||||||
Cost of subscription and support revenue was $92.2 million in 2021, compared to $89.9 million in 2020, an increase of $2.3 million, or 3%. The acquisitions not fully in the comparative period contributed $8.7 million to the increase to cost of subscription and support revenue, primarily related to costs associated with the delivery of the Localytics, Second Street, BlueVenn and Panviva products. Cost of subscription and support revenue related to our Sunset Assets decreased $0.8 million, primarily related to hosting and infrastructure costs. Therefore, cost of subscription and support revenue for our Organic Business decreased by $5.6 million, primarily related to a year over year reduction in pass-through telecom messaging costs associated with the CXM usage revenue from US election-year presidential campaigns in 2020 which did not repeat in 2021, partially offset by an increase in infrastructure and hosting costs.
Cost of professional services revenue was $7.3 million in 2021, compared to $8.6 million in 2020, a decrease of $1.3 million, or 15%. The acquisitions not fully in the comparative period contributed $0.9 million to the increase to cost of professional services revenue, primarily related to an increase in personnel and related costs. Therefore, cost of professional services revenue for our Organic Business decreased by $2.2 million which corresponds with the reduction in professional services revenue as a result of COVID-19 related travel impacts.
Operating Expenses
Sales and Marketing Expense
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Sales and marketing | $ | 55,097 | 18% | $ | 46,077 | 16% | $ | 9,020 | 20% | ||||||||||||||||||||||||||
Sales and marketing expense was $55.1 million in 2021, compared to $46.1 million in 2020, an increase of $9.0 million, or 20%. Sales and marketing expense for our Organic Business increased by $5.4 million, primarily as a result of increased commission costs which were partially offset by decreased travel and discretionary marketing expenses. In addition, the acquisitions not fully in the comparative period contributed $3.6 million to the increase in sales and marketing expense, primarily consisting of personnel and related costs in 2021.
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Research and Development Expense
| Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | ||||||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | |||||||||||||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||||||||||||
| Research and development | $ | 42,693 | 14% | $ | 39,002 | 13% | $ | 3,691 | 9% | |||||||||||||||||||||||||||||
Research and development expense was $42.7 million in 2021, compared to $39.0 million in 2020, an increase of $3.7 million, or 9%. The acquisitions not fully in the comparative period contributed $3.6 million to the increase in research and development expense primarily consisting of personnel and related costs. Research and development expense related to our Sunset Assets decreased by $0.2 million primarily due to reductions in personnel costs. Therefore, research and development costs for our Organic Business increased by $0.3 million primarily related to an increase in non-cash stock compensation expense and outsourced technology services costs.
General and Administrative Expense
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| General and administrative | $ | 76,901 | 25% | $ | 68,072 | 23% | $ | 8,829 | 13% | ||||||||||||||||||||||||||
General and administrative expense was $76.9 million in 2021, compared to $68.1 million in 2020, an increase of $8.8 million, or 13%. General and administrative expense for our Organic Business increased by $6.2 million, which was driven primarily by increased non-cash stock compensation expense largely due to the issuance of restricted stock units in 2021 and a one-time increase in non-cash stock compensation expense related to the departure of our former co-President and Chief Operating Officer in March 2021. In addition, an increase in general administrative expense of $2.6 million was due to the acquisitions not fully in the comparative period, which consisted primarily of personnel and related costs and administrative expenses.
Depreciation and Amortization Expense
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Depreciation and amortization: | |||||||||||||||||||||||||||||||||||
| Depreciation | $ | 1,968 | 1% | $ | 2,057 | 1% | $ | (89) | (4)% | ||||||||||||||||||||||||||
| Amortization | 39,347 | 13% | 34,862 | 12% | 4,485 | 13% | |||||||||||||||||||||||||||||
| Total depreciation and amortization | $ | 41,315 | 14% | $ | 36,919 | 13% | $ | 4,396 | 12% | ||||||||||||||||||||||||||
Depreciation and amortization expense was $41.3 million in 2021, compared to $36.9 million in 2020, an increase of $4.4 million, or 12%. The acquisitions not fully in the comparative period increased depreciation and amortization expense by $5.8 million, primarily related to acquired intangible assets such as customer relationships, developed technology and tradenames. Therefore, depreciation and amortization expense for our Organic Business decreased by $1.4 million in the comparative periods due to assets becoming fully depreciated or amortized during the period.
Acquisition-related Expense
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Acquisition-related expense | $ | 21,234 | 8% | $ | 27,075 | 9% | $ | (5,841) | (22)% | ||||||||||||||||||||||||||
Acquisition-related expenses are one-time expenses typically incurred for up to four quarters after each acquisition, with the majority of these costs being incurred within six to nine months, to transform the acquired business into the Company's unified operating platform. These expenses can vary based on the size, timing and location of each acquisition. These acquisition-related expenses include transaction related expenses such as banker fees, legal and professional fees, insurance costs, and deal bonuses. These acquisition-related expenses also include transformational expenses such as severance, compensation for transitional personnel, office lease terminations, and vendor cancellations. Absent new acquisition activity, acquisition-related expenses decline in subsequent, sequential quarters and are generally no longer incurred after the first anniversary of the last closed acquisition.
Acquisition-related expense was $21.2 million in 2021, compared to $27.1 million for 2020, a decrease of $5.9 million, or 22%. The decrease was primarily attributable to a $4.5 million gain recognized in 2021 related to a decrease in the fair value of earnout liabilities due to sellers related to our 2021 acquisitions and a reduction in holdback liabilities subsequent to the closing of purchase accounting. In addition, we completed one acquisition in 2020 and incurred the majority of its transformational expense in 2021. This is in contrast to the five acquisitions completed in 2019 for which the majority of transformational expenses were incurred in 2020.
Other Expense, net
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Other Expense: | |||||||||||||||||||||||||||||||||||
| Interest expense, net | $ | (31,626) | (10)% | $ | (31,529) | (11)% | $ | (97) | —% | ||||||||||||||||||||||||||
| Other expense, net | (253) | (1)% | (111) | —% | (142) | 128% | |||||||||||||||||||||||||||||
| Total other expense | $ | (31,879) | (11)% | $ | (31,640) | (11)% | $ | (239) | 1% | ||||||||||||||||||||||||||
Interest expense, net was $31.6 million in 2021, compared to $31.5 million for 2020, an increase of $0.1 million, or 0%. The marginal increase in interest expense was primarily attributable to the average borrowing on our Credit Facility being largely unchanged.
Other expense, net was $0.3 million in 2021, compared to other expense of $0.1 million in 2020, an increase of $0.2 million, or 128%. The difference in other expense is primarily due to an increase in foreign currency exchange losses compared to 2020.
Benefit from Income Taxes
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2021 | 2020 | Change | |||||||||||||||||||||||||||||||||
| Amount | Percent of Revenue | Amount | Percent of Revenue | Amount | % Change | ||||||||||||||||||||||||||||||
| (dollars in thousands) | |||||||||||||||||||||||||||||||||||
| Loss before provision for income taxes | (66,556) | (23)% | (55,453) | (19)% | (11,103) | (20)% | |||||||||||||||||||||||||||||
| Benefit from (provision for) income taxes | $ | 8,344 | 4% | $ | 4,234 | 1% | $ | 4,110 | 97% | ||||||||||||||||||||||||||
| Effective income tax rate | (12.5) | % | (7.6) | % | |||||||||||||||||||||||||||||||
Benefit from income taxes was $8.3 million in 2021, compared to a benefit for income taxes of $4.2 million in 2020, an increase in the benefit from income taxes of $4.1 million, or 97%. This increase was due primarily to increased benefits recognized during the year attributable to the release of valuation allowances associated with acquisitions of domestic entities with deferred tax liabilities that, upon acquisition, allow us to recognize certain deferred tax assets that had previously been offset by a valuation allowances.
41
Because we have not generated domestic net income in any period to date, we have recorded a full valuation allowance against our domestic net deferred tax assets, exclusive of any remaining tax deductible goodwill after application of indefinite life deferred tax assets. Realization of any of our domestic deferred tax assets depends upon future earnings, the timing and amount of which are uncertain. Based on analysis of acquired net operating losses, utilization of our net operating losses will be subject to annual limitations due to the ownership change rules under the Code and similar state provisions. Refer to “Note 6. Income Taxes”, in the notes to the consolidated financial statements for more information regarding our income taxes as they relate to foreign and domestic operations.
Comparison of Years Ended December 31, 2020 and December 31, 2019
For a comparison of years ended December 31, 2020 and 2019 refer to “Item 7. Management’s Discussion and Analysis” in the Company’s Annual Report on Form 10-K for the years ended December 31, 2020 filed with the SEC on February 25, 2021 (the “2020 Annual Report”).
42
Liquidity and Capital Resources
To date, we have financed our operations primarily through the raising of capital including sales of our common stock, cash from operating activities, borrowings under our Credit Facility, and the issuance of notes to sellers in some of our acquisitions. We believe that current cash and cash equivalents, cash flows from operating activities, availability under our Credit Facility (as hereinafter defined), and the ability to offer and sell securities pursuant to our registration statement, as discussed under “—Registration Statement” below, will be sufficient to fund our operations for at least the next twelve months. In addition, we intend to utilize the sources of capital available to us under our Credit Facility and registration statement to support our continued growth via acquisitions within our core enterprise solution suites of complementary technologies and businesses.
The following table summarizes our liquidity for the periods indicated:
| Year Ended December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| (dollars in thousands) | |||||||||||
| Cash and cash equivalents | $ | 189,158 | $ | 250,029 | |||||||
| Available borrowings from our Credit Facility | 60,000 | 60,000 | |||||||||
| Total Liquidity | $ | 249,158 | $ | 310,029 | |||||||
The $60.9 million decrease in cash and cash equivalents from December 31, 2020 to December 31, 2021 includes $97.7 million in cash paid for our three acquisitions completed during 2021, net of $1.2 million in cash acquired, which was partially offset by a $5.2 million settlement in total consideration for Localytics related to a representation and warranty insurance settlement. Non-cash acquisition date consideration to be paid in future periods related to these acquisitions includes $10.9 million in holdback payments and $4.2 million in earnout payments that are due within 12 to 18 months of the closing dates of the underlying acquisitions. The earnouts are subject to attainment of future performance-based conditions.
Our cash and cash equivalents held by our foreign subsidiaries was $24.8 million as of December 31, 2021. If these funds held by our foreign subsidiaries are needed for our domestic operations, we would be required to accrue and pay U.S. taxes to repatriate these funds to the U.S. However, our intent is to permanently reinvest these funds outside the U.S. and our current plans do not demonstrate a need to repatriate them to fund our domestic operations. We do not provide for federal income taxes on the undistributed earnings of our foreign subsidiaries.
As of December 31, 2021 and 2020, we had a working capital surplus of $106.5 million and $196.1 million, respectively.
Credit Facility
Our facility is comprised of $540.0 million in original principal term loans and a $60.0 million revolving credit facility.
On August 6, 2019, we entered into a credit agreement (the “Credit Facility”) which provides for (i) a fully-drawn $350 million, 7 year, senior secured term loan B facility (the “Term Loan”) and (ii) a $60 million, 5 year, revolving credit facility (the “Revolver”) that was fully available as of December 31, 2021. The Credit Facility replaced our previous credit facility. All outstanding balances under our previous credit facility were paid off using proceeds from our Credit Facility.
On November 26, 2019, the Company entered into a First Incremental Assumption Agreement (the “Incremental Assumption Agreement”) which provides for a term loan facility to be established under the Credit Facility in an aggregate principal amount of $190 million (the “2019 Incremental Term Loan”) which is in addition to the existing $350 million Term Loan outstanding under the Credit Facility and the $60 million Revolver under the Credit Facility.
The Credit Facility has no financial covenants as long as less than 35% of the Revolver is drawn as of the last day of any fiscal quarter. The Credit Facility is secured by a security interest in substantially all of our assets and requires us to maintain certain financial covenants. The Credit Facility contains certain non-financial restrictive covenants that limit our ability to transfer or dispose of assets, merge with other companies or consummate certain changes of control, acquire other companies, pay dividends, incur additional indebtedness and liens, effect changes in management and enter into new businesses. As of December 31, 2021, we were in compliance with all covenants under the Credit Facility. See “Note 7. Debt” in the notes to the consolidated financial statements for more information regarding our Credit Facility and outstanding debt as of December 31, 2021.
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Registration Statement
On August 10, 2020, the Company filed a registration statement on Form S-3 (File No. 333-243728) (the “2020 S-3”), which became effective automatically upon its filing and covers an unlimited amount of securities. The 2020 S-3 will remain effective through August 2023. On August 14, 2020, we completed a registered underwritten public offering pursuant to the 2020 S-3 of 3,500,000 shares of the Company's $0.0001 par value common stock for an offering price to the public of $34.00 per share. In addition, on August 27, 2020 we closed the sale of an additional 525,000 shares issuable pursuant to a fully exercised option to purchase additional shares granted to the underwriters of the offering. The total net proceeds of the offering, including shares issued pursuant to the fully exercised option, of $130.1 million, net of issuance costs of $6.8 million, will be used for general business purposes, including the funding of future acquisitions. There are no open outstanding security offerings at this time.
The following table summarizes our cash flows for the periods indicated:
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| (dollars in thousands) | |||||||||||||||||
| Consolidated Statements of Cash Flow Data: | |||||||||||||||||
| Net cash provided by operating activities | $ | 41,738 | $ | 35,620 | $ | 12,076 | |||||||||||
| Net cash used in investing activities | (93,532) | (68,970) | (217,761) | ||||||||||||||
| Net cash provided by (used in) financing activities | (8,180) | 107,899 | 363,768 | ||||||||||||||
| Effect of exchange rate fluctuations on cash | (897) | 456 | 203 | ||||||||||||||
| Change in cash and cash equivalents | (60,871) | 75,005 | 158,286 | ||||||||||||||
| Cash and cash equivalents, beginning of period | 250,029 | 175,024 | 16,738 | ||||||||||||||
| Cash and cash equivalents, end of period | $ | 189,158 | $ | 250,029 | $ | 175,024 | |||||||||||
Cash Flows from Operating Activities
Cash provided by operating activities is significantly influenced by the amount of cash we invest in personnel and infrastructure to support the anticipated growth of our business. Included in net cash provided by operations are one-time acquisition related expenses incurred for up to four quarters after each acquisition to transact and transform the acquired business into the Company's unified operating platform. Additionally, operating cash flows includes the impact of earnout payments in excess of original purchase accounting estimates. Our working capital consists primarily of cash, receivables from customers, prepaid assets, unbilled professional services, deferred commissions, accounts payable, accrued compensation and other accrued expenses, acquisition related earnout and holdback liabilities, lease liabilities and deferred revenues. The volume of professional services rendered, the volume and timing of customer bookings and contract renewals, and the related timing of collections and renewals on those bookings, as well as the timing of spending commitments and payments of our accounts payable, accrued expenses, accrued payroll and related benefits, all affect these account balances.
Cash provided by operating activities was $41.7 million for 2021 compared to $35.6 million for 2020, an increase of $6.1 million. This increase in operating cash flow is generally attributable to the Company’s increased size and scale. Working capital sources of cash for 2021 included an increase of $10.9 million in accounts payable related to timing of payments, and an increase of $5.6 million in deferred revenue. Working capital uses of cash for the twelve months ended December 31, 2021 included a $1.7 million increase in accounts receivable related to the timing of collections, a $7.5 million increase in prepaids and other related primarily to an increase in deferred sales commissions, and a $9.7 million decrease in accrued expenses.
A substantial source of cash is invoicing for subscriptions and support fees in advance, which is recorded as deferred revenue, and is included on our consolidated balance sheet as a liability. Deferred revenue consists of the unearned portion of booked fees for our software subscriptions and support and for professional services, which is amortized into revenue in accordance with our revenue recognition policy. We assess our liquidity, in part, through an analysis of new subscriptions invoiced, expected cash receipts on new and existing subscriptions, and our ongoing operating expense requirements.
Cash Flows from Investing Activities
Our primary investing activities have consisted of acquisitions of complementary technologies, products and businesses. As our business grows, we expect our primary investing activities to continue to further expand our family of software applications and infrastructure and support additional personnel.
44
For 2021, cash used in investing activities consisted of $97.7 million associated with the Company’s 2021 acquisitions, and the purchases of property and equipment of $1.1 million, partially offset by a $5.2 million settlement in total consideration for Localytics related to a representation and warranty insurance settlement. Cash used in investing activities increased $24.6 million in 2021 compared to 2020 primarily as a result of closing three acquisitions during the period compared to one acquisition in the comparable prior year period.
Cash Flows from Financing Activities
Our primary financing activities have consisted of capital raised to fund our acquisitions, proceeds from debt obligations incurred to finance our acquisitions, repayments of our debt obligations, and share based tax payment activity.
Cash provided by financing activities decreased $116.1 million in 2021 compared to 2020. The decrease relates primarily to a decrease in cash generated from issuance of our common stock as the Company received net proceeds of $130.1 million related to a secondary stock offering completed in August 2020. This decrease in cash provided by financing activities was partially offset by a $12.8 million decrease in additional consideration paid to sellers (i.e. holdbacks and earnouts) compared to 2020. In addition, net share employee payroll tax settlement payments decreased $1.2 million during 2021 compared to 2020 as a result of the payroll tax election in mid-2020 to sell shares to cover employee payroll taxes on stock compensation vestings.
Contractual Payment Obligations
The following table summarizes our future contractual obligations as of December 31, 2021 (in thousands):
| Next 12 Months | Beyond 12 Months | Total | ||||||||||||||||||
Debt Obligations (1) | $ | 5,400 | $ | 522,450 | $ | 527,850 | ||||||||||||||
Interest on Debt Obligations (2) | 28,628 | 100,979 | 129,607 | |||||||||||||||||
Operating Lease Obligations (3) | 4,060 | 7,963 | 12,023 | |||||||||||||||||
Purchase Commitments (4) | 22,771 | 30,329 | 53,100 | |||||||||||||||||
| Total | $ | 60,859 | $ | 661,721 | $ | 722,580 | ||||||||||||||
(1)Consists of contractual principal payments on our Credit Facility. See “—Liquidity and Capital Resources” above for further discussion regarding our Credit Facility.
(2)Future interest on debt obligations is calculated using the interest rate effective as of December 31, 2021. We have entered into floating-to-fixed interest rate swap agreements to limit exposure to interest rate risk related to our debt. These interest rate swaps effectively converted the entire balance of the Company's $540 million original principal term loans from variable interest payments to fixed interest rate payments, based on an annualized fixed rate of 5.4%, for the 7 year term of the debt. In conjunction with our new $350 million, 7 year, Credit Facility and our $190 million 2019 Incremental Term Loan, we entered into interest rate hedge instruments for the full 7 year term, effectively fixing our interest rate at 5.4%. However, the interest rate associated with our $60 million, 5 year, undrawn Revolver remains floating. See “Item 7A. Quantitative and Qualitative Disclosures About Market Risk—Interest Rate Risk” for further discussion.
(3)We lease office space under operating leases that expire between 2022 and 2027. Operating lease obligations above do not include the impact of future rental income related to agreements we have entered into to sublet excess office space as a result of our transformation activities.
(4)We define a purchase commitment as an agreement that is enforceable and legally binding and that specifies all significant terms, including: fixed or minimum services to be used; fixed, minimum or variable price provisions; and the approximate timing of the transaction. Obligations under contracts that we can cancel without a significant penalty are not included. In addition, Purchase orders are not included as they represent authorizations to purchase rather than binding agreements.
The Company has purchase commitments related to hosting services, third-party technology used in the Company's solutions and for other services the Company purchases as part of normal operations. In certain cases these arrangements require a minimum annual purchase commitment.
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Includes an outstanding purchase commitment in 2022 for software development services from DevFactory FZ-LLC (“DevFactory”) pursuant to a technology services agreement in the amount of $10.0 million. The agreement provides for annual renewal by either party to the contract. See “Note 16. Related Party Transactions” in the notes to consolidated financial statements for more information regarding this purchase commitment.
Critical Accounting Policies and the Use of Estimates
We prepare our consolidated financial statements in accordance with generally accepted accounting principles in the United States (“GAAP”). The preparation of consolidated financial statements also requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue, costs and expenses and related disclosures. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. Actual results could differ significantly from the estimates made by our management. To the extent that there are differences between our estimates and actual results, our future financial statement presentation, financial condition, results of operations and cash flows will be affected.
While our significant accounting policies are more fully described in “Note 2. Summary of Significant Accounting Policies” in the notes to the consolidated financial statements appearing elsewhere in this Annual Report on Form 10-K, we believe that the accounting policies discussed below are critical to understanding our historical and future performance, as these policies relate to the more significant areas involving management’s judgments and estimates.
Revenue Recognition
Revenues are recognized when control of the promised goods or services is transferred to our customers, in an amount that reflects the consideration we expect to be entitled to in exchange for those goods or services over the term of the agreement. We recognize revenues based on the five-step model in accordance with ASC 606, Revenue from Contracts with Customers. We derive our revenues primarily from subscription and support revenues. Other revenue-generating activities include perpetual licenses and professional services revenues.
Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment. In addition, significant judgments are made when determining the standalone selling price (“SSP”) in situations where we have a contract that have multiple performance obligations. We determine the SSP based on our overall pricing objectives, taking into consideration market conditions and other factors, including the value of our contracts, historical standalone sales, customer demographics, geographic locations, and the number and types of users within our contracts.
For revenue generated from arrangements that involve vendor reseller agreements and messaging-related subscription agreements, there is significant judgment in evaluating whether we are the principal (i.e., report revenues on a gross basis) or agent (i.e., report revenues on a net basis). In this assessment, we consider if we obtain control of the specified goods or services before they are transferred to the customer. In reaching conclusions on gross versus net revenue recognition, we place the most weight on the analysis of whether or not it is the primary obligor in the arrangement. Generally, we report revenue from vendor reseller agreements on a gross basis, meaning the amounts billed to customers are recorded as revenue, and expenses incurred are recorded as cost of revenue.
See “Note 13. Revenue Recognition” in the notes to the consolidated financial statements appearing elsewhere in this Annual Report on Form 10-K for a detailed description of our revenue recognition policy.
Deferred Commissions
Sales commissions for new customer contracts are capitalized upon contract signing and amortized over the expected life of the customer relationships, which has been determined to be approximately 6 years, consistent with prior year. Sales commissions paid on renewal contracts are deferred and amortized over the average renewal term, which was determined to be approximately 18 months, consistent with prior year. Determining the period of expected life of customer relationships and average renewal term requires judgment for which we take into consideration our customer contracts, our technology life cycle and other factors.
See “Note 13. Revenue Recognition—Deferred Commissions” in the notes to the consolidated financial statements appearing elsewhere in this Annual Report on Form 10-K for a detailed description of our deferred commission.
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Income Taxes
We are subject to income taxes in the United States and several foreign jurisdictions. Significant judgment is required in evaluating and estimating our provision for these taxes. There are many transactions that occur during the ordinary course of business for which the ultimate tax determination is uncertain. The Tax Act has provisions that require additional guidance on specific interpretations of the tax law changes. Our provision for income taxes could be adversely affected by our earnings being lower than anticipated in countries where we have lower statutory rates and higher than anticipated in countries where we have higher statutory rates, losses incurred in jurisdictions for which we are not able to realize the related tax benefit, changes in foreign currency exchange rates, entry into new businesses and geographies and changes to our existing businesses, acquisitions and investments, changes in our deferred tax assets and liabilities including changes in our assessment of valuation allowances, changes in the relevant tax laws or interpretations of these tax laws, and developments in current and future tax examinations.
The Company uses the asset and liability method of accounting for income taxes. Under this method, deferred tax assets and liabilities are recognized for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred tax assets and liabilities will be recognized in the period that includes the enactment date. We make significant estimates in determining the value of our deferred tax assets. These estimates included, but are not limited to, the expected reversal periods of deferred tax assets and liabilities, the availability of net operating losses and other carryovers and consideration of the future ability to generate taxable income. These estimates are inherently uncertain and unpredictable, and if different estimates were used, it would impact the value of our deferred tax assets and the income tax benefit recognized in fiscal 2021 and in future periods when the deferred taxes are realized.
A valuation allowance is established against our deferred tax assets to reduce their carrying value to an amount that is more likely than not to be realized. As of December 31, 2021 we recorded a valuation allowance of $28.6 million against our deferred tax assets. If, in the future, we evaluate that our deferred tax assets are not more likely than not to be realized, an increase in the related valuation allowance could result in a material income tax expense in the period such determination is made.
The Company has adopted an indefinite reinvestment position whereby foreign earnings for foreign subsidiaries are expected to be reinvested and future earnings are not expected to be repatriated. As a result of this policy, no deferred tax liability has been accrued in anticipation of future dividends from foreign subsidiaries.
The Company accounts for the uncertainty of income taxes based on a “more likely than not” threshold for the recognition and derecognition of tax positions. The Company’s policy is to account for interest and penalties as a component of income tax expense.
Business Combinations
The allocation of the purchase price in a business combination requires management to make significant estimates in determining the fair value of acquired assets and assumed liabilities, especially with respect to intangible assets. The excess of the purchase price over these estimated fair values is recorded to goodwill. Significant estimates and assumptions, including fair value estimates, are used to determine the fair value of assets acquired, liabilities assumed, and contingent consideration transferred as well as the useful lives of long-lived assets acquired.
The valuation of identifiable intangible assets reflects management’s estimates based on, among other factors, use of established valuation methods, including, but not limited to, the multi-period excess earnings method income approach method and the relief-from-royalty method. The purchase price transferred in our acquisitions often contain purchase price holdback and contingent consideration provisions, such as earnout payments. The Company utilizes a third-party valuation specialist to estimate the acquisition date fair value of potential earnout payments. Subsequent remeasurements of potential earnout payments require significant judgements and estimates including, but not limited to, (and if applicable in the circumstances) customer renewals, new customers, ARR growth, forecasted bookings, forecasted churn and other factors.
See “Note 2. Summary of Significant Accounting Policies—Business Combinations” in the notes to the consolidated financial statements appearing elsewhere in this Annual Report on Form 10-K for a detailed description of business combinations.
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Stock-Based Compensation
We measure all share-based payments, including grants of options to purchase common stock and the issuance of restricted stock or restricted stock units to employees, service providers and board members, using the fair-value at grant date. We record forfeitures as they occur. The cost of services received from employees and non-employees in exchange for awards of equity instruments is recognized on our consolidated statement of operations based on the estimated fair value of those awards on the grant date and amortized on a straight-line basis over the requisite service period. We value restricted stock and restricted stock units at the closing price of our common stock on the grant date. We value stock option awards using the Black-Scholes option-pricing model. For the years ended December 31, 2021, 2020, and 2019 stock-based compensation awards consisted primarily of restricted stock and restricted stock units.
From time to time, we grant restricted stock units that also include performance or market-based conditions (“PRSUs”). For PRSUs granted with a market condition, we use a Monte Carlo simulation analysis to value the award. Compensation expense for awards with marked-based conditions is recognized over the required service period of the grant based on the grant date fair value of the award and is not subject to fluctuation due to achievement of the underlying market-based condition.
Goodwill and Other Intangibles
Goodwill
Goodwill is evaluated for impairment annually in October or more frequently when a triggering event occurs or circumstances change that indicate the carrying value may not be recoverable. We assess goodwill for impairment by comparing the estimated fair value of the Company to the its carrying value. If the fair value of the reporting unit is less than its carrying amount, we recognize an impairment loss equal to that excess amount.
We apply both qualitative and quantitative assessments to determine whether it is more likely than not that the fair value of our single reporting unit is less than its carrying value. Although several fair value methodologies are allowed, we use the fair-value-based approach based on market capitalization, which generates the best evidence of fair value since the approach uses quoted market prices (a Level 1 fair-value hierarchy).
Identifiable intangible assets
Identifiable intangible assets consist of customer relationships, marketing-related intangible assets and developed technology. Intangible assets with definite lives are amortized over their estimated useful lives on a straight-line basis. The straight-line method of amortization represents our best estimate of the distribution of the economic value of the identifiable intangible assets. The Company periodically reviews the estimated useful lives of its identifiable intangible assets, taking into consideration any events or circumstances that might result in either a diminished fair value or revised useful life.
Recent Accounting Pronouncements
For information with respect to recent accounting pronouncements and the impact of these pronouncements on our consolidated financial statements, refer to “Note 2. Summary of Significant Accounting Policies” in the notes to the consolidated financial statements included in “Part II—Item 8. Financial Statements and Supplementary Data” of this Annual Report on Form 10-K.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
We have operations both within the United States and internationally, and we are exposed to market risks in the ordinary course of our business. These risks primarily include interest rate, foreign exchange and inflation risks, as well as risks relating to changes in the general economic conditions in the countries where we conduct business. The statement of operations impact is mitigated by having an offsetting liability in deferred revenue to partially or completely offset against the outstanding receivable if an account should become uncollectible. Our cash balances are kept in customary operating accounts, a portion of which are insured by the Federal Deposit Insurance Corporation, and uninsured money market accounts. The majority of our cash balances in money market accounts are with Wells Fargo, our lender under our loan facility. To date, we have not used derivative instruments to mitigate the impact of our market risk exposures. We also have not used, nor do we intend to use, derivatives for trading or speculative purposes.
Interest Rate Risk
Our exposure to market risk for changes in interest rates primarily relates to our cash equivalents and any variable rate
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indebtedness. The primary objective of our investment activities is to preserve principal while maximizing yields without significantly increasing risk. This objective is accomplished currently by making diversified investments, consisting only of money market mutual funds and certificates of deposit.
In conjunction with entering into our $350 million, 7 year, term Credit Facility, and subsequent entry into an additional $190 million 2019 Incremental Term Loan under the Credit Facility, we entered into interest rate hedge instruments for the full 7 year term, effectively fixing our interest rate at 5.4%. However, the interest rate associated with our $60 million, 5 year, term Revolver remains floating. As of December 31, 2021, we had an outstanding debt balance of $527.9 million under our Credit Facility. As there was no debt outstanding under our Revolver as of December 31, 2021, a hypothetical change of 100 basis points would result in no change to interest expense.
Foreign Currency Exchange Risk
Our customers are generally invoiced in the currency of the country in which they are located. In addition, we incur a portion of our operating expenses in foreign currencies, including Australian dollars, British pounds, Canadian dollars, Euros and Israeli New Shekels, and in the future, as we expand into other foreign countries, we expect to incur operating expenses in other foreign currencies. As a result, we are exposed to foreign exchange rate fluctuations as the financial results of our international operations and our revenue and operating results could be adversely affected. We have not previously engaged in foreign currency hedging. If we decide to hedge our foreign currency exchange rate exposure, we may not be able to hedge effectively due to lack of experience, unreasonable costs, or illiquid markets. The effect of a hypothetical 10% change in foreign currency exchange rates applicable to our business would have resulted in a change in revenue of $6.8 million for the year ended December 31, 2021. To date, we have not engaged in any hedging strategies. As our international operations grow, we will continue to reassess our approach to manage our risk relating to fluctuations in foreign currency exchange rates.
The non-financial assets and liabilities of our foreign subsidiaries are translated into USD using the exchange rates in effect at the balance sheet date. The related translation adjustments are recorded in a separate component of stockholders' equity in accumulated other comprehensive loss. In addition, we have intercompany loans that were used to fund the acquisition of foreign subsidiaries during the years ended December 31, 2019 and 2018. Due to the long-term nature of these loans, the foreign currency gains (losses) resulting from remeasurement are recognized as a component of accumulated other comprehensive loss.
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Item 8. Financial Statements and Supplementary Data
UPLAND SOFTWARE, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
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Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Upland Software, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Upland Software, Inc. (the Company) as of December 31, 2021 and 2020, the related consolidated statements of operations, comprehensive loss, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2021, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2021 and 2020, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2021, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 24, 2022, expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
| Valuation of intangible assets and contingent consideration in business combinations | |||||
Description of the Matter | As disclosed in Note 1 to the consolidated financial statements, the Company’s growth strategy is to pursue acquisitions of complementary technologies and businesses as evidenced by the twenty-nine acquisitions made in the ten years ended December 31, 2021. As disclosed in Note 3 to the consolidated financial statements, during 2021, the Company completed 3 acquisitions for total consideration of $112.5 million, which included $4.2 million of contingent consideration. The acquisitions were accounted for as business combinations in accordance with ASC 805. | ||||
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| Auditing the Company's accounting for its acquisitions was complex due to the estimation uncertainty in the Company’s determination of the fair value of identified intangible assets, which primarily consist of developed technology of $9.9 million and customer relationships of $43.2 million, and contingent consideration of $4.2 million. The estimation uncertainty was primarily due to the judgmental nature of the inputs and assumptions to the valuation models used to measure the fair value of these intangible assets and contingent consideration, as well as the sensitivity of the respective fair values to underlying assumptions. The Company used the multi-period excess earnings and relief-from-royalty methods, which are variations of the income approach, to measure the customer relationships and developed technology intangible assets, respectively, and the binary option model to measure contingent consideration. The significant assumptions used to estimate the fair value of the intangible assets included discount rates and certain assumptions that form the basis of the forecasted results, including revenue growth rates, gross margin, operating expenses, technology obsolescence and customer attrition. The significant assumptions used to estimate the fair value of the contingent consideration included discount rates and expected future annual revenue streams and the related probability of achievement. These significant assumptions are forward-looking and could be affected by future economic and market conditions. | |||||
How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of internal controls over the Company’s accounting for acquisitions, which included management’s review of the determination of the key assumptions used in estimating the fair value of intangible assets and contingent consideration. | ||||
| To test the estimated fair value of the identified intangible assets and contingent consideration our audit procedures for each of the acquisitions included, among others, reading the purchase agreement, evaluating the Company's use of the multi-period excess earnings method, relief-from-royalty method and binary option model, evaluating the significant assumptions used by the Company, and evaluating the completeness and accuracy of the underlying data supporting the significant assumptions and estimates. We involved our valuation specialists to assist with our evaluation of the methodologies used by the Company and significant assumptions included in the fair value estimates. For example, we compared the forecasted results to historical operating results, industry peer results, economic trends, and other relevant factors. We also assessed the historical accuracy of management’s estimates. | |||||
| Revenue recognition for new products and services | |||||
Description of the Matter | The Company frequently acquires companies that have their own portfolio of products and services that will be included in the Upland suite of offerings. For each of these new products and services, the Company must understand the terms and conditions contained in the contracts with customers and evaluate and apply the five-step model under ASC 606 to ensure proper revenue recognition. Management performs detailed contract review procedures to ensure that any non-standard terms and conditions included in the contracts are properly considered in relation to the accounting literature. | ||||
| Auditing the Company’s revenue recognition analysis related to new products and services, primarily from acquisitions, was challenging due to the effort required in identifying and evaluating non-standard terms and conditions in contracts under Upland’s revenue recognition policy, in accordance with ASC 606. For example, there may be non-standard terms and conditions that required judgment to determine distinct performance obligations, transaction price, or the pattern of revenue recognition. | |||||
How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of the Company's internal controls over the process to evaluate the application of the Company’s revenue recognition policy to newly added products and services. This included the controls related to the determination of distinct performance obligations, transaction price, and pattern of revenue recognition. | ||||
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| Among other procedures, we obtained and evaluated management’s assessment of the respective revenue recognition for new products and services. We also reviewed management’s evidence for compiling the complete portfolio of contracts and selected a sample of executed contracts to review the terms and conditions. For each of the contracts we reviewed, we identified the promised goods and services in the contract and assessed the distinct performance obligations. We also evaluated the impact of non-standard terms and conditions on the determination of the transaction price and pattern of revenue recognition. | |||||
| Measurement of Income Tax Provision | |||||
Description of the Matter | As more fully described in Notes 2 and 6 to the consolidated financial statements, the Company operates in domestic and international markets and is subject to tax law in the U.S., U.K., and other foreign tax jurisdictions. The income tax provision is an estimate based on management’s understanding of current enacted tax laws and tax rates of each tax jurisdiction. The Company’s accounting for income taxes involves the application of complex and changing tax laws, regulations, and case law in multiple jurisdictions as it relates to non-routine transactions such as acquisitions. The Company utilizes judgment in the interpretation of tax laws, regulations, and case law as they apply to its tax positions. For the year ended December 31, 2021, income tax benefit was $8.3 million. | ||||
| Auditing management’s calculation of the provision for income taxes was complex because the provision for income taxes involved auditor judgment, due to the interpretation of tax laws, regulations, and case law across multiple jurisdictions, the application of those laws, regulations, and case law as it relates to non-routine transactions such as acquisitions, and evaluation of the application of such tax laws, regulations, and case law to the Company’s tax positions. These matters are subject to legal and factual interpretation. Our audit procedures required significant audit effort, including the use of our tax professionals to assist in evaluating the audit evidence obtained from our procedures. | |||||
How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of internal controls relating to the provision for income taxes, inclusive of management’s review of the provision for income taxes and interpretation of tax laws, regulations, and case law. For example, we tested the Company’s controls over management’s review of the underlying data used in the provision for income tax calculations and controls over management’s review of the analysis provided by advisors utilized in the application of tax law to the Company’s tax positions. | ||||
| Among other audit procedures performed, we assessed the Company’s evaluation of tax laws, regulations, and case law, and tested the provision for income tax calculations including the completeness and accuracy of underlying data used in the calculations. We involved our tax matter professionals to evaluate the Company’s interpretation and application of tax laws, regulations, and case law to the Company’s tax positions. This included evaluating advice obtained by the Company. We have also evaluated the Company’s income tax disclosures included in Notes 2 and 6 of the consolidated financial statements in relation to these matters. | |||||
/s/ Ernst & Young LLP
We have served as the Company’s auditor since 2013.
Austin, Texas
February 24, 2022
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Upland Software, Inc.
Consolidated Balance Sheets
See accompanying notes.
| (in thousands, except share and per share amounts) | December 31, | ||||||||||
| 2021 | 2020 | ||||||||||
| Assets | |||||||||||
| Current assets: | |||||||||||
| Cash and cash equivalents | $ | 189,158 | $ | 250,029 | |||||||
Accounts receivable, net of allowance for credit losses | 50,499 | 44,472 | |||||||||
| Deferred commissions, current | 9,824 | 5,784 | |||||||||
| Unbilled receivables | 4,801 | 4,561 | |||||||||
| Prepaid and other | 8,709 | 12,694 | |||||||||
| Total current assets | 262,991 | 317,540 | |||||||||
| Tax credits receivable | 3,345 | 2,427 | |||||||||
| Property and equipment, net | 2,667 | 2,778 | |||||||||
| Operating lease right-of-use asset | 6,454 | 10,124 | |||||||||
| Intangible assets, net | 279,920 | 279,975 | |||||||||
| Goodwill | 457,472 | 383,598 | |||||||||
| Deferred commissions, noncurrent | 14,808 | 12,962 | |||||||||
| Other assets | 1,350 | 1,816 | |||||||||
| Total assets | $ | 1,029,007 | $ | 1,011,220 | |||||||
| Liabilities and stockholders’ equity | |||||||||||
| Current liabilities: | |||||||||||
| Accounts payable | $ | 20,362 | $ | 5,395 | |||||||
| Accrued compensation | 9,829 | 8,138 | |||||||||
| Accrued expenses and other current liabilities | 9,086 | 13,438 | |||||||||
| Deferred revenue | 102,847 | 87,552 | |||||||||
| Liabilities due to sellers of businesses | 7,607 | 416 | |||||||||
| Operating lease liabilities, current | 3,546 | 3,315 | |||||||||
Current maturities of notes payable (includes unamortized discount of $2,233 and $2,234 at December 31, 2021 and December 31, 2020, respectively) | 3,167 | 3,166 | |||||||||
| Total current liabilities | 156,444 | 121,420 | |||||||||
Notes payable, less current maturities (includes unamortized discount of $7,287 and $9,414 at December 31, 2021 and December 31, 2020, respectively) | 515,163 | 518,437 | |||||||||
| Deferred revenue, noncurrent | 2,058 | 1,587 | |||||||||
| Operating lease liabilities, noncurrent | 6,773 | 8,387 | |||||||||
| Noncurrent deferred tax liability, net | 22,793 | 24,092 | |||||||||
| Interest rate swap liabilities | 8,409 | 30,032 | |||||||||
| Other long-term liabilities | 1,079 | 650 | |||||||||
| Total liabilities | 712,719 | 704,605 | |||||||||
| Stockholders’ equity: | |||||||||||
Preferred stock, $0.0001 par value; 5,000,000 shares authorized; no shares issued and outstanding as of December 31, 2021; no shares issued and outstanding as of December 31, 2020, respectively | — | — | |||||||||
Common stock, $0.0001 par value; 50,000,000 shares authorized: 31,096,548 and 29,987,114 shares issued and outstanding as of December 31, 2021 and December 31, 2020, respectively) | 3 | 3 | |||||||||
| Additional paid-in capital | 568,384 | 515,219 | |||||||||
| Accumulated other comprehensive loss | (11,514) | (26,234) | |||||||||
| Accumulated deficit | (240,585) | (182,373) | |||||||||
| Total stockholders’ equity | 316,288 | 306,615 | |||||||||
| Total liabilities and stockholders’ equity | $ | 1,029,007 | $ | 1,011,220 | |||||||
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Upland Software, Inc.
Consolidated Statements of Operations
| (in thousands, except share and per share amounts) | Year Ended December 31, | ||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Revenue: | |||||||||||||||||
| Subscription and support | $ | 287,621 | $ | 277,504 | $ | 203,866 | |||||||||||
| Perpetual license | 2,150 | 1,884 | 5,738 | ||||||||||||||
| Total product revenue | 289,771 | 279,388 | 209,604 | ||||||||||||||
| Professional services | 12,245 | 12,390 | 13,033 | ||||||||||||||
| Total revenue | 302,016 | 291,778 | 222,637 | ||||||||||||||
| Cost of revenue: | |||||||||||||||||
| Subscription and support | 92,168 | 89,880 | 61,465 | ||||||||||||||
| Professional services | 7,285 | 8,566 | 7,652 | ||||||||||||||
| Total cost of revenue | 99,453 | 98,446 | 69,117 | ||||||||||||||
| Gross profit | 202,563 | 193,332 | 153,520 | ||||||||||||||
| Operating expenses: | |||||||||||||||||
| Sales and marketing | 55,097 | 46,077 | 35,170 | ||||||||||||||
| Research and development | 42,693 | 39,002 | 29,037 | ||||||||||||||
| General and administrative | 76,901 | 68,072 | 48,077 | ||||||||||||||
| Depreciation and amortization | 41,315 | 36,919 | 25,885 | ||||||||||||||
| Acquisition-related expenses | 21,234 | 27,075 | 39,657 | ||||||||||||||
| Total operating expenses | 237,240 | 217,145 | 177,826 | ||||||||||||||
| Loss from operations | (34,677) | (23,813) | (24,306) | ||||||||||||||
| Other expense: | |||||||||||||||||
| Interest expense, net | (31,626) | (31,529) | (22,313) | ||||||||||||||
| Loss on debt extinguishment | — | — | (2,317) | ||||||||||||||
| Other expense, net | (253) | (111) | (3,240) | ||||||||||||||
| Total other expense | (31,879) | (31,640) | (27,870) | ||||||||||||||
| Loss before benefit from income taxes | (66,556) | (55,453) | (52,176) | ||||||||||||||
| Benefit from income taxes | 8,344 | 4,234 | 6,805 | ||||||||||||||
| Net loss | $ | (58,212) | $ | (51,219) | $ | (45,371) | |||||||||||
| Net loss per common share: | |||||||||||||||||
Net loss per common share, basic and diluted | $ | (1.92) | $ | (1.92) | $ | (1.96) | |||||||||||
Weighted-average common shares outstanding, basic and diluted | 30,295,769 | 26,632,116 | 23,099,549 | ||||||||||||||
See accompanying notes.
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Upland Software, Inc.
Consolidated Statements of Comprehensive Loss
| (in thousands) | Year Ended December 31, | ||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Net loss | $ | (58,212) | $ | (51,219) | $ | (45,371) | |||||||||||
| Other comprehensive income (loss): | |||||||||||||||||
| Foreign currency gain (loss) translation adjustment | (6,301) | 5,173 | 1,635 | ||||||||||||||
| Unrealized translation gain (loss) on intercompany loans with foreign subsidiaries | (602) | 2,271 | 2,219 | ||||||||||||||
| Unrealized gain (loss) on interest rate swaps | 21,623 | (32,455) | 2,424 | ||||||||||||||
| Other comprehensive income (loss): | $ | 14,720 | $ | (25,011) | $ | 6,278 | |||||||||||
| Comprehensive loss | $ | (43,492) | $ | (76,230) | $ | (39,093) | |||||||||||
See accompanying notes.
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Upland Software, Inc.
Consolidated Statement of Stockholders’ Equity
| (in thousands, except share amounts) | Common Stock | Additional Paid-In Capital | Accumulated Other Comprehensive Loss | Accumulated Deficit | Total Stockholders’ Equity | ||||||||||||||||||||||||||||||
| Shares | Amount | ||||||||||||||||||||||||||||||||||
| Balance at December 31, 2018 | 21,489,112 | $ | 2 | $ | 180,481 | $ | (7,501) | $ | (85,675) | $ | 87,307 | ||||||||||||||||||||||||
| Issuance of common stock in business combination | 7,898 | — | (30) | — | — | (30) | |||||||||||||||||||||||||||||
| Issuance of stock under Company plans, net of shares withheld for tax | (41,890) | — | (12,191) | — | — | (12,191) | |||||||||||||||||||||||||||||
| Issuance of stock, net of issuance costs | 3,795,000 | 1 | 151,113 | — | — | 151,114 | |||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 25,754 | — | — | 25,754 | |||||||||||||||||||||||||||||
| Foreign currency translation adjustment | — | — | — | 1,635 | — | 1,635 | |||||||||||||||||||||||||||||
| Unrealized translation gain on intercompany loans with foreign subsidiaries | — | — | — | 2,219 | — | 2,219 | |||||||||||||||||||||||||||||
| Unrealized gain on interest rate swaps | — | — | — | 2,424 | — | 2,424 | |||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (45,371) | (45,371) | |||||||||||||||||||||||||||||
| Balance at December 31, 2019 | 25,250,120 | $ | 3 | $ | 345,127 | $ | (1,223) | $ | (131,046) | $ | 212,861 | ||||||||||||||||||||||||
| Issuance of stock under Company plans, net of shares withheld for tax | 711,994 | — | (1,673) | — | — | (1,673) | |||||||||||||||||||||||||||||
| Issuance of stock, net of issuance costs | 4,025,000 | — | 130,073 | — | — | 130,073 | |||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 41,692 | — | — | 41,692 | |||||||||||||||||||||||||||||
| — | — | — | — | (108) | (108) | ||||||||||||||||||||||||||||||
| Foreign currency translation adjustment | — | — | — | 5,173 | — | 5,173 | |||||||||||||||||||||||||||||
| Unrealized translation gain on intercompany loans with foreign subsidiaries | — | — | — | 2,271 | — | 2,271 | |||||||||||||||||||||||||||||
| Unrealized loss on interest rate swaps | — | — | — | (32,455) | — | (32,455) | |||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (51,219) | (51,219) | |||||||||||||||||||||||||||||
| Balance at December 31, 2020 | 29,987,114 | $ | 3 | $ | 515,219 | $ | (26,234) | $ | (182,373) | $ | 306,615 | ||||||||||||||||||||||||
| Issuance of stock under Company plans, net of shares withheld for tax | 1,109,434 | — | (708) | — | — | (708) | |||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 53,873 | — | — | 53,873 | |||||||||||||||||||||||||||||
| Foreign currency translation adjustment | — | — | — | (6,301) | — | (6,301) | |||||||||||||||||||||||||||||
| Unrealized translation loss on intercompany loans with foreign subsidiaries | — | — | — | (602) | — | (602) | |||||||||||||||||||||||||||||
| Unrealized gain on interest rate swaps | — | — | — | 21,623 | — | 21,623 | |||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (58,212) | (58,212) | |||||||||||||||||||||||||||||
| Balance at December 31, 2021 | 31,096,548 | $ | 3 | $ | 568,384 | $ | (11,514) | $ | (240,585) | $ | 316,288 | ||||||||||||||||||||||||
See accompanying notes.
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Upland Software, Inc.
Consolidated Statements of Cash Flows
| (in thousands) | Year Ended December 31, | ||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Operating activities | |||||||||||||||||
| Net loss | $ | (58,212) | $ | (51,219) | $ | (45,371) | |||||||||||
| Adjustments to reconcile net loss to net cash provided by operating activities: | |||||||||||||||||
| Depreciation and amortization | 52,928 | 47,164 | 34,621 | ||||||||||||||
| Change in fair value of liabilities due to sellers of businesses | (4,510) | (340) | 241 | ||||||||||||||
| Deferred income taxes | (11,179) | (7,533) | (9,432) | ||||||||||||||
| Amortization of deferred costs | 8,948 | 4,684 | 3,476 | ||||||||||||||
| Foreign currency re-measurement loss | 25 | 272 | 58 | ||||||||||||||
| Non-cash interest and other expense | 2,249 | 2,233 | 1,398 | ||||||||||||||
| Non-cash stock compensation expense | 53,873 | 41,692 | 25,754 | ||||||||||||||
| Non-cash loss on divestiture of assets | — | — | 1,988 | ||||||||||||||
| Non-cash loss on retirement of fixed assets | — | 635 | — | ||||||||||||||
| Non-cash loss on debt extinguishment | — | — | 2,317 | ||||||||||||||
| Changes in operating assets and liabilities, net of purchase business combinations: | |||||||||||||||||
| Accounts receivable | (1,665) | 10,355 | 3,160 | ||||||||||||||
| Prepaids and other | (7,499) | (8,582) | (5,532) | ||||||||||||||
| Accounts payable | 10,865 | (3,081) | (73) | ||||||||||||||
| Accrued expenses and other liabilities | (9,660) | (7,485) | (4,394) | ||||||||||||||
| Deferred revenue | 5,575 | 6,825 | 3,865 | ||||||||||||||
| Net cash provided by operating activities | 41,738 | 35,620 | 12,076 | ||||||||||||||
| Investing activities | |||||||||||||||||
| Purchase of property and equipment | (1,115) | (1,114) | (1,040) | ||||||||||||||
| Purchase of customer relationships | — | (201) | (696) | ||||||||||||||
| Purchase business combinations, net of cash acquired | (92,417) | (67,655) | (216,025) | ||||||||||||||
| Net cash used in investing activities | (93,532) | (68,970) | (217,761) | ||||||||||||||
| Financing activities | |||||||||||||||||
| Payments on finance leases | (12) | (88) | (529) | ||||||||||||||
| Proceeds from notes payable, net of issuance costs | (122) | (303) | 625,666 | ||||||||||||||
| Payments on notes payable | (5,400) | (5,400) | (383,568) | ||||||||||||||
| Taxes paid related to net share settlement of equity awards | (982) | (2,139) | (12,659) | ||||||||||||||
| Issuance of common stock, net of issuance costs | 274 | 130,539 | 151,551 | ||||||||||||||
| Additional consideration paid to sellers of businesses | (1,938) | (14,710) | (16,693) | ||||||||||||||
| Net cash provided by (used in) financing activities | (8,180) | 107,899 | 363,768 | ||||||||||||||
| Effect of exchange rate fluctuations on cash | (897) | 456 | 203 | ||||||||||||||
| Change in cash and cash equivalents | (60,871) | 75,005 | 158,286 | ||||||||||||||
| Cash and cash equivalents, beginning of period | 250,029 | 175,024 | 16,738 | ||||||||||||||
| Cash and cash equivalents, end of period | $ | 189,158 | $ | 250,029 | $ | 175,024 | |||||||||||
| Supplemental disclosures of cash flow information: | |||||||||||||||||
| Cash paid for interest, net of interest rate swaps | $ | 29,427 | $ | 29,919 | $ | 23,862 | |||||||||||
| Cash paid for taxes | $ | 2,846 | $ | 3,185 | $ | 3,557 | |||||||||||
| Non-cash investing and financing activities: | |||||||||||||||||
Business combination consideration including holdbacks and earnouts | $ | 11,670 | $ | (4,893) | $ | 16,108 | |||||||||||
| Issuance of common stock in business combination | $ | — | $ | — | $ | 44 | |||||||||||
See accompanying notes.
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Upland Software, Inc.
Notes to Consolidated Financial Statements
1. Organization and Nature of Operations
Upland Software, Inc. (“Upland,” “we,” “us,” “our,” or the “Company”), a Delaware corporation, is a provider of cloud-based enterprise work management software that enables organizations to plan, manage and execute projects and work. Upland’s four cloud offerings address a broad range of enterprise work management needs, from strategic planning to task execution in the following functional areas: Sales, Marketing, Contact Center, Project Management, Information Technology, Business Operations, and Human Resources and Legal.
To support continued growth, Upland intends to pursue acquisitions within its core cloud offerings of complementary technologies and businesses. Upland expects that this will expand its product offerings, customer base and market access, resulting in increased benefits of scale. Consistent with Upland’s growth strategy, Upland has made a total of 29 acquisitions in the 10 years ending December 31, 2021.
2. Summary of Significant Accounting Policies
Basis of Presentation
These consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”). The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. There have been no significant changes in the Company’s accounting policies since December 31, 2020.
Use of Estimates
The preparation of the accompanying consolidated financial statements in conformity with GAAP requires management to make, on an ongoing basis, estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of revenues and expenses. Significant items subject to such estimates include those related to revenue recognition, deferred commissions, allowance for credit losses, stock-based compensation, contingent consideration, acquired intangible assets, the useful lives of intangible assets and property and equipment, and income taxes. In accordance with GAAP, management bases its estimates on historical experience and on various other assumptions that management believes are reasonable under the circumstances. Management regularly evaluates its estimates and assumptions using historical experience and other factors; however, actual results could differ from those estimates.
We assessed the impact of COVID-19 on the estimates and assumptions and determined there was no material impact. Upland is not aware of any specific event or circumstance that would require an update to its estimates or judgments or a revision of the carrying value of its assets or liabilities as of February 24, 2022, the date of issuance of this Annual Report on Form 10-K. These estimates may change as new events occur and additional information is obtained. Actual results could differ materially from these estimates under different assumptions or conditions.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash deposits and liquid investments with original maturities of three months or less when purchased. Cash equivalents are stated at cost, which approximates market value, because of the short maturity of these instruments.
Accounts Receivable and Allowance for Credit Losses
On January 1, 2020, the Company adopted ASU 2016-13, Financial Instruments - Credit Losses: Measurement of Credit Losses on Financial Instruments. The adoption of ASU 2016-13 resulted in recording a cumulative-effect adjustment to decrease the beginning balance (at January 1, 2020) of Accumulated deficit in the amount of $0.1 million, which represented the accelerated recognition of credit losses related to our trade receivables under the expected credit loss model of calculating our current expected credit losses compared to the previous incurred loss model.
The Company extends credit to the majority of its customers. Issuance of credit is based on ongoing credit evaluations by the Company of customers’ financial condition and generally requires no collateral. Trade accounts receivable are recorded at the
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invoiced amount and do not bear interest. Invoices generally require payment due upon receipt of invoice. The Company generally does not charge interest on past due payments, although the Company's contracts with its customers usually allow it to do so.
To manage accounts receivable credit risk, the Company performs periodic credit evaluations of its customers and maintains current expected credit losses which considers such factors as historical loss information, geographic location of customers, current market conditions, and reasonable and supportable forecasts.
The following table presents the changes in the allowance for credit losses (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Balance at beginning of year | $ | 1,465 | $ | 1,238 | $ | 1,405 | |||||||||||
| Cumulative adjustment related to adoption of ASU 2016-13 | — | 108 | — | ||||||||||||||
| Provision for credit losses | 694 | 1,115 | 1,720 | ||||||||||||||
| Writeoffs, net of recoveries | (1,052) | (996) | (1,887) | ||||||||||||||
| Balance at end of year | $ | 1,107 | $ | 1,465 | $ | 1,238 | |||||||||||
Concentrations of Credit Risk and Significant Customers
Financial instruments that potentially subject the Company to credit risk consist of cash and cash equivalents and accounts receivable. The Company’s cash and cash equivalents are placed with high-quality financial institutions, which, at times, may exceed federally insured limits. The Company has not experienced any losses in these accounts, and the Company does not believe it is exposed to any significant credit risk related to cash and cash equivalents. The Company provides credit, in the normal course of business, to a number of its customers. The Company performs periodic credit evaluations of its customers and generally does not require collateral. No individual customer represented more than 10% of total revenues or more than 10% of accounts receivable in the years ended December 31, 2021, 2020 or 2019.
Property and Equipment
Property and equipment are carried at cost, less accumulated depreciation and amortization. Depreciation of property and equipment is computed using the straight-line method over each asset’s useful life. Leasehold improvements are amortized over the shorter of the lease term or of the estimated useful lives of the related assets. Upon retirement or disposal, the cost of each asset and the related accumulated depreciation are removed from the accounts and any resulting gain or loss is credited or charged to income. Repairs, maintenance, and minor replacements are expensed as incurred. The estimated useful lives of property and equipment are as follows:
| Computer hardware and equipment | 3 - 5 years | ||||
| Purchased software and licenses | 3 - 5 years | ||||
| Furniture and fixtures | 7 years | ||||
| Leasehold improvements | Lesser of estimated useful life or lease term | ||||
Business Combinations
We apply the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 805, Business Combinations, in accounting for our acquisitions which requires the acquisition purchase price to be allocated to the tangible and intangible assets acquired and liabilities assumed based on their estimated fair values at the acquisition dates. The excess of the purchase price over these estimated fair values is recorded to goodwill.
Significant estimates and assumptions, including fair value estimates, are used to determine the fair value of assets acquired, liabilities assumed, and contingent consideration transferred as well as the useful lives of long-lived assets acquired. During the measurement period, which may be up to one year from the acquisition date, we may record adjustments to the assets acquired and liabilities assumed with the corresponding offset to goodwill based on changes to our initial estimates and assumptions. Upon conclusion of the measurement period or final determination of the values of assets acquired and liabilities assumed, whichever comes first, any subsequent adjustments are recorded to Acquisition-related expenses on our consolidated statement of operations.
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Tangible assets are valued at their respective carrying amounts, which approximates their estimated fair value. The valuation of identifiable intangible assets reflects management’s estimates based on, among other factors, use of established valuation methods. Customer relationships are valued using the multi-period excess earnings method income approach, which estimates fair value based on the earnings and cash flow capacity of the subject asset. Developed technology and trade names are valued using the relief-from-royalty method, which estimates fair value based on the value the owner of the asset receives from not having to pay a royalty to use the asset.
The purchase price transferred in our acquisitions often contain holdback and contingent consideration provisions. Holdbacks are subject to reduction for indemnification claims and are typically payable within 12 to 18 months of the acquisition date and are recorded in Liabilities due to sellers of businesses on our consolidated balance sheets. Contingent consideration typically includes earnout payments payable within 6 to 18 months of the date of acquisition based on attainment of certain performance goals. Contingent consideration liabilities are recorded at fair value on the acquisition date and are remeasured periodically based on the then assessed fair value and adjusted, if necessary. Holdback and contingent consideration liabilities are recorded in Liabilities due to sellers of businesses on our consolidated balance sheet based on their estimated fair values. The estimated fair value of contingent consideration related to potential earnout payments is calculated utilizing a binary option model, and this amount is recorded in Liabilities due to sellers of businesses on our consolidated balance sheets. The fair value of contingent consideration is estimated on a quarterly basis through a collaborative effort by our sales and finance departments. Changes in the fair value of contingent consideration subsequent to the purchase price finalization are recorded as Acquisition-related expenses or Other income (expense), net on our consolidated statements of operations based on management’s assessment of the nature of the liability. In the event a holdback is reduced subsequent to the finalization of purchase accounting, the reduction is recorded as a gain in Acquisition-related expenses or Other income (expense), net on our consolidated statements of operations based on management’s assessment of the nature of the liability.
Goodwill and Other Intangibles
Goodwill is evaluated for impairment annually in October or more frequently when an event occurs or circumstances change that indicate the carrying value may not be recoverable. The events and circumstances considered by the Company include the business climate, legal factors, operating performance indicators and competition. The Company adopted ASU 2017-04, Intangibles - Goodwill and Other: Simplifying the Test for Goodwill Impairment during the first quarter of 2018 which eliminated step 2 from the goodwill impairment test.
As we operate as one reporting unit, the impairment test is performed at the consolidated entity level by comparing the estimated fair value of the Company to the its carrying value. We have elected to first assess qualitative factors to determine whether it is more likely than not that the fair value of our single reporting unit is less than its carrying value. Based on the qualitative assessment, if it is determined that it is more likely than not that the Company's fair value is less than its carrying value we would compare the carrying value of the Company's single reporting unit to its fair value and recognize any excess carrying value as an impairment loss. We further estimate the fair value of the reporting unit using a fair-value-based approach based on market capitalization to determine if it is more likely than not that the fair value of our reporting unit is less than its carrying amount.
Determining the fair value of goodwill is subjective in nature and often involves the use of estimates and assumptions including, without limitation, use of estimates of future prices and volumes for our products, capital needs, economic trends and other factors which are inherently difficult to forecast. If actual results, or the plans and estimates used in future impairment analyses are lower than the original estimates used to assess the recoverability of these assets, we could incur impairment charges in a future period.
No impairment of goodwill was identified during the years ended December 31, 2021, 2020 or 2019.
Identifiable intangible assets consist of customer relationships, marketing-related intangible assets and developed technology. Intangible assets with definite lives are amortized over their estimated useful lives on a straight-line basis. The straight-line method of amortization represents the Company’s best estimate of the distribution of the economic value of the identifiable intangible assets.
Intangible assets are reviewed for impairment whenever events or changes in circumstances indicate the carrying amount of intangible assets may not be recoverable. Conditions that would necessitate an impairment assessment include a significant decline in the observable market value of an asset, a significant change in the extent or manner in which an asset is used or any other significant adverse change that would indicate that the carrying amount of an asset or group of assets may not be recoverable. The Company evaluates the recoverability of intangible assets by comparing their carrying amounts to the future net undiscounted cash flows expected to be generated by the intangible assets. If such intangible assets are considered to be impaired, the impairment to be recognized is measured as the amount by which the carrying amount of the intangible assets exceeds the fair value of the assets.
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There were no impairments of our intangible assets during the years ended December 31, 2021, 2020 or 2019.
Long-Lived Assets
Long-lived assets are reviewed for impairment whenever events or circumstances indicate their carrying value may not be recoverable. When such events or circumstances arise, an estimate of future undiscounted cash flows produced by the asset, or the appropriate grouping of assets, is compared to the asset's carrying value to determine whether impairment exists. If the asset is determined to be impaired, the impairment loss is measured based on the excess of its carrying value over its fair value. Assets to be disposed of are reported at the lower of the carrying value or net realizable value. No indicators of impairment were identified during the years ended December 31, 2021, 2020 or 2019.
Software Development Costs
Software development costs are expensed as incurred until the point the Company establishes technological feasibility. Technological feasibility is established upon the completion of a working model. Costs incurred by the Company between establishment of technological feasibility and the point at which the product is ready for general release are capitalized, subject to their recoverability, and amortized over the economic life of the related products. Because the Company believes its current process for developing its software products essentially results in the completion of a working product concurrent with the establishment of technological feasibility, no software development costs have been capitalized to date. There were no software development costs required to be capitalized under ASC 985-20, Costs of Software to be Sold, Leased or Marketed. Software development costs associated with internal use software are incurred in three stages of development: the preliminary project stage, the application development stage, and the post-implementation stage. Costs incurred during the preliminary project and post-implementation stages are expensed as incurred. Eligible internal and external costs associated with significant upgrades and enhancements incurred during the application development stage are capitalized as property and equipment. During the years ended December 31, 2021, 2020 or 2019, there were no internal use software development costs capitalized under ASC 350-40, Internal-Use Software.
ASC 350-40 also requires hosting arrangements that are service contracts to follow the guidance for internal-use software to determine which implementation costs can be capitalized. In accordance with ASC 350-40, (i) capitalized implementation costs are classified in the same balance sheet line item as the amounts prepaid for the related hosting arrangement; (ii) amortization of capitalized implementation costs are presented in the same income statement line item as the service fees for the related hosting arrangement; and (iii) cash flows related to capitalized implementation costs are presented within the same category of cash flow activity as the cash flows for the related hosting arrangement (i.e. operating activity).
As of December 31, 2021 and 2020, the net carrying value of capitalized implementation costs related to hosting arrangements that were incurred during the application development stage were $0.3 million and $0.6 million, respectively. These costs related primarily to the implementation of a new ERP system. These capitalized implementation costs will be amortized over the expected term of the arrangement and are amortized in the same line item on our consolidated statements of operations as the expense for fees for the associated hosting arrangement.
Debt Issuance Costs
The Company capitalizes underwriting, legal, and other direct costs incurred related to the issuance of debt, which are recorded as a direct deduction from the carrying amount of the related debt liability and amortized to interest expense, net over the term of the related debt using the effective interest rate method. Upon the extinguishment of the related debt, any unamortized capitalized debt issuance costs are recorded to Interest expense, net on our consolidated statement of operations. During the year ended December 31, 2019, the Company wrote off debt issuance costs of $2.3 million as a Loss on debt extinguishment on our consolidated statements of operations, as a result of the paydown of our previous credit facility in connection with entering into the Company’s Credit Facility (as hereinafter defined) and discussed in “Note 7. Debt”. In 2021 and 2020, the Company had no write offs of debt issuance costs.
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Derivatives
The Company entered into floating-to-fixed interest rate swap agreements to limit exposure to interest rate risk related to our debt. These interest rate swaps effectively converted the entire balance of the Company's $540 million original principal term loans from variable interest payments to fixed interest rate payments, based on an annualized fixed rate of 5.4%, for the 7 year term of the debt. ASC 815, Derivatives and Hedging, requires entities to recognize derivative instruments as either assets or liabilities in the statement of financial position at fair value. The accounting for changes in the fair value (i.e., gains or losses) of a derivative instrument depends on whether it has been designated and qualifies as part of a hedging relationship and, further, on the type of hedging relationship. The Company assessed the effectiveness of the hedging relationship under the hypothetical derivative method and noted that all of the critical terms of the hypothetical derivative and hedging instrument were the same. The hedging relationship continues to limit the Company’s exposure to the variability in interest rates under the Company’s term loans and related cash outflows. As such, the Company has deemed this hedging relationship as highly effective in offsetting cash flows attributable to hedged risk (variability in forecasted monthly interest payments) for the term of the term loans and interest rate swap agreements. All derivative financial instruments are recorded at fair value as a net asset or liability on our consolidated balance sheets. The fair value of interest rate swaps included in Interest rate swap liabilities on our consolidated balance sheets as of December 31, 2021 and 2020 was $8.4 million and $30.0 million, respectively.
The change in the fair value of the hedging instruments is recorded in Unrealized gain (loss) on interest rate swaps on our consolidated statements of comprehensive income. Amounts deferred in Unrealized gain (loss) on interest rate swaps in our consolidated statements of comprehensive income will be reclassified to Interest expense, net on our consolidated statements of operations in the period in which the hedged item affects earnings.
Fair Value of Financial Instruments
The Company recognizes financial instruments in accordance with the authoritative guidance on fair value measurements and disclosures for financial assets and liabilities. This guidance defines fair value, establishes a framework for measuring fair value in accordance with GAAP, and expands disclosures about fair value measurements. The guidance also establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value.
These tiers include Level 1, defined as observable inputs, such as quoted prices in active markets; Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable; and Level 3, defined as unobservable inputs in which little or no market data exists, therefore, requiring an entity to develop its own assumptions.
The Company adopted ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework — Changes to the Disclosure Requirements for Fair Value Measurement, in the first quarter of 2020. Under ASU 2018-13, entities will no longer be required to disclose the amount of and reasons for transfers between Level 1 and Level 2 of the fair value hierarchy, but public business entities will be required to disclose the range and weighted average used to develop significant unobservable inputs for Level 3 fair value measurements.
The Company’s financial instruments consist principally of cash and cash equivalents, accounts receivable, accounts payable, and long–term debt. The carrying value of cash and cash equivalents, accounts receivable, and accounts payable approximate fair value, primarily due to short maturities. The carrying values of the Company’s debt instruments approximated their fair value based on rates currently available to the Company.
Revenue Recognition
Refer to “Note 13 Revenue Recognition” for a detailed discussion of accounting policies related to revenue recognition, including deferred revenue and deferred commissions.
Cost of Revenue
Cost of revenue primarily consists of salaries and related expenses (e.g. bonuses, employee benefits, and payroll taxes) for personnel directly involved in the delivery of services and products directly to customers. Cost of revenue also includes the amortization of acquired technology, and hosting and infrastructure costs related to the delivery of the Company’s products and services.
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Customer Relationship Acquisition Costs
Costs associated with the acquisition or origination of customer relationships are capitalized as customer relationship assets as incurred and amortized over the estimated life of the customer relationship. Refer to “Note 13. Revenue Recognition” for further discussion regarding deferred commissions.
Advertising Costs
Advertising costs are expensed in the period incurred. Advertising expenses were $0.9 million, $0.1 million and $0.1 million for the years ended December 31, 2021, 2020 or 2019, respectively. Advertising costs are recorded in Sales and marketing expenses on our consolidated statement of operations.
Income Taxes
The Company uses the asset and liability method of accounting for income taxes. Under this method, deferred tax assets and liabilities are recognized for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred tax assets and liabilities will be recognized in the period that includes the enactment date. A valuation allowance is established against the deferred tax assets to reduce their carrying value to an amount that is more likely than not to be realized.
The Company has adopted a permanent reinvestment position whereby foreign earnings for foreign subsidiaries are expected to be reinvested and future earnings are not expected to be repatriated. As a result of this policy, no tax liability has been accrued in anticipation of future dividends from foreign subsidiaries.
The Company accounts for uncertainty of income taxes based on a “more likely than not” threshold for the recognition and derecognition of tax positions. Interest and penalties are recorded as a component of income tax expense.
Leases
The Company determines if an arrangement is a lease at inception. This determination includes the review of contracts with third parties to identify the existence of potential embedded leases. Operating leases are included in operating lease right-of-use (“ROU”) assets, current and noncurrent operating lease liabilities on the Company’s consolidated balance sheets. Finance leases are included in property and equipment, accrued expenses and other liabilities, and other noncurrent liabilities on the Company’s consolidated balance sheets.
ROU assets represent the Company's right to use an underlying asset for the lease term and the corresponding lease liabilities represent its obligation to make lease payments arising from the lease. Lease ROU assets and lease liabilities are recognized based on the present value of the future minimum lease payments over the lease term at commencement date. The lease ROU asset includes any initial direct costs incurred and is reduced for any tenant incentives. As the Company’s leases do not provide an implicit rate, the net present value of future minimum lease payments is determined using the Company’s incremental borrowing rate. The Company’s lease terms may include options to extend or terminate the lease when it is reasonably certain the Company will exercise that option. Lease expense for minimum lease payments is recognized on a straight-line basis over the lease term.
Stock-Based Compensation
We measure all share-based payments, including grants of options to purchase common stock and the issuance of restricted stock or restricted stock units to employees, service providers and board members, using the fair-value at grant date. We record forfeitures as they occur. The cost of services received from employees and non-employees in exchange for awards of equity instruments is recognized on our consolidated statement of operations based on the estimated fair value of those awards on the grant date and amortized on a straight-line basis over the requisite service period. We value restricted stock and restricted stock units at the closing price of our common stock on the grant date. We value stock option awards using the Black-Scholes option-pricing model. For the years ended December 31, 2021, 2020 and 2019, stock-based compensation awards consisted primarily of restricted stock and restricted stock units.
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From time to time, we grant restricted stock units that also include performance or market-based conditions (“PRSUs”). For PRSUs granted with a market condition, we use a Monte Carlo simulation analysis to value the award. Compensation expense for awards with marked-based conditions is recognized over the required service period of the grant based on the grant date fair value of the award and is not subject to fluctuation due to achievement of the underlying market-based condition.
Significant assumptions used in the Monte Carlo simulation model for the PRSUs granted during the year ended December 31, 2021 and 2020 are as follows. No PRSUs were granted during the year ended December 31, 2019.
| Year Ended December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Expected volatility | 53.6% | 45.1% | |||||||||
| Risk-free interest rate | 0.1% | 1.3% | |||||||||
| Remaining performance period (in years) | 1.35 | 1.35 | |||||||||
| Dividend yield | — | — | |||||||||
Comprehensive Loss
The Company utilizes the guidance in ASC 220, Income Statement—Reporting Comprehensive Income, for the reporting and display of comprehensive loss and its components in the consolidated financial statements. Comprehensive loss consists of net loss, foreign currency translation adjustments for subsidiaries with functional currencies other than the United States dollar (“USD”), unrealized translation gains (losses) on foreign currency denominated intercompany loans, and unrealized gains (losses) on interest rate swaps. Refer to “Note 12. Stockholders' Equity—Accumulated Other Comprehensive Income (Loss)” for further discussion of the components of accumulated other comprehensive income (loss) for the years ended December 31, 2021, 2020 or 2019.
Foreign Currency Transactions
The functional currency of our foreign subsidiaries are primarily the local currencies. Results of operations for foreign subsidiaries are translated in USD using the average exchange rates on a monthly basis during the year. The assets and liabilities of those subsidiaries are translated into USD using the exchange rates in effect at the balance sheet date. The related translation adjustments are recorded as a separate component of the Company’s consolidated statements of stockholders' equity in accumulated other comprehensive loss. Assets and liabilities denominated in currencies other than the functional currency are remeasured using the current exchange rate for monetary accounts and historical exchange rates for non-monetary accounts, with exchange differences on remeasurement included in other expense, net in the accompanying statements of operations. For the years ended December 31, 2021 and 2020 net gains related to remeasurement of foreign currency transactions of $48.6 thousand and $0.2 million, respectively, were recorded in Other expense, net on our consolidated statements of operations. For the year ended December 31, 2019, net losses related to remeasurement of foreign currency transactions of $0.5 million were recorded in Other expense, net on our consolidated statements of operations.
We have foreign currency denominated intercompany loans that were used to fund the acquisition of foreign subsidiaries in 2018 and 2019. Due to the long-term nature of the loans, the foreign currency gains (losses) resulting from remeasurement are recognized as a separate component of the Company’s consolidated statements of stockholders' equity in accumulated other comprehensive loss. During the years ended December 31, 2021, the balances of these intercompany loans were converted to USD. During the years ended December 31, 2021, 2020 and 2019, a translation loss of $0.6 million, gain of $2.3 million, and gain of $2.2 million, respectively, were recognized as a component of accumulated other comprehensive loss in the Company’s statements of stockholders’ equity, related to long-term intercompany loans.
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Recent Accounting Pronouncements
Recently issued accounting pronouncements not yet adopted
In March 2020, the FASB issued Accounting Standards Update (“ASU”) 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting, which provides optional guidance for a limited time to ease the potential burden in accounting for reference rate reform. The new guidance provides optional expedients and exceptions for applying GAAP to contracts, hedging relationships and other transactions affected by reference rate reform if certain criteria are met. The amendments apply only to contracts and hedging relationships that reference LIBOR or another reference rate expected to be discontinued due to reference rate reform. These amendments are effective immediately and may be applied prospectively to contract modifications made and hedging relationships entered into or evaluated on or before December 31, 2022. The Company does not anticipate the adoption of this standard to have a material impact on its consolidated financial statements.
In October 2021, the FASB issued ASU 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers, which creates an exception to the general recognition and measurement principle for contract assets and contract liabilities from contracts with customers acquired in a business combination. The new guidance will require companies to apply the definition of a performance obligation under ASC Topic 606 to recognize and measure contract assets and contract liabilities (i.e., deferred revenue) relating to contracts with customers that are acquired in a business combination. Under current GAAP, an acquirer in a business combination is generally required to recognize and measure the assets it acquires and the liabilities it assumes at fair value on the acquisition date. The new guidance will result in the acquirer recording acquired contract assets and liabilities on the same basis that would have been recorded by the acquiree before the acquisition under ASC Topic 606. These amendments are effective for fiscal years beginning after December 15, 2022, with early adoption permitted. The Company is evaluating the impact of this standard on our consolidated financial statements.
3. Acquisitions
The Company performs quantitative and qualitative analyses to determine the significance of each acquisition to its consolidated financial statements. As such, the acquisitions below were deemed to be insignificant on an individual and cumulative basis.
2021 Acquisitions
Acquisitions completed during the year ended December 31, 2021 include the following:
•Panviva - On June 24, 2021, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Panviva Pty Ltd, an Australian proprietary company (“Panviva”), a cloud-based enterprise knowledge management solution. Revenues recorded since the acquisition date through December 31, 2021 were approximately $3.9 million.
•BlueVenn - On February 28, 2021 the Company entered into an agreement to purchase the shares comprising the entire issued share capital of BlueVenn Group Limited, a company limited by shares organized and existing under the laws of England and Wales (“BlueVenn”), a cloud-based customer data platform. Revenues recorded since the acquisition date through December 31, 2021 were approximately $12.6 million.
•Second Street - On January 19, 2021, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Second Street Media, Inc., a Missouri corporation (“Second Street”), an audience engagement platform. Revenues recorded since the acquisition date through December 31, 2021 were approximately $10.2 million.
•See “Note 17. Subsequent Events” for discussion of the acquisitions of Objectif Lune Inc. and BA-Insight, Inc., which were completed subsequent to December 31, 2021.
We determined that disclosing the amount of Panviva, BlueVenn and Second Street related earnings included in the consolidated statements of operations is impracticable, as certain operations of Panviva, BlueVenn and Second Street were integrated into the operations of the Company from the date of acquisition.
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2020 Acquisitions
The acquisition completed during the year ended December 31, 2020 include the following:
•Localytics - On February 6, 2020, the Company entered into an agreement to purchase the shares comprising the entire issued share capital of Char Software, Inc (dba Localytics), a Delaware corporation (“Localytics”), a provider of mobile app personalization and analytics solutions.
2019 Acquisitions
Acquisitions completed during the year ended December 31, 2019 include the following:
•Postup - On April 18, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of Postup Holdings, LLC, a Texas limited liability company (“Postup”), and Postup Digital, LLC, a Texas limited liability company, an Austin-based company providing email and audience development solutions for publishing & media brands.
•Kapost - On May 24, 2019, the Company completed of its purchase of the shares comprising the entire issued share capital of Daily Inches, Inc., d/b/a Kapost, a Delaware corporation (“Kapost”), a content operations platform provider for sales and marketing.
•Cimpl - On August 21, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of Cimpl, Inc., a Canadian corporation (“Cimpl”), a cloud-based telecom expense management platform.
•InGenius - On October 1, 2019, the Company completed its purchase of the shares comprising the entire issued share capital of InGenius Software Inc., a Canadian corporation (“InGenius”), a Computer Telephony Integration (CTI) solution for enterprise contact centers.
•Altify - On October 4, 2019, the Company’s wholly owned subsidiary, Upland Software UK, a limited company incorporated under the laws of England and Wales, entered into an agreement to purchase the shares comprising the entire issued share capital of Altify Ireland Limited, a private company limited by shares organized and existing under the laws of Ireland (“Altify”), a customer revenue optimization (CRO) cloud solution for sales and the extended revenue teams.
Consideration
The following table summarizes the consideration transferred for the acquisitions described above (in thousands):
| Panviva | BlueVenn | Second Street | Localytics | Altify | InGenius | Cimpl | Kapost | Postup | |||||||||||||||||||||||||||||||||||||||||||||
| Cash | $ | 19,931 | $ | 53,535 | $ | 25,436 | $ | 67,655 | $ | 84,000 | $ | 26,428 | $ | 23,071 | $ | 45,000 | $ | 34,825 | |||||||||||||||||||||||||||||||||||
Holdback(1) | 3,517 | 2,429 | 5,000 | 345 | — | 3,000 | 2,600 | 5,000 | 175 | ||||||||||||||||||||||||||||||||||||||||||||
Contingent consideration(2) | — | 2,535 | 1,650 | 1,000 | — | 4,865 | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
Working capital and other adjustments (3) | 379 | (537) | (1,365) | (5,238) | — | — | — | (601) | — | ||||||||||||||||||||||||||||||||||||||||||||
| Total consideration | $ | 23,827 | $ | 57,962 | $ | 30,721 | $ | 63,762 | $ | 84,000 | $ | 34,293 | $ | 25,671 | $ | 49,399 | $ | 35,000 | |||||||||||||||||||||||||||||||||||
(1)Represents cash holdbacks subject to indemnification claims that are payable 12 months from closing for Panviva, Second Street, Localytics, InGenius, Cimpl, Kapost and Postup and 18 months following the closing of BlueVenn.
(2)Represents the acquisition date fair value of anticipated earnout payments which are based on the estimated probability of attainment of the underlying future performance-based conditions at the time of acquisition. The maximum potential payout for the BlueVenn, Second Street, Localytics and InGenius earnouts were $21.7 million, $3.0 million, $1.0 million and $15.0 million, respectively. As of December 31, 2021, the fair value of the earnouts for BlueVenn and Second Street were zero. The earnout for Localytics and InGenius were paid in full during the year ended December 31, 2020 based on an ending fair value of $1.0 million and $4.5 million, respectively. Refer to “Note 4. Fair Value Measurements” for further discussion regarding the calculation of fair value of acquisition related earnouts and subsequent payouts.
(3)Working capital and other adjustments includes a $5.2 million reduction in total consideration for Localytics related to a representation and warranty insurance settlement which is included in Prepaids and other on our consolidated balance sheets as of December 31, 2020 and a $1.4 million reduction in total consideration for Second Street related to an indemnification claim which was charged to Liabilities due to sellers of businesses (Holdback) on our consolidated balance sheets during 2021.
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Fair Value of Assets Acquired and Liabilities Assumed
The Company recorded the purchase of the acquisitions described above using the acquisition method of accounting and, accordingly, recognized the assets acquired and liabilities assumed at their fair values as of the date of the acquisition. The purchase accounting for the 2021 acquisitions of Panviva are BlueVenn are preliminary as the Company has not finalized the tax impact of these acquisitions. Management has recorded the purchase price allocations based upon acquired company information that is currently available. Management expects to complete the purchase accounting for BlueVenn no later than the first quarter of 2022 and no later than the second quarter of 2022 for Panviva.
The following condensed table presents the finalized acquisition-date fair value of the assets acquired and liabilities assumed for the acquisitions closed in 2020 and 2021 (in thousands):
| Preliminary | Final | ||||||||||||||||||||||
| Panviva | BlueVenn | Second Street | Localytics | ||||||||||||||||||||
| Year Acquired | 2021 | 2021 | 2021 | 2020 | |||||||||||||||||||
| Cash | $ | 132 | $ | 1,115 | $ | — | $ | — | |||||||||||||||
| Accounts receivable | 2,122 | 1,289 | 1,105 | 3,648 | |||||||||||||||||||
| Other current assets | 4,985 | 1,983 | 89 | 6,323 | |||||||||||||||||||
| Operating lease right-of-use asset | 197 | 1,357 | 489 | 7,605 | |||||||||||||||||||
| Property and equipment | 26 | 611 | 156 | 409 | |||||||||||||||||||
| Customer relationships | 9,757 | 18,888 | 14,600 | 30,500 | |||||||||||||||||||
| Trade name | 76 | 238 | 200 | 300 | |||||||||||||||||||
| Technology | 2,194 | 4,337 | 3,400 | 6,600 | |||||||||||||||||||
| Goodwill | 16,604 | 44,646 | 16,586 | 33,543 | |||||||||||||||||||
| Other assets | 33 | 24 | 13 | 6 | |||||||||||||||||||
Total assets acquired | 36,126 | 74,488 | 36,638 | 88,934 | |||||||||||||||||||
| Accounts payable | (1,257) | (2,772) | (230) | (2,382) | |||||||||||||||||||
| Accrued expense and other | (5,053) | (2,164) | (378) | (6,761) | |||||||||||||||||||
| Deferred tax liabilities | (2,395) | (3,640) | (4,320) | (3,382) | |||||||||||||||||||
| Deferred revenue | (3,397) | (6,593) | (500) | (4,812) | |||||||||||||||||||
| Operating lease liabilities | (197) | (1,357) | (489) | (7,835) | |||||||||||||||||||
Total liabilities assumed | (12,299) | (16,526) | (5,917) | (25,172) | |||||||||||||||||||
| Total consideration | $ | 23,827 | $ | 57,962 | $ | 30,721 | $ | 63,762 | |||||||||||||||
The Company uses third party valuation consultants to determine the fair values of assets acquired and liabilities assumed. Tangible assets are valued at their respective carrying amounts, which approximates their estimated fair value. The valuation of identifiable intangible assets reflects management’s estimates based on, among other factors, use of established valuation methods. Customer relationships are valued using the multi-period excess earnings method. Developed technology and trade names are valued using the relief-from-royalty method.
The following table summarizes the weighted-average useful lives, by major finite-lived intangible asset class, for intangibles acquired during the years ended December 31, 2021 and 2020 (in years):
| Useful Life | |||||||||||
| December 31, 2021 | December 31, 2020 | ||||||||||
| Customer relationships | 7.0 | 8.0 | |||||||||
| Trade name | 2.0 | 2.0 | |||||||||
| Developed technology | 5.0 | 5.0 | |||||||||
| Total weighted-average useful life | 6.6 | 7.4 | |||||||||
During the measurement period, which may be up to one year from the acquisition date, the Company records adjustments to the assets acquired and liabilities assumed with the corresponding offset to goodwill based on changes to management’s estimates and assumptions. The change in the preliminary acquisition-date fair value of assets and liabilities for Localytics during the year ended December 31, 2020 was related primarily to a $0.9 million decrease in deferred tax liabilities. The
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change in the preliminary acquisition-date fair value of assets and liabilities for BlueVenn and Panviva during the year ended December 31, 2021 was related primarily to an increase in identified intangible assets. We expect to finalize our analysis of certain tax-related considerations during the first quarter of 2022.
The goodwill of $111.4 million for the above acquisitions is primarily attributable to the synergies expected to arise after the acquisition. Goodwill deductible for tax purposes related to the above acquisitions was $2.0 million.
Total transaction costs incurred with respect to acquisition activity in the years ended December 31, 2021, 2020 and 2019 were $6.6 million, $4.3 million and $11.3 million, respectively. These costs are included in Acquisition-related expenses on our consolidated statement of operations.
Other Acquisitions and Divestitures
From time to time we may purchase or sell customer relationships that meet certain criteria. We had no purchase or sale of customer relationships during the year ended December 31, 2021. During the year ended December 31, 2020, we completed customer relationship acquisitions totaling $0.2 million.
4. Fair Value Measurements
Fair value is defined as the exit price, or the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants as of the measurement date. GAAP sets forth a three–tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. The three tiers are Level 1, defined as observable inputs, such as quoted market prices in active markets; Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable; and Level 3, defined as unobservable inputs in which little or no market data exists, which therefore requires an entity to develop its own assumptions.
As of December 31, 2021 and 2020 the Company had contingent accrued earnout business acquisition consideration liabilities for which fair values are measured as Level 3 instruments. These contingent consideration liabilities were recorded at fair value on the acquisition date and are remeasured periodically based on the then assessed fair value and adjusted, if necessary. The increases or decreases in the fair value of contingent consideration payable can result from changes in anticipated revenue levels or changes in assumed discount periods and rates. As the fair value measure is based on significant inputs that are not observable in the market, they are categorized as Level 3. Any gain (loss) related to subsequent changes in the fair value of contingent consideration is recorded in Acquisition-related expense or Other income (expense), net on our consolidated statements of operations based on management's assessment of the nature of the liability. Earnout consideration liabilities are included in Liabilities due to sellers of businesses on our consolidated balance sheets.
In connection with entering into, and expanding, the Company's credit facility, as discussed further in “Note 7. Debt”, the Company entered into interest rate swaps for the full 7 year term of the Company’s term loans, effectively fixing our interest rate at 5.4% for the full value of the Company’s term loans. The fair value of this swap is measured at the end of each interim reporting period based on the then assessed fair value and adjusted if necessary. As the fair value measure is based on the market approach, they are categorized as Level 2. As of December 31, 2021 and 2020 the fair value of the interest rate swaps are included in Interest rate swap liabilities and Other assets, respectively, on our consolidated balance sheets.
Liabilities measured at fair value on a recurring basis are summarized below (in thousands):
| Fair Value Measurements at December 31, 2021 | |||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||
| Liabilities: | |||||||||||||||||||||||
| Interest rate swap liability | $ | — | $ | 8,409 | $ | — | $ | 8,409 | |||||||||||||||
| Fair Value Measurements at December 31, 2020 | |||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||
| Liabilities: | |||||||||||||||||||||||
| Interest rate swap liability | $ | — | $ | 30,032 | $ | — | $ | 30,032 | |||||||||||||||
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The following table presents additional information about earnout consideration liabilities measured at fair value on a recurring basis and for which we have utilized significant unobservable (Level 3) inputs to determine fair value:
| December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Beginning balance | $ | — | $ | 4,394 | |||||||
| Remeasurement adjustments: | |||||||||||
| (Gain) loss included in earnings | (4,169) | 155 | |||||||||
| Foreign currency translation adjustments | (16) | — | |||||||||
| Acquisitions and settlements: | |||||||||||
| Acquisitions | 4,185 | 1,000 | |||||||||
Settlements (1) | — | (5,549) | |||||||||
| Ending balance | $ | — | $ | — | |||||||
(1)The year ended December 31, 2020 includes payments of $1.0 million and $4.5 million for the outstanding balance of earnout liabilities related to the acquisition of Localytics and InGenius, respectively, as described in “Note 3. Acquisitions”.
Sensitivity to Changes in Significant Unobservable Inputs
As presented in the table above, the significant unobservable inputs used in the fair value measurement of contingent consideration related to business acquisitions are forecasts of expected future annual revenues as developed by the Company's management and the probability of achievement of those revenue forecast. Significant increases (decreases) in these unobservable inputs in isolation would likely result in a significantly (lower) higher fair value measurement.
Debt
The Company believes the carrying value of its long-term debt at December 31, 2021 approximates its fair value based on the variable interest rate feature or based upon interest rates currently available to the Company. The estimated fair value and carrying value of the Company's debt, before debt discount, at December 31, 2021 and December 31, 2020 are $527.9 million and $533.3 million, respectively, based on valuation methodologies using interest rates currently available to the Company which are Level 2 inputs.
5. Goodwill and Other Intangible Assets
Changes in the Company’s goodwill balance for each of the two years in the period ended December 31, 2021 are summarized in the table below (in thousands):
| Goodwill Adjustments | ||||||||
| Balance at December 31, 2019 | $ | 346,134 | ||||||
| Acquired in business combinations | 39,646 | |||||||
Adjustment related to prior year business combinations (1) | (996) | |||||||
| Adjustment related to finalization of business combinations | (6,103) | |||||||
| Foreign currency translation adjustment | 4,917 | |||||||
| Balance at December 31, 2020 | $ | 383,598 | ||||||
| Acquired in business combinations | 85,102 | |||||||
| Adjustment related to finalization of current year business combinations | (7,266) | |||||||
| Foreign currency translation adjustment | (3,962) | |||||||
| Balance at December 31, 2021 | $ | 457,472 | ||||||
(1)Related to changes in the ASC 805 valuation of intangible assets in the prior year business combination of Altify.
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Intangible assets, net, include the estimated acquisition-date fair values of customer relationships, marketing-related assets and developed technology that the Company recorded as part of its business acquisitions purchases and from acquisitions of customer relationships. The following is a summary of the Company’s Intangible assets, net (in thousands):
| Estimated Useful Life (Years) | Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | ||||||||||||||||||||
| December 31, 2021 | |||||||||||||||||||||||
| Customer relationships | 1-10 | $ | 358,943 | $ | 126,329 | $ | 232,614 | ||||||||||||||||
| Trade name | 1.5-10 | 9,714 | 5,752 | 3,962 | |||||||||||||||||||
| Developed technology | 4-9 | 88,548 | 45,204 | 43,344 | |||||||||||||||||||
| Non-compete agreements | 3 | $ | 1,148 | $ | 1,148 | $ | — | ||||||||||||||||
| Total intangible assets | $ | 458,353 | $ | 178,433 | $ | 279,920 | |||||||||||||||||
| Estimated Useful Life (Years) | Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | ||||||||||||||||||||
| December 31, 2020 | |||||||||||||||||||||||
| Customer relationships | 1-10 | $ | 318,941 | $ | 89,131 | $ | 229,810 | ||||||||||||||||
| Trade name | 1.5-10 | 9,283 | 4,763 | 4,520 | |||||||||||||||||||
| Developed technology | 4-9 | 79,382 | 33,929 | 45,453 | |||||||||||||||||||
| Non-compete agreements | 3 | 1,148 | 956 | 192 | |||||||||||||||||||
| Total intangible assets | $ | 408,754 | $ | 128,779 | $ | 279,975 | |||||||||||||||||
The Company periodically reviews the estimated useful lives of its identifiable intangible assets, taking into consideration any events or circumstances that might result in either a diminished fair value or revised useful life. During the years ended December 31, 2021 and 2020, the Company considered the current market environment and economic conditions arising from the ongoing COVID-19 pandemic as a potential indicator of impairment of its intangible assets and goodwill. During the fourth quarter of 2019, management made the decision to sunset and divest certain minor non-strategic customer contracts and related website management and analytics assets. The remaining useful life of certain customer relationship assets included in the sunset asset group were reduced by 1 year to 2.5 years which represents the term left on the current active contracts. Management has determined there have been no other changes in the useful life during the years ended December 31, 2021, 2020, and 2019. No impairment was recorded during the years ended December 31, 2021, 2020 and 2019. Total amortization expense was $50.9 million, $44.9 million, and $32.4 million during the years ended December 31, 2021, 2020 and 2019, respectively.
As of December 31, 2021, the estimated annual amortization expense for the next five years and thereafter is as follows (in thousands):
| Year ending December 31: | Amortization Expense | |||||||
| 2022 | $ | 49,288 | ||||||
| 2023 | 46,944 | |||||||
| 2024 | 44,593 | |||||||
| 2025 | 41,318 | |||||||
| 2026 | 38,693 | |||||||
| Thereafter | 59,084 | |||||||
| Total | $ | 279,920 | ||||||
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6. Income Taxes
The Company's loss from continuing operations before income taxes for the year ended December 31, was as follows (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Loss before provision for income taxes: | |||||||||||||||||
| United States | $ | (53,981) | $ | (43,851) | $ | (41,237) | |||||||||||
| Foreign | (12,575) | (11,602) | (10,939) | ||||||||||||||
| $ | (66,556) | $ | (55,453) | $ | (52,176) | ||||||||||||
The components of the provision (benefit) for income taxes attributable to continuing operations are as follows (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Current | |||||||||||||||||
| Federal | $ | — | $ | — | $ | (10) | |||||||||||
| State | 363 | 402 | 395 | ||||||||||||||
| Foreign | 2,349 | 2,449 | 1,989 | ||||||||||||||
| Total Current | $ | 2,712 | $ | 2,851 | $ | 2,374 | |||||||||||
| Deferred | |||||||||||||||||
| Federal | $ | (5,180) | $ | (2,275) | $ | (5,139) | |||||||||||
| State | (1,033) | (137) | (103) | ||||||||||||||
| Foreign | (4,843) | (4,673) | (3,937) | ||||||||||||||
| Total Deferred | (11,056) | (7,085) | (9,179) | ||||||||||||||
| (Benefit from) provision for income taxes | $ | (8,344) | $ | (4,234) | $ | (6,805) | |||||||||||
As of December 31, 2021 the Company had total net operating loss carryforwards of approximately $365.8 million consisting of $327.3 million and $38.5 million related to the U.S federal and foreign net operating loss carryforwards, respectively. In addition, as of December 31, 2021, the Company had research and development credit carryforwards of approximately $4.4 million. The U.S. federal net operating loss and credit carryforwards will expire beginning in 2022, if not utilized. Utilization of the U.S. federal net operating losses and tax credits may be subject to substantial annual limitation due to the “change of ownership” provisions of the Internal Revenue Code of 1986. The annual limitation will result in the expiration of approximately $155.0 million of U.S. federal net operating losses and $4.4 million of credit carryforwards before utilization. The U.S. federal net operating loss and credit carryforwards will expire beginning in 2022, if not utilized, with $36.6 million of net operating losses carrying forward indefinitely. The entirety of the $38.5 million of the foreign net operating loss carryforwards carry forward indefinitely.
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Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company’s deferred taxes as of December 31 are as follows (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Deferred tax assets: | |||||||||||||||||
| Accrued expenses and allowances | $ | 2,197 | $ | 2,095 | $ | 2,616 | |||||||||||
| Deferred revenue | 536 | 613 | 28 | ||||||||||||||
| Stock compensation | 1,558 | 1,151 | 1,157 | ||||||||||||||
| Net operating loss and tax credit carryforwards | 53,388 | 53,157 | 45,716 | ||||||||||||||
| Disallowed interest expense carryforwards | 15,654 | 11,599 | 6,692 | ||||||||||||||
| Capital expenses | 321 | 286 | 192 | ||||||||||||||
| Tax credit carryforwards | — | 600 | 991 | ||||||||||||||
| Lease liability | 2,340 | 3,054 | 2,177 | ||||||||||||||
| Unrealized losses | 1,974 | 7,617 | — | ||||||||||||||
| Other | 638 | 658 | 696 | ||||||||||||||
| Valuation allowance for noncurrent deferred tax assets | (28,627) | (35,701) | (21,179) | ||||||||||||||
| Net deferred tax assets | $ | 49,979 | $ | 45,129 | $ | 39,086 | |||||||||||
| Deferred tax liabilities: | |||||||||||||||||
| Prepaid expenses | $ | (272) | $ | (260) | $ | (210) | |||||||||||
| Intangible assets | (59,092) | (56,541) | (53,737) | ||||||||||||||
| Goodwill | (6,570) | (5,954) | (5,187) | ||||||||||||||
| Tax credit carryforwards | (99) | — | — | ||||||||||||||
| Right of use asset | (1,330) | (2,597) | (2,135) | ||||||||||||||
| Unrealized gains | — | — | (1,184) | ||||||||||||||
| Deferred commissions | (5,409) | (3,869) | (2,318) | ||||||||||||||
| Net deferred tax liabilities | $ | (72,772) | $ | (69,221) | $ | (64,771) | |||||||||||
| Net deferred taxes | $ | (22,793) | $ | (24,092) | $ | (25,685) | |||||||||||
Due to the uncertainty surrounding the timing of realizing the benefits of its domestic favorable tax attributes in future tax returns, the Company has placed a valuation allowance against its domestic net deferred tax assets, exclusive of goodwill. During the years ended December 31, 2021 and 2020, the valuation allowance decreased by approximately $7.1 million and increased by approximately $14.5 million, respectively. The valuation allowance for the year ended December 31, 2021 decreased by approximately $5.7 million due to the tax effect of items recorded in other comprehensive income and approximately $6.4 million due to acquired net deferred tax liabilities as a result of domestic business combinations, which was recorded as an income tax benefit, which is partially offset with the remaining increase of approximately $5.0 million related primarily to current operations. The valuation allowance for the year ended December 31, 2020 increased by approximately $10.7 million due to the tax effect of items recorded in other comprehensive income and decreased approximately $2.4 million due to acquired net deferred tax liabilities as a result of domestic business combinations, which was recorded as an income tax benefit, with the remaining increase of approximately $6.2 million related to primarily current operations.
At December 31, 2021, we did not provide deferred income taxes on temporary differences resulting from earnings of certain foreign subsidiaries which are indefinitely reinvested. The reversal of these temporary differences could result in additional tax; however, it is not practicable to estimate the amount of any unrecognized deferred income tax liabilities at this time. Deferred income taxes are provided as necessary with respect to earnings that are not indefinitely reinvested.
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The Company’s provision for income taxes differs from the expected tax expense (benefit) computed by applying the statutory federal income tax rate to income before taxes due to the following:
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Federal statutory rate | 21.0 | % | 21.0 | % | 21.0 | % | |||||||||||
| State taxes, net of federal benefit | 1.5 | % | 1.6 | % | 2.7 | % | |||||||||||
| Tax credits | 0.6 | % | (0.1) | % | 1.4 | % | |||||||||||
| Effect of foreign operations | (0.6) | % | (1.1) | % | (1.0) | % | |||||||||||
| Stock compensation | (5.4) | % | (0.3) | % | 4.1 | % | |||||||||||
| Disallowed excess executive compensation | (5.3) | % | (4.0) | % | (2.1) | % | |||||||||||
| Permanent items and other | 0.1 | % | (0.7) | % | (2.3) | % | |||||||||||
| Change in valuation allowance | 1.1 | % | (8.8) | % | (10.8) | % | |||||||||||
| Change in tax rates | (2.6) | % | — | % | — | % | |||||||||||
| Australia tax basis uplift | 2.1 | % | — | % | — | % | |||||||||||
| 12.5 | % | 7.6 | % | 13.0 | % | ||||||||||||
Under ASC 740-10, Income Taxes - Overall, the Company periodically reviews the uncertainties and judgments related to the application of complex income tax regulations to determine income tax liabilities in several jurisdictions. The Company uses a “more likely than not” criterion for recognizing an asset for unrecognized income tax benefits or a liability for uncertain tax positions. The Company has determined it has the following unrecognized assets or liabilities related to uncertain tax positions as of December 31, 2021. It is reasonably possible that a reduction of $0.8 million of unrecognized tax benefits may occur within the next 12 months due to the expiration of statutes of limitation, affecting our income tax provision and therefore benefit the resulting effective tax rate. The actual amount could very depending on any actual settlement prior to the expiration of statutes of limitation. To the extent the Company is required to recognize interest and penalties related to unrecognized tax liabilities, this amount will be recorded as an accrued liability, (in thousands).
| Balance at December 31, 2019 | $ | 689 | |||
| Additional based on tax positions related to the current year | — | ||||
| Additions for tax positions of prior years | — | ||||
| Reductions for tax positions of prior years | (79) | ||||
| Settlements | — | ||||
| Balance at December 31, 2020 | $ | 610 | |||
| Additional based on tax positions related to the current year | — | ||||
| Additions for tax positions of prior years | 162 | ||||
| Reductions for tax positions of prior years | — | ||||
| Settlements | — | ||||
| Balance at December 31, 2021 | $ | 772 | |||
If the Company were to recognize unrecognized tax benefits as of December 31, 2021, $0.8 million would impact the effective tax rate. The Company’s assessment of its unrecognized tax benefits is subject to change as a function of the Company’s financial statement audit.
The Company recognizes interest and penalties related to uncertain tax positions in income tax expense. As of December 31, 2021, the Company had accrued $0.4 million of interest or penalties related to uncertain tax positions, none of which is expected to reverse in the next 12 months.
The Company and its subsidiaries file tax returns in the U.S. federal jurisdiction and in several state and foreign jurisdictions. The Company is no longer subject to U.S. federal income tax examinations for years ending before December 31, 2017 and is no longer subject to state and local or foreign income tax examinations by tax authorities for years ending before December 31, 2016. The Company is not currently under audit for federal, state or any foreign jurisdictions. US operating losses generated in years prior to 2017 remain open to adjustment until the statute of limitations closes for the tax year in which the net operating losses are utilized.
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7. Debt
Long-term debt consisted of the following at December 31, 2021 and December 31, 2020 (in thousands):
| December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
Senior secured loans (includes unamortized discount of $9,520 and $11,648 based on an imputed interest rate of 5.8% and 5.8%, at December 31, 2021 and December 31, 2020, respectively) | $ | 518,330 | $ | 521,603 | |||||||
| Less current maturities | (3,167) | (3,166) | |||||||||
| Total long-term debt | $ | 515,163 | $ | 518,437 | |||||||
Credit Facility
On August 6, 2019, the Company entered into a credit agreement (the “Credit Facility”) which provides for (i) a fully-drawn $350 million, 7 year, senior secured term loan B facility (the “Term Loan”) and (ii) a $60 million, 5 year, revolving credit facility (the “Revolver”) that was fully available as of December 31, 2021. The Credit Facility replaced the Company's previous credit facility. All outstanding balances under our previous credit facility were paid off using proceeds from our Credit Facility.
On November 26, 2019 (the “Closing Date”), the Company entered into a First Incremental Assumption Agreement (the “Incremental Assumption Agreement”) which provides for a term loan facility to be established under the Credit Facility in an aggregate principal amount of $190.0 million (the “2019 Incremental Term Loan”), which is in addition to the existing $350 million term loans outstanding under the Credit Facility and the $60 million Revolver under the Credit Facility.
Payment terms
The Term Loans (including the 2019 Incremental Term Loan) are repayable on a quarterly basis beginning on December 31, 2019 by an amount equal to 0.25% (1.00% per annum) of the aggregate principal amount of such loan. Any amount remaining unpaid is due and payable in full on August 6, 2026 (the “Term Loan Maturity Date”).
At the option of the Company, the Term Loans (including the 2019 Incremental Term Loan) accrue interest at a per annum rate based on (i) the Base Rate plus a margin of 2.75% or (ii) the rate (not less than 0.00%) for Eurodollar deposits quoted on the LIBOR01 or LIBOR02 pages on the Reuters Screen, or as otherwise determined in accordance with the Credit Facility (based on a period equal to 1, 2, 3 or 6 months or, if available and agreed to by all relevant Lenders and the Agent, 12 months or such period of less than 1 month) plus a margin of 3.75%. The Base Rate for any day is a rate per annum equal to the greatest of (i) the prime rate in effect on such day, (ii) the federal funds effective rate (not less than 0.00%) in effect on such day plus ½ of 1.00%, and (ii) the Eurodollar rate for a one month interest period beginning on such day plus 1.00%.
Accrued interest on the loans will be paid quarterly or, with respect to loans that are accruing interest based on the Eurodollar rate, at the end of the applicable interest rate period.
Interest rate swaps
On August 6, 2019, the Company entered into an interest rate hedge instrument for the full 7 year term, effectively fixing our interest rate at 5.4% for the Term Loan. In addition, on November 26, 2019, the Company entered into interest rate swap agreements to hedge the interest rate risk associated with the Company’s floating rate obligations under the 2019 Incremental Term Loan. These interest rate swaps fix the Company's interest rate (including the hedge premium) at 5.4% for the term of the Credit Facility. The interest rate associated with our new $60 million, 5 year, Revolver remains floating.
The interest rate swap has been designated as a cash flow hedge and is valued using a market approach, which is a Level 2 valuation technique. At December 31, 2021, the fair value of the interest rate swap was a $8.4 million liability as a result of a increase in short term interest rates from 2020 to 2021. In the next twelve months, the Company estimates that $1.9 million will be reclassified from Accumulated other comprehensive income (loss) to Interest expense, net on our consolidated statement of operations.
| Year Ended December 31 | ||||||||||||||||||||
| 2021 | 2020 | 2019 | ||||||||||||||||||
| Unrealized gain (loss) recognized in Other comprehensive income on interest rate swaps | $ | 21,623 | $ | (32,455) | $ | 2,424 | ||||||||||||||
| Gain (loss) on interest rate swap (included in Interest expense, net on our consolidated statement of operations) | $ | (8,250) | $ | (5,500) | $ | 484 | ||||||||||||||
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Revolver
Loans under the Revolver are available up to $60 million, of which none is currently outstanding. The Revolver provides a sub facility whereby the Company may request letters of credit (the “Letters of Credit”) in an aggregate amount not to exceed, at any one time outstanding, $10.0 million for the Company. The aggregate amount of outstanding Letters of Credit are reserved against the credit availability under the Maximum Revolver Amount. The Company incurs a 0.50% per annum unused line fee on the unborrowed balance of the Revolver which is paid quarterly.
Loans under the Revolver may be borrowed, repaid and reborrowed until August 6, 2024 (the “Maturity Date”), at which time all amounts borrowed under the Revolver must be repaid. As of December 31, 2021, the Company had no borrowings outstanding under the Revolver or related sub facility.
Covenants
The Credit Facility contains customary affirmative and negative covenants. The negative covenants limit the ability of the Loan Parties to, among other things (in each case subject to customary exceptions for a credit facility of this size and type):
•Incur additional indebtedness or guarantee indebtedness of others;
•Create liens on our assets;
•Make investments, including certain acquisitions;
•Enter into mergers or consolidations;
•Dispose of assets;
•Pay dividends and make other distributions on the Company’s capital stock, and redeem and repurchase the Company’s capital stock;
•Enter into transactions with affiliates; and
•Prepay indebtedness or make changes to certain agreements.
The Credit Facility has no financial covenants as long as less than 35% of the Revolver is drawn as of the last day of any fiscal quarter. If 35% of the Revolver is drawn as of the last day of a given fiscal quarter, the Company will be required to maintain a Total Leverage Ratio (the ratio of funded indebtedness as of such date less the amount of unrestricted cash and cash equivalents of the Company and its guarantors in an amount not to exceed $50.0 million, to Adjusted EBITDA (calculated on a pro forma basis including giving effect to any acquisition)), measured on a quarter-end basis for each four consecutive fiscal quarters then ended, of not greater than 6.00 to 1.00.
The Credit Facility contains customary events of default subject to customary cure periods for certain defaults that include, among others, non-payment defaults, inaccuracy of representations and warranties, covenant defaults, cross-defaults to certain other material indebtedness, change in control, bankruptcy and insolvency defaults and material judgment defaults. The occurrence of an event of default could result in the acceleration of Term Loans and Revolver and a right by the agent and lenders to exercise remedies. At the election of the lenders, a default interest rate shall apply on all obligations during an event of default, at a rate per annum equal to 2.00% above the applicable interest rate. The Term Loan and Revolver are secured by substantially all of the Company's assets. As of December 31, 2021 the Company was in compliance with all covenants under the Credit Facility.
Cash interest costs averaged 5.4% for both the years ended December 31, 2021 and 2020, respectively. As of December 31, 2021, the Company had $9.5 million of unamortized debt issuance costs associated with the Credit Facility. These issuance costs will be amortized to Interest expense, net on our consolidated statement of operations, over the term of the Credit Facility. During the year ended December 31, 2019, the Company wrote off debt issuance costs of $2.3 million as a Loss on debt extinguishment on our consolidated statement of operations, as a result of the paydown of our previous credit facility. During the years ended December 31, 2021 and 2020, the Company had no write offs of debt issuance costs.
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Debt Maturities
Under the terms of the Credit Facility, future debt maturities of long-term debt excluding debt discounts at December 31, 2021 are as follows, (in thousands):
| Year ending December 31: | ||||||||
| 2022 | $ | 5,400 | ||||||
| 2023 | 5,400 | |||||||
| 2024 | 5,400 | |||||||
| 2025 | 5,400 | |||||||
| 2026 | 506,250 | |||||||
| Thereafter | — | |||||||
| $ | 527,850 | |||||||
| Less unamortized discount | 9,520 | |||||||
| Total debt outstanding, net of discount | $ | 518,330 | ||||||
8. Net Loss Per Share
The following table sets for the computations of loss per share:
| Year Ended December 31, | ||||||||||||||||||||
| (In thousands, except share and per share amounts) | 2021 | 2020 | 2019 | |||||||||||||||||
| Numerators: | ||||||||||||||||||||
Net loss | $ | (58,212) | $ | (51,219) | $ | (45,371) | ||||||||||||||
| Denominator: | ||||||||||||||||||||
| Weighted–average common shares outstanding, basic and diluted | 30,295,769 | 26,632,116 | 23,099,549 | |||||||||||||||||
Net loss per common share, basic and diluted | $ | (1.92) | $ | (1.92) | $ | (1.96) | ||||||||||||||
Due to the net losses incurred for the years ended December 31, 2021, 2020 and 2019, basic and diluted loss per share were the same, as the effect of all potentially dilutive securities would have been anti-dilutive. The following table sets forth the anti-dilutive common share equivalents excluded from the weighted-average shares used to calculate diluted net loss per common share:
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Stock options | 227,605 | 264,002 | 329,698 | ||||||||||||||
| Restricted stock awards | — | 34,508 | 371,217 | ||||||||||||||
| Restricted stock units | 1,379,747 | 1,261,290 | 790,807 | ||||||||||||||
| Performance restricted stock units | 63,537 | 66,297 | — | ||||||||||||||
| Total anti–dilutive common share equivalents | 1,670,889 | 1,626,097 | 1,491,722 | ||||||||||||||
9. Leases
Operating Leases
The Company leases office space under operating leases that expire between 2022 and 2027. The terms of the Company's non-cancelable operating lease arrangements typically contain fixed rent increases over the term of the lease, rent holidays and provide for additional renewal periods. Rent expense on these operating leases is recognized over the term of the lease on a straight-line basis.
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Finance Leases
The current and long-term portion of finance lease obligations are included in Accrued expenses and other current liabilities and Other long-term liabilities line items on the consolidated balance sheet, respectively. As of December 31, 2021, the Company no longer had any finance lease agreements. At December 31, 2020, the Company's finance lease agreements were generally for four years and contained a bargain purchase option at the end of the lease term.
Lease Expense
Total office rent expense for the years ended December 31, 2021, 2020 and 2019 were approximately $6.2 million, $5.9 million and $2.9 million, respectively. The $6.2 million office rent expense in 2021 includes approximately $4.4 million of transformation charges in conjunction with the closures of the Panviva, BlueVenn, Second Street and Localytics offices as we continue to consolidate and integrate these acquisitions. The $5.9 million office rent expense in 2020 includes approximately $3.6 million of transformation charges in conjunction with the closures of the Localytics, Kapost and Altify offices as we continue to consolidate and integrate these acquisitions.
The Company has entered into sublease agreements related to excess office space as a result of the Company's transformation activities related to its acquisitions. The Company’s current sublease agreements terminate in 2027. For the years ended December 31, 2021, 2020 and 2019, the Company recognized rental income on subleases, as offsets to rental expense, of $1.1 million , $0.8 million and $0.5 million, respectively. Operating lease obligations in the future minimum payments table below do not include the impact of future rental income of $2.9 million related to these subleases as of December 31, 2021.
The components of lease expense were as follows (in thousands):
| Year Ended December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Operating lease cost | $ | 7,279 | 6,681 | ||||||||
| Finance lease costs: | |||||||||||
Amortization of right-of-use assets | 29 | 139 | |||||||||
Interest on lease liabilities | — | 10 | |||||||||
| Sublease income | (1,068) | (798) | |||||||||
| Total lease expense | $ | 6,240 | 6,032 | ||||||||
Other information about lease amounts recognized on our consolidated financial statements is summarized as follows:
| Year Ended December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
Cash paid for amounts included in the measurement of lease liabilities (in thousands): | |||||||||||
Operating cash flows from operating leases | $ | 4,111 | $ | 4,160 | |||||||
Operating cash flows from finance leases | $ | — | $ | 10 | |||||||
Financing cash flows from finance leases | $ | 12 | $ | 88 | |||||||
Right-of-use assets obtained in exchange for lease obligations (in thousands): | |||||||||||
Operating leases | $ | 2,748 | $ | 8,915 | |||||||
| Weighted average remaining lease term (in years): | |||||||||||
Operating leases | 3.6 | 4.1 | |||||||||
Finance leases | 0.0 | 2.6 | |||||||||
| Weighted average discount rate | |||||||||||
Operating leases | 5.4 | % | 5.6 | % | |||||||
Finance leases | — | % | 5.1 | % | |||||||
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As of December 31, 2021, the Company no longer had any finance lease agreements. Future minimum payments for operating lease obligations and purchase commitments are as follows (in thousands):
| Operating Leases | ||||||||
| 2022 | $ | 4,060 | ||||||
| 2023 | 3,270 | |||||||
| 2024 | 2,219 | |||||||
| 2025 | 1,485 | |||||||
| 2026 | 945 | |||||||
| Thereafter | 44 | |||||||
| Total minimum lease payments | 12,023 | |||||||
| Less amount representing interest | (1,704) | |||||||
| Present value of lease liabilities | $ | 10,319 | ||||||
| Operating lease liabilities, current | 3,546 | |||||||
| Operating lease liabilities, noncurrent | 6,773 | |||||||
| Total lease liabilities | $ | 10,319 | ||||||
10. Commitments and Contingencies
Purchase Commitments
The Company has purchase commitments related to hosting services, third-party technology used in the Company's solutions and for other services the Company purchases as part of normal operations. In certain cases these arrangements require a minimum annual purchase commitment.
Future minimum payments for purchase commitments are as follows (in thousands):
| Year | Purchase Commitments | |||||||
| 2022 | $ | 22,771 | ||||||
| 2023 | 12,256 | |||||||
| 2024 | 11,379 | |||||||
| 2025 | 6,694 | |||||||
| 2026 | — | |||||||
| Thereafter | — | |||||||
| Total minimum payments | $ | 53,100 | ||||||
Litigation
In the normal course of business, the Company may become involved in various lawsuits and legal proceedings. As of December 31, 2021, the Company is not involved in any current or pending legal proceedings, and does not anticipate any legal proceedings, that may have a material adverse effect on its consolidated financial position or results of operations.
In addition, when we acquire companies, we require that the sellers provide industry standard indemnification for breaches of representations and warranties contained in the acquisition agreement and we will withhold payment of a portion of the purchase price for a period of time in order to satisfy any claims that we may make for indemnification. In certain transactions, we agree with the sellers to purchase a representation and warranty insurance policy that will pay such claims for indemnification. From time to time we may have one or more claims for indemnification pending. Similarly, we may have one or more ongoing negotiations related to the amount of an earnout. Gain contingencies related to indemnification claims are not recognized on our consolidated financial statements until realized.
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11. Property and Equipment, Net
Property and equipment consisted of the following (in thousands) at:
| December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Equipment | $ | 15,327 | $ | 13,515 | |||||||
| Furniture and fixtures | 668 | 645 | |||||||||
| Leasehold improvements | 1,766 | 1,751 | |||||||||
| Accumulated depreciation | (15,094) | (13,133) | |||||||||
| Property and equipment, net | $ | 2,667 | $ | 2,778 | |||||||
Amortization of assets recorded under financing leases is included with depreciation expense. Depreciation and amortization expense on Property and equipment, net was $2.0 million, $2.2 million and $2.2 million for the years ended December 31, 2021, 2020 and 2019, respectively. During 2020 we recognized a $0.6 million loss on disposal of assets related primarily to leasehold improvements associated with the consolidation and integration of prior year acquisitions.The Company recorded no impairment of property and equipment and recorded no losses on the disposal of property and equipment during the years ended December 31, 2021 and 2019.
12. Stockholders' Equity
Common and Preferred Stock
Our certificate of incorporation authorizes shares of stock as follows: 50,000,000 shares of common stock and 5,000,000 shares of preferred stock. The common and preferred stock has a par value of $0.0001 per share. No shares of preferred stock are issued or outstanding.
Each share of common stock is entitled to one vote at all meetings of stockholders. The number of authorized shares of common stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of shares of capital stock of the Company representing a majority of the votes represented by all outstanding shares of capital stock of the Company entitled to vote. The holders of common stock are also entitled to receive dividends, when, if and as declared by our board of directors, whenever funds are legally available therefore, subject to the priority rights of any outstanding preferred stock.
Registration Statement
On August 10, 2020, the Company filed a registration statement on Form S-3 (File No. 333-243728) (the “2020 S-3”), which became effective automatically upon its filing and covers an unlimited amount of securities. The 2020 S-3 will remain effective through August 2023. On August 14, 2020, we completed a registered underwritten public offering pursuant to the 2020 S-3 of 3,500,000 shares of the Company's $0.0001 par value common stock for an offering price to the public of $34.00 per share. In addition, on August 27, 2020 we closed the sale of an additional 525,000 shares issuable pursuant to a fully exercised option to purchase additional shares granted to the underwriters of the offering. The total net proceeds of the offering, including shares issued pursuant to the fully exercised option, of $130.1 million, net of issuance costs of $6.8 million, will be used for general business purposes, including the funding of future acquisitions. There are no open outstanding security offerings at this time.
Accumulated Other Comprehensive Income (Loss)
Comprehensive income (loss) consists of two elements, net income (loss) and other comprehensive income (loss). Other comprehensive income (loss) items are recorded in the stockholders’ equity section on our consolidated balance sheets and excluded from net income (loss). Other comprehensive income (loss) consists primarily of foreign currency translation adjustments for subsidiaries with functional currencies other than the USD, unrealized translation gains (losses) on intercompany loans with foreign subsidiaries, and unrealized gains (losses) on interest rate swaps.
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The following table shows the components of accumulated other comprehensive loss, net of income taxes, (“AOCI”) in the stockholders’ equity section on our consolidated balance sheets at the dates indicated (in thousands):
| December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Other comprehensive loss | |||||||||||
| Foreign currency translation adjustment | $ | (5,657) | $ | 644 | |||||||
| Unrealized translation gain on intercompany loans with foreign subsidiaries | 2,552 | 3,154 | |||||||||
| Unrealized loss on interest rate swaps | (8,409) | (30,032) | |||||||||
| Total accumulated other comprehensive loss | $ | (11,514) | $ | (26,234) | |||||||
The Unrealized translation gain on intercompany loans with foreign subsidiaries as of December 31, 2021 is net of unrealized income tax expense of $1.9 million. The income tax expense (benefit) allocated to each component of other comprehensive income (loss) for all other periods and components was not material.
The functional currency of our foreign subsidiaries are the local currencies. Results of operations for foreign subsidiaries are translated in USD using the average exchange rates on a monthly basis during the year. The assets and liabilities of those subsidiaries are translated into USD using the exchange rates in effect at the balance sheet date. The related translation adjustments are recorded in a separate component of stockholders' equity in accumulated other comprehensive loss.
The Company had foreign currency denominated intercompany loans that were used to fund the acquisitions of foreign subsidiaries. As of April 1, 2020 the Company amended the loan agreements to be denominated in USD. Due to the long-term nature of the loans, the unrealized translation gains (losses) resulting from re-measurement are recognized as a component of accumulated other comprehensive income (loss).
Stock Compensation Plans
The Company maintains two stock-based compensation plans, the 2010 Stock Option Plan (the “2010 Plan”) and the 2014 Stock Option Plan (the “2014 Plan”), which are described below.
2010 Plan
At December 31, 2021, there were 69,701 options outstanding under the 2010 Plan. Following the effectiveness of the Company’s 2014 Plan in November 2014, no further awards have been made under the 2010 Plan, although each option previously granted under the 2010 Plan will remain outstanding subject to its terms. Any such shares of common stock that are subject to awards under the 2010 Plan which are forfeited or lapse unexercised and would otherwise have been returned to the share reserve under the 2010 Plan instead will be available for issuance under the 2014 Plan.
2014 Plan
In November 2014, the Company adopted the 2014 Plan, providing for the granting of incentive stock options, as defined by the Internal Revenue Code, to employees and for the grant of non-statutory stock options, stock appreciation rights, restricted stock, restricted stock units, performance units and performance shares to employees, directors and consultants. The 2014 Plan also provides for the automatic grant of option awards to our non-employee directors. As of December 31, 2021, there were 157,904 options outstanding under the 2014 Plan, and shares of common stock reserved for issuance under the 2014 Plan consist of 599,639 shares. In addition, the number of shares available for issuance under the 2014 Plan will be increased annually in an amount equal to the least of (i) 4% of the outstanding Shares on the last day of the immediately preceding Fiscal Year or (ii) such number of Shares determined by the Board. At December 31, 2021, there were 1,379,747 restricted stock units and 63,537 performance based restricted stock units outstanding under the 2014 Plan.
Under both the 2010 Plan and 2014 Plan, options granted to date generally vest over a or four year period, with a maximum term of ten years. The Company also grants restricted stock awards (“RSAs”) which generally vest annually over a or four year period. Shares issued upon any stock option exercise and restricted under the 2010 Plan or 2014 Plan will be issued from the Company's authorized but unissued shares.
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Share-based Compensation
The Company recognized share-based compensation expense from all awards in the following expense categories (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Cost of revenue | $ | 2,088 | $ | 1,951 | $ | 1,000 | |||||||||||
| Research and development | 3,085 | 3,391 | 2,310 | ||||||||||||||
| Sales and marketing | 5,957 | 3,450 | 1,543 | ||||||||||||||
General and administrative (1) | 42,743 | 32,900 | 20,901 | ||||||||||||||
| Total | $ | 53,873 | $ | 41,692 | $ | 25,754 | |||||||||||
(1)In March 2021 our former co-President and Chief Operating Officer (“COO”) resigned from his positions and entered into an advisory agreement with the Company pursuant to which he will serve as a strategic advisor to the Company through December 31, 2022. Stock-based compensation for the twelve months ended December 31, 2021 includes $6.3 million related to the acceleration and deemed modification of the unvested portion of grants held by our former COO at the time of transition, even though these shares continue to vest over their existing vesting schedule through 2022. In accordance with ASC 718, Compensation—Stock Compensation, the fair value of these awards were modified and all related expense accelerated on the date of modification as a result of the reduction in required service.
Our income tax benefits recognized from stock-based compensation arrangements in each of the periods presented were immaterial due to cumulative losses and valuation allowances.
Restricted Stock Units
During the year ended December 31, 2021 the Company granted restricted stock units under its 2014 Stock Incentive Plan, in lieu of restricted stock awards, primarily for stock plan administrative purposes. Restricted stock unit activity during the year ended December 31, 2021 is as follows:
| Number of Restricted Stock Units Outstanding | Weighted-Average Grant Date Fair Value | ||||||||||
| Unvested balances at December 31, 2020 | 1,261,290 | $ | 39.92 | ||||||||
| Units granted | 1,249,066 | 47.33 | |||||||||
| Units vested | (981,812) | 42.09 | |||||||||
| Awards forfeited | (148,797) | 43.60 | |||||||||
| Unvested balances at December 31, 2021 | 1,379,747 | $ | 44.69 | ||||||||
The total fair value of restricted stock units vested during the years ended December 31, 2021, 2020 and 2019 was approximately $28.2 million, $31.0 million and $10.6 million , respectively. As of December 31, 2021, $55.2 million of unrecognized compensation cost related to unvested restricted stock awards and restricted stock units (including performance based awards) is expected to be recognized over a weighted-average period of 1.7 years.
Performance Based Restricted Stock Units
In 2020 and 2021, 50% of the awards made to our Chief Executive Officer were performance based restricted stock units ("PRSUs"). The PRSU agreements provide that the quantity of units subject to vesting may range from 0% to 300% of the units granted per the table below based on the Company's absolute total shareholder return at the end of the eighteen month performance period for each award. Units granted per the table below are based on a 100% target payout. Compensation expense is recognized over the required service period of the grant and is determined based on the grant date fair value of the award and is not subject to fluctuation due to achievement of the underlying market-based target.
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PRSU activity during the year ended December 31, 2021 is as follows:
| Number of PRSUs Outstanding | Weighted-Average Grant Date Fair Value | ||||||||||
| Unvested balances at December 31, 2020 | 66,297 | $ | 79.72 | ||||||||
| Units granted | 63,537 | 84.87 | |||||||||
Incremental PRSUs (1) | 69,048 | ||||||||||
| Units vested | (135,345) | 79.72 | |||||||||
| Unvested balances at December 31, 2021 | 63,537 | $ | 84.87 | ||||||||
(1)Represents incremental PRSUs earned and vested during the period based on absolute shareholder return achievement over 100% of target during the performance period.
The total fair value of PRSUs vested during the years ended December 31, 2021, 2020 and 2019 was $5.6 million, $0.0 million and $0.0 million, respectively.
Restricted Stock Awards
Restricted stock activity during the year ended December 31, 2021 is as follows:
| Number of Restricted Shares Outstanding | Weighted-Average Grant Date Fair Value | |||||||||||||
| Unvested balances at December 31, 2020 | 34,508 | $ | 30.13 | |||||||||||
| Awards granted | — | $ | — | |||||||||||
| Awards vested | (34,508) | $ | 30.13 | |||||||||||
| Awards forfeited | — | $ | — | |||||||||||
| Unvested balances at December 31, 2021 | — | $ | — | |||||||||||
The total fair value of restricted stock awards vested during the years ended December 31, 2021, 2020 and 2019 was approximately $1.4 million, $11.7 million and $24.7 million, respectively.
Stock Option Activity
Stock option activity during the year ended December 31, 2021 is as follows:
| Number of Options Outstanding | Weighted– Average Exercise Price | Weighted– Average Remaining Contractual Term (in Years) | Aggregate Intrinsic Value (in thousands) | ||||||||||||||||||||
| Outstanding at December 31, 2020 | 264,002 | $ | 8.93 | ||||||||||||||||||||
| Options granted | — | — | |||||||||||||||||||||
| Options exercised | 35,983 | 7.62 | |||||||||||||||||||||
| Options forfeited | — | — | |||||||||||||||||||||
| Options expired | 414 | 1.56 | |||||||||||||||||||||
| Outstanding at December 31, 2021 | 227,605 | $ | 9.15 | 3.4 | $ | 2,185 | |||||||||||||||||
| Options vested and expected to vest at December 31, 2021 | 227,605 | $ | 9.15 | 3.4 | $ | 2,185 | |||||||||||||||||
| Options vested and exercisable at December 31, 2021 | 227,605 | $ | 9.15 | 3.4 | $ | 2,185 | |||||||||||||||||
The aggregate intrinsic value of options exercised at December 31, 2021, 2020 and 2019, was approximately $1.1 million, $2.3 million and $2.8 million , respectively. The total fair value of options vested during the years ended December 31, 2021, 2020 and 2019 was approximately $0.0 million, $0.0 million and $0.0 million , respectively.
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As of December 31, 2021, there was no remaining unrecognized compensation cost related to stock options .
The Company received approximately $0.3 million in cash from option exercises under the respective Plans in 2021. The Company issued shares from amounts reserved under the respective Plans upon the exercise of these stock options. The Company does not currently expect to repurchase shares from any source to satisfy such obligation under any of the Company’s stock option Plans.
13. Revenue Recognition
Revenue Recognition Policy
Revenues are recognized when control of the promised goods or services is transferred to the Company's customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services over the term of the agreement, generally when made available to the customers. We enter into contracts that can include various combinations of products and services, which are generally capable of being distinct and accounted for as separate performance obligations. Revenues are recognized net of sales credits and allowances. Revenue is recognized net of any taxes collected from customers, which are subsequently remitted to governmental authorities.
Revenue is recognized based on the following five step model in accordance with ASC 606, Revenue from Contracts with Customers:
•Identification of the contract with a customer
•Identification of the performance obligations in the contract
•Determination of the transaction price
•Allocation of the transaction price to the performance obligations in the contract
•Recognition of revenue when, or as, the Company satisfies a performance obligation
Performance obligations under our contracts consist of subscription and support, perpetual licenses, and professional services revenue within a single operating segment.
Subscription and Support Revenue
The Company's software solutions are available for use as hosted application arrangements under subscription fee agreements without licensing perpetual rights to the software. Subscription fees from these applications are recognized over time on a ratable basis over the customer agreement term beginning on the date the Company's solution is made available to the customer. As our customers have access to use our solutions over the term of the contract agreement we believe this method of revenue recognition provides a faithful depiction of the transfer of services provided. Our subscription contracts are generally 1 to 3 years in length. Amounts that have been invoiced are recorded in accounts receivable and deferred revenue or subscription and support revenue, depending on whether the revenue recognition criteria have been met. Additional fees for monthly usage above the levels included in the standard subscription fee are recognized as subscription and support revenue at the end of each month and is invoiced concurrently. Subscription and support revenue includes revenue related to the Company’s digital engagement application which provides short code connectivity for its two-way short message service (“SMS”) programs and campaigns. As discussed further in the “—Principal vs. Agent Considerations” section below, the Company recognizes revenue related to these messaging-related subscription contracts on a gross basis.
Perpetual License Revenue
The Company also records revenue from the sales of proprietary software products under perpetual licenses. Revenue from distinct on-premises licenses is recognized upfront at the point in time when the software is made available to the customer. The Company’s products do not require significant customization.
Professional Services Revenue
Professional services provided with subscription and support licenses and perpetual licenses consist of implementation fees, data extraction, configuration, and training. The Company’s implementation and configuration services do not involve significant customization of the software and are not considered essential to the functionality. Revenue from professional services are recognized over time as such services are performed. Revenue for fixed price services are generally recognized over time applying input methods to estimate progress to completion. Revenue for consumption-based services are generally recognized as the services are performed.
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Significant Judgments
Performance Obligations and Standalone Selling Price
A performance obligation is a promise in a contract to transfer a distinct good or service to the customer and is the unit of accounting. Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment. The Company has contracts with customers that often include multiple performance obligations, usually including professional services sold with either individual or multiple subscriptions or perpetual licenses. For these contracts, the Company records individual performance obligations separately if they are distinct by allocating the contract's total transaction price to each performance obligation in an amount based on the relative standalone selling price (“SSP”) of each distinct good or service in the contract. We only include estimated amounts of variable consideration in the transaction price to the extent it is probable that a significant reversal of cumulative revenue recognized will not occur when the uncertainty associated with the variable consideration is resolved.
Judgment is required to determine the SSP for each distinct performance obligation. A residual approach is only applied in limited circumstances when a particular performance obligation has highly variable and uncertain SSP and is bundled with other performance obligations that have observable SSP. A contract's transaction price is allocated to each distinct performance obligation and recognized as revenue when, or as, the performance obligation is satisfied. We determine the SSP based on our overall pricing objectives, taking into consideration market conditions and other factors, including the value of our contracts, historical standalone sales, customer demographics, geographic locations, and the number and types of users within our contracts.
Principal vs. Agent Considerations
The Company evaluates whether it is the principal (i.e., report revenues on a gross basis) or agent (i.e., report revenues on a net basis) for vendor reseller agreements and messaging-related subscription agreements. Where the Company is the principal, it first obtains control of the inputs to the specific good or service and directs their use to create the combined output. The Company's control is evidenced by its involvement in the integration of the good or service on its platform before it is transferred to its customers, and is further supported by the Company being primarily responsible to its customers and having a level of discretion in establishing pricing. While none of the factors individually are considered presumptive or determinative, in reaching conclusions on gross versus net revenue recognition, the Company places the most weight on the analysis of whether or not it is the primary obligor in the arrangement.
Generally, the Company reports revenue from vendor reseller agreements on a gross basis, meaning the amounts billed to customers are recorded as revenue, and expenses incurred are recorded as cost of revenue. As the Company is primarily obligated in its messaging-related subscription contracts, has latitude in establishing prices associated with its messaging program management services, is responsible for fulfillment of the transaction, and has credit risk, we have concluded it is appropriate to record revenue on a gross basis with related pass-through telecom messaging costs incurred from third parties recorded as cost of revenue. Revenue provided from agreements in which the Company is an agent are immaterial.
Contract Balances
The timing of revenue recognition, billings and cash collections can result in billed accounts receivable, unbilled receivables, and deferred revenue. Billings scheduled to occur after the performance obligation has been satisfied and revenue recognition has occurred result in unbilled receivables, which are expected to be billed during the succeeding twelve-month period and are recorded in Unbilled receivables in our consolidated balance sheets. A contract liability results when we receive prepayments or deposits from customers in advance for implementation, maintenance and other services, as well as subscription fees. Customer prepayments are generally applied against invoices issued to customers when services are performed and billed. We recognize contract liabilities as revenue upon satisfaction of the underlying performance obligations. Contract liabilities that are expected to be recognized as revenue during the succeeding twelve-month period are recorded in Deferred revenue and the remaining portion is recorded in Deferred revenue, noncurrent on the accompanying consolidated balance sheets at the end of each reporting period.
Deferred revenue primarily consist of amounts that have been billed to or received from customers in advance of revenue recognition and prepayments received from customers in advance for maintenance and other services, as well as initial subscription fees. We recognize deferred revenue as revenue when the services are performed, and the corresponding revenue recognition criteria are met. Customer prepayments are generally applied against invoices issued to customers when services are performed and billed. Our payment terms vary by the type and location of our customer and the products or services offered. The term between invoicing and when payment is due is not significant. For certain products or services and customer types, we require payment before the products or services are delivered to the customer.
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Unbilled Receivables
Unbilled receivables represent amounts for which the Company has recognized revenue, pursuant to its revenue recognition policy, for software licenses already delivered and professional services already performed, but invoiced in arrears and for which the Company believes it has an unconditional right to payment. As of December 31, 2021 and 2020 unbilled receivables were $4.8 million and $4.6 million, respectively.
Deferred Commissions
Sales commissions earned by our sales force, and related payroll taxes, are considered incremental and recoverable costs of obtaining a contract with a customer. Deferred commissions and other costs for new customer contracts are capitalized upon contract signing and amortized on a systematic basis that is consistent with the transfer of goods and services over the expected life of the customer relationships, which has been determined to be approximately 6 years. The expected life of our customer relationships is based on historical data and management estimates, including estimated renewal terms and the useful life of the associated underlying technology. Commissions paid on renewal contracts are not commensurate with commissions paid on new customer contracts, as such, deferred commissions related to renewals are capitalized and amortized over the estimated contractual renewal term of 18 months. We utilized the 'portfolio approach' practical expedient, which allows entities to apply the guidance to a portfolio of contracts with similar characteristics as the effects on the financial statements of this approach would not differ materially from applying the guidance to individual contracts. The portion of capitalized costs expected to be amortized during the succeeding twelve-month period is recorded as Deferred commissions, current, and the remainder is recorded as Deferred commissions, noncurrent, in our consolidated balance sheets. Amortization expense is included in sales and marketing expenses on our consolidated statements of operations. Deferred commissions are reviewed for impairment whenever events or circumstances indicate their carrying value may not be recoverable consistent with the Company's long-lived assets policy as described in “Note 2. Summary of Significant Accounting Policies”. No indicators of impairment were identified during the year ended December 31, 2021.
The following table presents the activity impacting deferred commissions for the year ended December 31, 2021 (in thousands):
| Deferred Commissions | ||||||||
| Deferred commissions balance at December 31, 2020 | $ | 18,746 | ||||||
| Capitalized deferred commissions | 14,581 | |||||||
| Amortization of deferred commissions | (8,695) | |||||||
| Deferred commissions balance at December 31, 2021 | $ | 24,632 | ||||||
Commissions capitalized in excess of amortization of deferred commissions for the year ended December 31, 2021 were $5.9 million.
Deferred Revenue
Deferred revenue represents either customer advance payments or billings for which the aforementioned revenue recognition criteria have not yet been met.
Deferred revenue is mainly unearned revenue related to subscription services and support services. During the year ended December 31, 2021, we recognized $83.1 million and $2.2 million of subscription services and professional services revenue, respectively, that was included in the deferred revenue balances at the beginning of the period. In addition, during the year ended December 31, 2021 we recognized $7.8 million in revenue that was included in the acquired deferred revenue balance of our 2021 acquisitions as disclosed in “Note 3. Acquisitions”.
Remaining Performance Obligations
As of December 31, 2021, approximately $295.4 million of revenue is expected to be recognized from remaining performance obligations. We expect to recognize revenue on approximately 67% of these remaining performance obligations over the next 12 months, with the balance recognized thereafter.
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Disaggregated Revenue
The Company disaggregates revenue from contracts with customers by geography and revenue generating activity, as it believes it best depicts how the nature, amount, timing and uncertainty of revenue and cash flows are affected by economic factors.
Revenue by geography is based on the ship-to address of the customer, which is intended to approximate where the customers' users are located. The ship-to country is generally the same as the billing country. The Company has operations primarily in the U.S., United Kingdom and Canada. Information about these operations is presented below (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2021 | 2020 | 2019 | |||||||||||||||
| Revenues: | |||||||||||||||||
| Subscription and support: | |||||||||||||||||
| United States | $ | 205,882 | $ | 206,320 | $ | 140,882 | |||||||||||
| United Kingdom | 45,673 | 39,032 | 38,879 | ||||||||||||||
| Canada | 13,870 | 14,830 | 10,504 | ||||||||||||||
| Other International | 22,196 | 17,322 | 13,601 | ||||||||||||||
| Total subscription and support revenue | 287,621 | 277,504 | 203,866 | ||||||||||||||
| Perpetual license: | |||||||||||||||||
| United States | 1,840 | 1,396 | 5,395 | ||||||||||||||
| United Kingdom | 11 | 16 | 42 | ||||||||||||||
| Canada | 109 | 76 | 111 | ||||||||||||||
| Other International | 190 | 396 | 190 | ||||||||||||||
| Total perpetual license revenue | 2,150 | 1,884 | 5,738 | ||||||||||||||
| Professional services: | |||||||||||||||||
| United States | 8,104 | 8,721 | 9,250 | ||||||||||||||
| United Kingdom | 2,666 | 2,059 | 2,367 | ||||||||||||||
| Canada | 410 | 504 | 536 | ||||||||||||||
| Other International | 1,065 | 1,106 | 880 | ||||||||||||||
| Total professional service revenue | 12,245 | 12,390 | 13,033 | ||||||||||||||
| Total revenue | $ | 302,016 | $ | 291,778 | $ | 222,637 | |||||||||||
14. Employee Benefit Plans
The Company has established various international defined contribution plans and one voluntary defined contribution retirement plan qualifying under Section 401(k) of the Internal Revenue Code. The Company made no contributions to the 401(k) plans for the years ended December 31, 2021, 2020 and 2019.
15. Segment and Geographic Information
ASC 280, Segment Reporting, establishes standards for reporting information about operating segments. It defines operating segments as components of an enterprise about which separate financial information is available that is evaluated regularly by the chief operating decision-maker (“CODM”) in deciding how to allocate resources and in assessing performance. Our Chief Executive Officer is considered to be our CODM. Our CODM manages the business as a multi-product business that utilizes its model to deliver software products to customers regardless of their geography or IT environment. Operating results are reviewed by the CODM primarily at the consolidated entity level, with the exception of recurring product level revenue, for purposes of making resource allocation decisions and for evaluating financial performance. Accordingly, we considered ourselves to be in a single operating and reporting segment structure.
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Revenue
See “Note 13 Revenue Recognition—Disaggregated Revenue” for a detail of revenue by geography.
Identifiable Long-Lived Assets
| December 31, | |||||||||||
| 2021 | 2020 | ||||||||||
| Identifiable long-lived assets: | |||||||||||
| United States | $ | 1,367 | $ | 1,454 | |||||||
| United Kingdom | 533 | 429 | |||||||||
| Canada | 536 | 606 | |||||||||
| Other International | 231 | 289 | |||||||||
| Total identifiable long-lived assets | $ | 2,667 | $ | 2,778 | |||||||
16. Related Party Transactions
We are a party to two agreements, as detailed below, with companies controlled by ESW Capital LLC (“ESW”), a non-management investor in the Company which historically held more than 5% of the Company's capital stock. As of July 9, 2021, ESW’s ownership in Upland was reduced to 4.8% at which point DevFactory and Crossover (as hereinafter defined) were no longer considered related parties.
•On March 28, 2017, the Company and DevFactory FZ-LLC (“DevFactory”) executed an amendment to the agreement to extend the initial term to December 31, 2021. Additionally, the Company amended the option for either party to renew annually for additional year. The effective date of the amendment was January 1, 2017. The Company has an outstanding purchase commitment in 2022 for software development services pursuant to a technology services agreement in the amount of $10.0 million. For years after 2022, the purchase commitment amount for software development services will be equal to the prior year purchase commitment increased (decreased) by the percentage change in total revenue for the prior year as compared to the preceding year. During the years ended December 31, 2021, 2020 and 2019, the Company purchased software development services pursuant to a technology services agreement with DevFactory, in the amount of $9.6 million, $7.4 million, and $4.9 million, respectively. At December 31, 2021 and December 31, 2020, amounts included in accounts payable owed to this company totaled $0.0 million and $0.0 million, respectively.
•The Company purchased services from Crossover, Inc. (“Crossover”), a company controlled by ESW Capital, LLC (a non-management investor) of approximately $4.0 million, $4.8 million, and $3.5 million during the years ended December 31, 2021, 2020 and 2019, respectively. Crossover provides a proprietary technology system to help the Company identify, screen, select, assign, and connect with necessary resources from time to time to perform technology software development and other services throughout the Company, and track productivity of such resources. While there are no purchase commitments with Crossover, the Company will continue to use their services in 2022. As of December 31, 2021 and December 31, 2020 amounts included in accounts payable and accrued liabilities owed to this company totaled $0.9 million and $0.6 million, respectively.
The Company previously had an arrangement with a former subsidiary, Visionael Corporation ("Visionael"), to provide management, human resource, payroll and administrative services. John T. McDonald, the Company's Chief Executive Officer and Chairman of the Board, beneficially holds approximately 26.18% interest in Visionael. In connection with its arrangement with Visionael, the Company has provided advances to Visionael to help cover short term working capital needs. Visionael ceased operations effective July 31, 2021 and the Company did not receive any fees or pay advances to Visionael during the year ended December 31, 2021. Fees earned from this arrangement during the year ended December 31, 2020 and 2019 were $45,000, and $60,000, respectively. As of December 31, 2021 and December 31, 2020 advances to Visionael included in Prepaid and other on the Company’s consolidated balance sheets totaled $0.0 million and $0.4 million, respectively, net of allowance for credit losses. During the years ended December 31, 2021 and 2020, the Company recognized allowance for credit losses of $0.4 million and $0.3 million, respectively, against the remaining outstanding balance.
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17. Subsequent Events
On January 7, 2022, the Company entered into an agreement to purchase Objectif Lune Inc., a corporation organized under the laws of Quebec (“Objectif Lune”), certain affiliated companies (the “Affiliates”) and certain holding companies associated with the Sellers (the “HoldCos” and together with Objectif Lune and the Affiliates, the “Companies”) pursuant to a Share Purchase Agreement dated January 7, 2022, by and among Upland, 9457-5032 Quebec Inc., a corporation existing under the laws of Quebec and a wholly-owned subsidiary of Upland, the Companies, those persons listed in the share purchase agreement as Sellers, and 9070-7282 Québec Inc. In connection with this acquisition, Upland also acquired certain assets from a United States based reseller of Objectif Lune’s products. Objectif Lune will be integrated into and expand on the functionality offered in Upland’s document workflow product suite. The aggregate consideration paid for the Companies and the US reseller assets was $29.0 million in cash at closing (net of cash acquired), paid out of cash on hand, and a $5.3 million cash holdback payable in 12 months (subject to indemnification claims).
On February 23, 2022, the Company entered into an agreement to purchase BA-Insight, Inc., a Delaware corporation (“BA”), pursuant to an Agreement and Plan of Merger dated February 23, 2022 (“Merger Agreement”), by and among Upland, Brontes Acquisition Corporation (“Merger Sub”) and Fortis Advisors LLC, in its capacity as a representative of the Stockholders. Pursuant to the Merger Agreement and the Delaware General Corporation Law, Merger Sub merged with and into BA with BA continuing as the surviving company of the Merger and wholly owned subsidiary of the Company. The purchase price paid for Brontes was $33.4 million in cash at closing (net of cash acquired), paid out of cash on hand, and a $0.6 million cash holdback payable payable in 15 months (subject to indemnification claims).
The Company recorded the purchase of the acquisitions described above using the acquisition method of accounting and, accordingly, recognized the assets acquired and liabilities assumed at their fair values as of the date of the acquisition. The purchase price allocation for the 2022 acquisitions is preliminary as the Company has not obtained and evaluated all of the detailed information necessary to finalize the opening balance sheet amounts in all respects. Management expects to finalize its purchase price allocation for these acquisition in the last half of 2022.
In accordance with ASC 855, Subsequent Events, which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued, the Company has evaluated all events and transactions that occurred after December 31, 2021 through the date the consolidated financial statements were available for issuance. During this period the Company did not have any material reportable subsequent events other than the acquisitions disclosed above.
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Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Pursuant to Rule 13a-15(b) of the Exchange Act, our management, including our Chief Executive Officer and our Chief Financial Officer (our principal executive officer and principal financial officer, respectively), has evaluated our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act as of December 31, 2021.
Our management does not expect that our disclosure controls and procedures will prevent or detect all errors and all fraud. Disclosure controls and procedures, no matter how well designed, operated and managed, can provide only reasonable assurance that the objectives of the disclosure controls and procedures are met. Because of the inherent limitations of disclosure controls and procedures, no evaluation of such disclosure controls and procedures can provide absolute assurance that all control issues and instances of fraud, if any, have been detected.
Management Report on Internal Control Over Financial Reporting
Our management, including our Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) of the Exchange Act. The Company’s internal control system is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America. Due to its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2021, using the criteria set forth in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) . Based on that assessment, our management concluded that our internal control over financial reporting was effective as of December 31, 2021 based on those criteria.
The independent registered public accounting firm of Ernst & Young LLP, as auditors of the Company’s consolidated financial statements, has issued an attestation report on the effectiveness of the Company’s internal control over financial reporting, included herein.
Changes in Internal Control over Financial Reporting
There were no changes to our internal control over financial reporting (as defined in Rules 13a- 15(f) and 15d- 15(f) of the Exchange Act) during the year ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None
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Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Upland Software, Inc.
Opinion on Internal Control Over Financial Reporting
We have audited Upland Software, Inc.’s internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), (the COSO criteria). In our opinion, Upland Software, Inc. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of Upland Software, Inc. (the Company) as of December 31, 2021 and 2020, the related consolidated statements of operations, comprehensive loss, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2021, and the related notes and our report dated February 24, 2022, expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management's Annual Report on Internal Controls over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young LLP
Austin, Texas
February 24, 2022
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PART III
Item 10. Directors, Officers and Corporate Governance
We have adopted a code of ethics that applies to the Company’s directors, officers and employees, including the Chief Executive Officer and the Chief Financial Officer and any other persons performing similar functions. The text of our code of ethics, “Code of Business Conduct and Ethics,” has been posted on our website at http://investor.uplandsoftware.com/code-of-conduct. We will provide a copy of the code of ethics without charge upon request to Corporate Secretary, Upland Software, Inc., 401 Congress Ave., Suite 1850, Austin, Texas 78701.
Additional information required by this item is incorporated by reference from our definitive proxy statement for the 2021 Annual Meeting of Stockholders, to be held in 2022, under the headings “Proposal One: Election of Directors,” “Section 16(a) Beneficial Ownership Reporting Compliance,” “Directors and Corporate Governance” and “Executive Officers.”
Item 11. Executive Compensation
The information required by this item is incorporated by reference from our definitive proxy statement for the 2021 Annual Meeting of Stockholders, under the headings “Executive Compensation” and “Directors and Corporate Governance-Compensation Committee Interlocks and Insider Participation.”
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item is incorporated by reference from our definitive proxy statement for the 2021 Annual Meeting of Stockholders under the headings “Equity Compensation Plan Information” and “Security Ownership of Certain Beneficial Owners and Management.”
Item 13. Certain Relationships, and Related Transactions, and Director Independence
The information required by this item is incorporated by reference from our definitive proxy statement for the 2021 Annual Meeting of Stockholders under the headings “Certain Relationships and Related Party Transactions” and “Directors and Corporate Governance-Director Independence.”
Item 14. Principal Accounting Fees and Services
The information required by this item is incorporated by reference from our definitive proxy statement for the 2021 Annual Meeting of Stockholders under the heading “Proposal Two: Ratification of Selection of Independent Registered Public Accounting Firm.”
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) Financial Statements
The financial statements filed as part of this Annual Report on Form 10-K are listed on the “Index to Consolidated Financial Statements” included in “Item 8. Financial Statements and Supplementary Data” herein.
(b) Exhibits
See Exhibit Index at the end of this Annual Report on Form 10-K, which is incorporated by reference.
Item 16. Form 10-K Summary
Not applicable.
Schedule II-Valuation and Qualifying Accounts
This schedule has been omitted as the required information has been included in the notes to the consolidated financial statements.
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EXHIBIT INDEX
| Incorporated by Reference | |||||||||||||||||
| Exhibit No. | Description of Exhibit | Form | File No. | Exhibit | Filing Date | ||||||||||||
| 10-K | 001-36720 | 3.1 | March 30, 2016 | ||||||||||||||
| 8-K | 001-36720 | 3.1 | February 4, 2020 | ||||||||||||||
| S-1 | 333-198574 | 10.2 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.3.1 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.4 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.4.1 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.4.2 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.4.3 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.5 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.5.1 | September 4, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.6 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.7 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.7.1 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.8 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.8.1 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.9 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.9.1 | October 27, 2014 | ||||||||||||||
| S-1 | 333-198574 | 10.12 | September 4, 2014 | ||||||||||||||
| 10-K | 001-36720 | 10.11.2 | March 15, 2019 | ||||||||||||||
| 10-K | 001-36720 | 10.21 | March 30, 2017 | ||||||||||||||
| 10-K | 001-36720 | 10.22 | March 30, 2017 | ||||||||||||||
| 10-K | 001-36720 | 10.23 | March 30, 2017 | ||||||||||||||
| 10-K | 001-36720 | 10.23 | March 15, 2019 | ||||||||||||||
| 10-K | 001-36720 | 10.24 | March 15, 2019 | ||||||||||||||
| 10-K | 001-36720 | 10.25 | March 15, 2019 | ||||||||||||||
| 8-K | 001-36720 | 10.1 | August 7, 2019 | ||||||||||||||
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| Incorporated by Reference | |||||||||||||||||
| 8-K | 001-36720 | 10.1 | November 26, 2019 | ||||||||||||||
| 10-K | 001-36720 | 10.28 | February 25, 2021 | ||||||||||||||
| 10-K | 001-36720 | 10.29 | February 25, 2021 | ||||||||||||||
| 10-K | 001-36720 | 10.30 | February 25, 2021 | ||||||||||||||
| 10-K | 001-36720 | 10.31 | February 25, 2021 | ||||||||||||||
| 10-K | 001-36720 | 10.32 | February 25, 2021 | ||||||||||||||
| 101* | Inline XBRL Document Set for the consolidated financial statements and accompanying notes in Part II, Item 8, “Financial Statements and Supplementary Data” of this Annual Report on Form 10-K. | ||||||||||||||||
| 104* | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | ||||||||||||||||
+ Indicates management contract, compensatory plan or arrangement.
* Filed herewith.
(1) The material contained in Exhibit 32.1 and Exhibit 32.2 is not deemed “filed” with the SEC and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933 or the Securities Exchange Act of 1934, whether made before or after the date hereof and irrespective of any general incorporation language contained in such filing, except to the extent that the Company specifically incorporates it by reference.
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SIGNATURES
Pursuant to the requirement of Sections 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: February 24, 2022
| Upland Software, Inc. | ||||||||
| By: | /s/ John T. McDonald | |||||||
| John T. McDonald | ||||||||
| Chief Executive Officer and Chairman | ||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John T. McDonald and Michael D. Hill and each of them, as his true and lawful attorney-in-fact and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:
| Signature | Title | Date | ||||||||||||
/s/ John T. McDonald | Chief Executive Officer and Chairman | February 24, 2022 | ||||||||||||
John T. McDonald | (Principal Executive Officer) | |||||||||||||
/s/ Michael D. Hill | Chief Financial Officer and Treasurer | February 24, 2022 | ||||||||||||
Michael D. Hill | (Principal Financial Officer and Principal Accounting Officer) | |||||||||||||
/s/ Joe C. Ross | Director | February 24, 2022 | ||||||||||||
Joe C. Ross | ||||||||||||||
/s/ David May | Director | February 24, 2022 | ||||||||||||
David May | ||||||||||||||
/s/ Stephen E. Courter | Director | February 24, 2022 | ||||||||||||
Stephen E. Courter | ||||||||||||||
/s/ Teresa M. Walsh | Director | February 24, 2022 | ||||||||||||
Teresa M. Walsh | ||||||||||||||
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