Bazaarvoice, Inc.
Bazaarvoice Inc (Form: 10-Q, Received: 03/06/2015 15:52:10)
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-Q

 

 

 

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

For the quarterly period ended January 31, 2015

OR

 

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

For the transition period from                      to                     

Commission file number 001-35433

 

 

BAZAARVOICE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

State of Delaware   20-2908277

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

3900 N. Capital of Texas Highway, Suite 300

Austin, Texas

  78746-3211
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (512) 551-6000

Not Applicable

(Former name, former address, and former fiscal year, if changed since last report)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

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

 

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

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

The number of shares of the registrant’s common stock outstanding as of March 2, 2015 was 79,486,146.

 

 

 


Table of Contents

Bazaarvoice, Inc.

Table of Contents

 

         Page  

Part I.

 

Financial Information

  

Item 1.

 

Condensed Consolidated Financial Statements:

  
 

Unaudited Condensed Consolidated Balance Sheets as of January 31, 2015 and April 30, 2014

     1   
 

Unaudited Condensed Consolidated Statements of Operations for the three and nine months ended January  31, 2015 and 2014

     2   
 

Unaudited Condensed Consolidated Statements of Comprehensive Loss for the three and nine months ended January 31, 2015 and 2014

     3   
 

Unaudited Condensed Consolidated Statement of Changes in Stockholders’ Equity for the nine months ended January 31, 2015

     4   
 

Unaudited Condensed Consolidated Statements of Cash Flows for the nine months ended January  31, 2015 and 2014

     5   
 

Notes to Unaudited Condensed Consolidated Financial Statements

     6   

Item 2.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     19   

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

     35   

Item 4.

 

Controls and Procedures

     35   

Part II.

 

Other Information

     37   

Item 1.

 

Legal Proceedings

     37   

Item 1A.

 

Risk Factors

     37   

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

     55   

Item 6.

 

Exhibits

     56   

Signatures

       57   


Table of Contents

Bazaarvoice, Inc.

Condensed Consolidated Balance Sheets

(in thousands, except shares and per share data)

(unaudited)

 

     January 31,
2015
    April 30,
2014
 

Assets

    

Current assets:

    

Cash and cash equivalents

   $ 45,787      $ 31,934   

Restricted cash

     —          604   

Short-term investments

     59,008        40,700   

Accounts receivable, net of allowance for doubtful accounts of $3,418 and $2,324 as of January 31, 2015 and April 30, 2014, respectively

     55,730        39,099   

Prepaid expenses and other current assets

     14,448        8,212   

Assets held for sale

     —          33,745   
  

 

 

   

 

 

 

Total current assets

  174,973      154,294   

Property, equipment and capitalized internal-use software development costs, net

  18,246      17,005   

Goodwill

  139,155      139,155   

Acquired intangible assets, net

  11,970      13,388   

Other non-current assets

  3,884      3,428   
  

 

 

   

 

 

 

Total assets

$ 348,228    $ 327,270   
  

 

 

   

 

 

 

Liabilities and stockholders’ equity

Current liabilities:

Accounts payable

$ 4,393    $ 3,346   

Accrued expenses and other current liabilities

  26,229      27,071   

Revolving line of credit

  —        27,000   

Deferred revenue

  60,814      54,951   

Liabilities held for sale

  —        3,621   
  

 

 

   

 

 

 

Total current liabilities

  91,436      115,989   

Long-term liabilities:

Revolving line of credit

  57,000      —     

Deferred revenue less current portion

  2,669      1,722   

Deferred tax liability, long-term

  1,662      1,730   

Other liabilities, long-term

  360      1,367   
  

 

 

   

 

 

 

Total liabilities

  153,127      120,808   

Commitments and contingencies (Note 11)

Stockholders’ equity:

Common stock – $0.0001 par value; 150,000,000 shares authorized, 79,629,679 shares issued and 79,379,679 shares outstanding as of January 31, 2015; 150,000,000 shares authorized, 77,887,663 shares issued and 77,637,663 shares outstanding at April 30, 2014

  8      8   

Treasury stock, at cost – 250,000 shares as of January 31, 2015 and April 30, 2014

  —        —     

Additional paid-in capital

  413,443      398,201   

Accumulated other comprehensive income (loss)

  (679   328   

Accumulated deficit

  (217,671   (192,075
  

 

 

   

 

 

 

Total stockholders’ equity

  195,101      206,462   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

$ 348,228    $ 327,270   
  

 

 

   

 

 

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

 

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Table of Contents

Bazaarvoice, Inc.

Condensed Consolidated Statements of Operations

(in thousands, except net loss per share data)

(unaudited)

 

     Three Months Ended January 31,     Nine Months Ended January 31,  
     2015     2014     2015     2014  

Revenue

   $ 49,562      $ 43,600      $ 142,864      $ 125,067   

Cost of revenue

     17,988        13,758        51,758        38,383   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

  31,574      29,842      91,106      86,684   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating expenses:

Sales and marketing

  18,020      20,765      57,946      62,598   

Research and development

  8,779      9,036      27,815      27,753   

General and administrative

  6,932      7,674      22,925      19,849   

Acquisition-related and other

  413      31      3,231      15,818   

Amortization of acquired intangible assets

  309      282      928      847   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

  34,453      37,788      112,845      126,865   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating loss

  (2,879   (7,946   (21,739   (40,181
  

 

 

   

 

 

   

 

 

   

 

 

 

Other income (expense), net:

Interest income

  27      24      43      136   

Interest expense

  (536   —        (1,018   (32

Other expense

  (411   (292   (1,031   (618
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other expense, net

  (920   (268   (2,006   (514
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from continuing operations before income taxes

  (3,799   (8,214   (23,745   (40,695

Income tax expense (benefit)

  324      179      594      (82
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss from continuing operations

$ (4,123 $ (8,393 $ (24,339 $ (40,613

Income (loss) from discontinued operations, net of tax

  —        430      (1,257   1,128   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss applicable to common stockholders

$ (4,123 $ (7,963 $ (25,596 $ (39,485
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per share applicable to common stockholders:

Continuing operations

$ (0.05 $ (0.11 $ (0.31 $ (0.54

Discontinued operations

  —        0.01      (0.02   0.02   
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic and diluted loss per share:

$ (0.05 $ (0.10 $ (0.33 $ (0.52
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic and diluted weighted average number of shares outstanding

  78,898      76,071      78,315      75,047   
  

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

 

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Table of Contents

Bazaarvoice, Inc.

Condensed Consolidated Statements of Comprehensive Loss

(in thousands)

(unaudited)

 

     Three Months Ended January 31,     Nine Months Ended January 31,  
     2015     2014     2015     2014  

Net loss

   $ (4,123   $ (7,963   $ (25,596   $ (39,485

Other comprehensive gain (loss), net of tax:

        

Foreign currency translation adjustment

     (510     136        (968     269   

Unrealized gain (loss) on investments

     (57     44        (39     90   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other comprehensive gain (loss), net of tax

  (567   180      (1,007   359   
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive loss

$ (4,690 $ (7,783 $ (26,603 $ (39,126
  

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

 

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Bazaarvoice, Inc.

Condensed Consolidated Statement of Changes in Stockholders’ Equity

(in thousands)

(unaudited)

 

     Common Stock      Treasury Stock                            
     Number of
Shares
     Amount      Number of
Shares
    Amount      Additional
Paid-in
Capital
     Accumulated
Other
Comprehensive
Income (Loss)
    Accumulated
Deficit
    Total
Stockholders’
Equity (Deficit)
 

Balance at April 30, 2014

     77,888       $ 8         (250   $ —         $ 398,201       $ 328      $ (192,075   $ 206,462   

Excess tax benefit related to stock-based expense

     —           —           —          —           2         —          —          2   

Stock-based expense

     —           —           —          —           9,689         —          —          9,689   

Issuance of restricted stock awards

     115         —           —          —           —           —          —          —     

Exercise of stock options and vested restricted stock units

     1,445         —           —          —           4,356         —          —          4,356   

Shares issued under employee stock plans

     182         —           —          —           1,195         —          —          1,195   

Change in foreign currency translation adjustment

     —           —           —          —           —           (968     —          (968

Change in unrealized gain (loss) on investments

     —           —           —          —           —           (39     —          (39

Net loss applicable to common stockholders

     —           —           —          —           —           —          (25,596     (25,596
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Balance at January 31, 2015

  79,630      8      (250   —        413,443      (679   (217,671   195,101   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

 

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Bazaarvoice, Inc.

Condensed Consolidated Statements of Cash Flows

(in thousands)

(unaudited)

 

     Nine Months Ended January 31,  
     2015     2014  

Operating activities:

    

Net loss

   $ (25,596   $ (39,485

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

    

Depreciation and amortization expense

     9,169        11,167   

Loss on disposal of discontinued operations, net of tax

     1,537        —     

Stock-based expense

     9,689        10,996   

Revaluation of contingent consideration

     —          (3,270

Bad debt expense

     2,126        1,433   

Excess tax benefit related to stock-based expense

     (2     (96

Amortization of deferred financing costs

     39        —     

Other non-cash expense

     145        194   

Changes in operating assets and liabilities:

    

Accounts receivable

     (18,757     (15,802

Prepaid expenses and other current assets

     (1,600     (375

Other non-current assets

     (112     (1,473

Accounts payable

     844        475   

Accrued expenses and other current liabilities

     (2,391     (2,214

Deferred revenue

     6,810        (1,185

Other liabilities, long-term

     (933     (927
  

 

 

   

 

 

 

Net cash used in operating activities

  (19,032   (40,562

Investing activities:

Acquisitions, net of cash acquired, and purchase of intangible asset

  —        (670

Proceeds from sale of discontinued operations

  25,500      —     

Purchases of property, equipment and capitalized internal-use software development costs

  (9,250   (8,506

Decrease in restricted cash

  500      —     

Purchases of short-term investments

  (79,136   (34,517

Proceeds from maturities of short-term investments

  55,767      45,410   

Proceeds from sale of short-term investments

  5,012      31,098   
  

 

 

   

 

 

 

Net cash provided by (used in) investing activities

  (1,607   32,815   

Financing activities:

Proceeds from employee stock compensation plans

  6,215      11,039   

Proceeds from revolving line of credit

  57,000      —     

Payments on revolving line of credit

  (27,000   —     

Deferred financing costs

  (706   —     

Excess tax benefit related to stock-based expense

  2      96   
  

 

 

   

 

 

 

Net cash provided by financing activities

  35,511      11,135   

Effect of exchange rate fluctuations on cash and cash equivalents

  (1,019   259   
  

 

 

   

 

 

 

Net change in cash and cash equivalents

  13,853      3,647   

Cash and cash equivalents at beginning of period

  31,934      25,045   
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

$ 45,787    $ 28,692   
  

 

 

   

 

 

 

Supplemental disclosure of other cash flow information:

Cash paid for income taxes, net of refunds

$ 832    $ 730   

Cash paid for interest

  889      —     

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

These Condensed Consolidated Statement of Cash Flows include combined cash flows from continuing operations along with discontinued operations.

 

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Bazaarvoice, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

1. Organization and Nature of Operations

Bazaarvoice, Inc. (“Bazaarvoice” or the “Company”) is a network that connects brands and retailers to the authentic voices of people where they shop. Bazaarvoice was founded on the premise that the collective voice of the marketplace is the most powerful marketing tool in the world because of its influence on purchasing decisions, both online and offline. The Company’s technology platform collects, curates, and displays consumer-generated content including ratings and reviews, questions and answers, customer stories, and social posts, photos, and videos. This content is amplified across marketing channels, including category/product pages, search, brand sites, mobile applications, in-store displays, and paid and earned media, where it helps clients generate more revenue, market share, and brand affinity. The Company also helps clients leverage insights derived from consumer-generated content to improve marketing effectiveness, increase success of new product launches, improve existing products and services, effectively scale customer support, decrease product returns, and enable retailers to launch and manage on-site advertising solutions and site monetization strategies.

2. Summary of Significant Accounting Policies

Fiscal Year

The Company’s fiscal year end is April 30. References to fiscal year 2015, for example, refer to the fiscal year ending April 30, 2015.

Basis of Presentation

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) and applicable rules and regulations of the Securities and Exchange Commission (“SEC”) regarding interim financial reporting. Certain information and note disclosures normally included in the financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. Therefore, these unaudited condensed consolidated financial statements and notes included herein should be read in conjunction with the audited consolidated financial statements and notes included in the Company’s Annual Report on Form 10-K for the fiscal year ended April 30, 2014, filed on June 26, 2014. There have been no significant changes to the Company’s accounting policies since April 30, 2014.

The condensed consolidated balance sheet data as of April 30, 2014 was derived from the audited consolidated financial statements included in the Company’s Annual Report on form 10-K for the fiscal year ended April 30, 2014.

On July 2, 2014, the Company completed the sale of its PowerReviews business. The operating results of this business have been presented as discontinued operations for the three and nine month periods ended January 31, 2015 and 2014. Certain prior year amounts have been reclassified to conform to the current year presentation as a result of discontinued operations (See Note 3). The statement of cash flows is reported on a combined basis without separately presenting cash flows from discontinued operations for all periods presented. All other disclosures and amounts in the notes to the condensed consolidated financial statements relate to the Company’s continuing operations, unless otherwise indicated.

Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. On an ongoing basis, the Company evaluates its estimates, including those related to revenue recognition, allowance for doubtful accounts, income taxes, stock-based expense, accrued liabilities, useful lives of property, equipment and capitalized software development costs, among others. The Company bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results could differ from the estimates made by management with respect to these items.

Principles of Consolidation

The accompanying condensed consolidated financial statements include the accounts of the Company and the accounts of the Company’s wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated upon consolidation.

 

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Unaudited Interim Financial Information

The accompanying unaudited condensed consolidated financial statements and notes have been prepared in accordance with GAAP, as contained in the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification for interim financial information and Article 10 of Regulation S-X issued by the SEC. Accordingly, they do not include all the information and footnotes required by GAAP for annual fiscal reporting periods. In the opinion of management, the interim financial information includes all adjustments of a normal recurring nature necessary for a fair presentation of the results of operations, financial position, changes in stockholders’ equity and cash flows. The results of operations for the three and nine months ended January 31, 2015 are not necessarily indicative of results that may be expected for the fiscal year ending April 30, 2015 or any other period.

Concentrations of Credit Risk and Significant Customers

Financial instruments that potentially subject the Company to concentrations of credit risk consist of cash and cash equivalents and account receivables. The Company’s cash and cash equivalents are placed with high-credit-quality financial institutions and issuers, and at times may exceed federally insured limits. The Company has not experienced any loss relating to cash and cash equivalents in these accounts to date. The Company maintains an allowance for doubtful accounts receivable balances, performs periodic credit evaluations of its clients and generally does not require collateral of its clients.

No single client accounted for 10% or more of accounts receivable as of January 31, 2015 or April 30, 2014. No single client accounted for 10% or more of total revenue for the three and nine months ended January 31, 2015 or 2014.

Revenue Recognition

In general, the Company recognizes revenue when (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred or services have been rendered to the client, (iii) the fee is fixed or determinable and (iv) collectability is reasonably assured.

The Company generates revenue primarily from sales of the following services:

Software as a Service (“SaaS”)

The Company generates SaaS revenue principally from the sale of subscriptions to its hosted social commerce platform and sells its application services pursuant to service agreements that are generally one year in length. The client does not have the right to take possession of the software supporting the application service at any time, nor do the arrangements contain general rights of return. The Company accounts for these arrangements by recognizing the arrangement consideration for the application service ratably over the term of the related agreement, commencing upon the later of the agreement start date or when all revenue recognition criteria have been met.

Media

Media revenue consists primarily of fees charged to advertisers when their advertisements are displayed on websites owned by various third-parties (“Publishers”). The Company has revenue sharing agreements with these Publishers. The Company receives a fee from the advertisers and pays the Publishers based on their contractual revenue-share. Media revenues earned from the advertisers are recognized on a net basis as the Company has determined that it is acting as an agent in these transactions.

The Company’s arrangements with its clients do not currently combine SaaS and Media services.

Deferred Revenue

Deferred revenue consists of billings or payments received in advance of revenue recognition and is recognized as the revenue recognition criteria are met. The Company invoices clients in a variety of installments and, consequently, the deferred revenue balance does not represent the total contract value of its non-cancelable subscription agreements. Deferred revenue that will be recognized during the succeeding 12-month period is recorded as current deferred revenue and the remaining portion is recorded as non-current deferred revenue.

Cash and Cash Equivalents

The Company considers all highly liquid investments acquired with an original maturity of three months or less at the date of purchase and readily convertible to known amounts of cash to be cash equivalents. Investments with an original maturity greater than three months at the date of purchase are classified as short-term investments. Cash and cash equivalents are deposited with banks in demand deposit accounts, money market funds, commercial paper, corporate bonds and certificates of deposit. Cash equivalents are stated at cost, which approximates market value, because of the short maturity of these instruments.

 

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Short-term Investments

Short-term investments which are classified as available-for-sale securities consist of certificates of deposit, municipal bonds, commercial paper, U.S. Treasury notes and bonds that are a guaranteed obligation of the U.S. Government, corporate notes and corporate bonds. The Company may or may not hold securities with stated maturities greater than one year until maturity. After consideration of its risks versus reward objectives, as well as its liquidity requirements, the Company may sell these securities prior to their stated maturities. As the Company views these securities as available to support current operations, it has classified all available-for-sale securities as short-term. Available-for-sale securities are carried at fair value with unrealized gains and losses reported as a component of accumulated other comprehensive income (loss) in stockholders’ equity. For the periods presented, realized and unrealized gains and losses on short-term investments were not material. An impairment charge is recorded in the consolidated statements of operations for declines in fair value below the cost of an individual investment that are deemed to be other-than-temporary. The Company assesses whether a decline in value is temporary based on the length of time that the fair market value has been below cost, the severity of the decline, as well as the intent and ability to hold, or plans to sell, the investment. There have been no impairment charges recognized related to short-term investments for the three and nine months ended January 31, 2015 or 2014.

Restricted Cash

The Company’s restricted cash consisted of a standby letter of credit under its Pledge and Security Agreement for corporate credit card services, secured by a money market account (See Note 9).

Fair Value of Financial Instruments

The carrying amounts of the Company’s financial instruments, including cash equivalents, accounts receivable, accounts payable and accrued liabilities, approximate their respective fair values due to their short-term nature.

The Company applies the authoritative guidance on fair value measurements for financial assets and liabilities. The guidance defines fair value and increases disclosures surrounding fair value calculations. The guidance establishes a three-tiered fair value hierarchy that prioritizes inputs to valuation techniques used in fair value calculations. The three levels of inputs are defined as follows:

Level 1: Unadjusted quoted prices for identical assets or liabilities in active markets accessible by the Company.

Level 2: Inputs that are observable in the marketplace other than those inputs classified as Level 1.

Level 3: Inputs that are unobservable in the marketplace which require the Company to develop its own assumptions.

Foreign Currency Translation

The U.S. dollar is the reporting currency for all periods presented. The functional currency of the Company’s foreign subsidiaries is generally the local currency. All assets and liabilities denominated in a foreign currency are translated into U.S. dollars at the exchange rate on the balance sheet date. Revenue and expenses are translated at the average rate during the period. Equity transactions are translated using historical exchange rates. Adjustments resulting from translating foreign currency financial statements into U.S. dollars are included in other expenses, net. Foreign currency transaction gains and losses are included in net loss for the period.

Derivative Financial Instruments

As a result of the Company’s international operations, it is exposed to various market risks, such as fluctuations in currency exchange rates, which may affect its consolidated results of operations, cash flows and financial position. The Company’s primary foreign currency exposures are in Euros and British Pound Sterling. The Company faces exposure to adverse movements in currency exchange rates as the financial results of certain of its operations are translated from local currency into U.S. dollars upon consolidation. Additionally, foreign exchange rate fluctuations on transactions denominated in currencies other than the functional currency result in gains and losses that are reflected in income.

The Company may enter into derivative instruments to hedge certain net exposures of non-U.S. dollar-denominated assets and liabilities, even though it does not elect to apply hedge accounting or hedge accounting does not apply. Gains and losses resulting from a change in fair value of these derivatives are reflected in income in the period in which the change occurs and are recognized on the condensed consolidated statement of operations in other income (expense). Cash flows from these contracts are classified within net cash used in operating activities on the condensed consolidated statements of cash flows.

 

 

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The Company does not use financial instruments for trading or speculative purposes. The Company recognizes all derivative instruments on the balance sheet at fair value, and its derivative instruments are generally short-term in duration.

Derivative contracts were not material as of January 31, 2015 and April 30, 2014. The Company is exposed to the risk that counterparties to derivative contracts may fail to meet their contractual obligations.

Property, Equipment and Capitalized Internal-Use Software Development Costs

Property and equipment is carried at cost less accumulated depreciation and amortization.

Depreciation and amortization is computed utilizing the straight-line method over the estimated useful lives of the related assets as follows:

 

Computer equipment

3 years

Furniture and fixtures

5 years

Office equipment

5 years

Software

3 years

Leasehold improvements

Shorter of estimated useful life or the lease term

When depreciable assets are sold or retired, the related cost and accumulated depreciation are removed from the accounts. Any gain or loss is included in other income (expense), net in the Company’s statement of operations. Major additions and betterments are capitalized. Maintenance and repairs which do not materially improve or extend the lives of the respective assets are charged to operating expenses as incurred.

The Company capitalizes certain development costs incurred in connection with its internal-use software. These capitalized costs are primarily related to its proprietary social commerce platform that is hosted by the Company and accessed by its clients on a subscription basis. Costs incurred in the preliminary stages of development are expensed as incurred. Once an application has reached the development stage, direct internal and external costs are capitalized until the software is substantially complete and ready for its intended use. Maintenance and training costs are expensed as incurred. Internal-use software development costs are amortized on a straight-line basis over its estimated useful life, generally three years, into cost of revenue.

Goodwill, Intangible Assets, Long-Lived Assets and Impairment Assessments

The Company evaluates and tests the recoverability of its goodwill for impairment at least annually during the fourth quarter or more often if and when circumstances indicate that goodwill may not be recoverable (See Note 6).

Intangible assets are amortized over their useful lives. Each period the Company evaluates the estimated remaining useful life of its intangible assets and whether events or changes in circumstances warrant a revision to the remaining period of amortization. The carrying amounts of these assets are periodically reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of these assets may not be recoverable. Recoverability of these assets is measured by comparison of the carrying amount of each asset to the future undiscounted cash flows the asset is expected to generate. If the undiscounted cash flows used in the test for recoverability are less than the carrying amount of these assets, then the Company will recognize an impairment charge.

The Company evaluates the recoverability of its long-lived assets for possible impairment whenever events or circumstances indicate that the carrying amount of such assets may not be recoverable. If such review indicates that the carrying amount of long-lived assets is not recoverable, then the Company will recognize an impairment charge.

Stock-Based Expense

The Company records stock-based expense based upon the fair value for all issued stock options, restricted stock units and restricted stock awards to the extent vested. The fair value of restricted stock units and restricted stock awards is based on the number of shares granted and the closing price of our common stock on the date of grant. The fair value of stock options is calculated by using the Black-Scholes option pricing model.

The Company recognizes stock-based expense on a straight-line basis over the respective vesting period, net of estimated forfeitures. The Company recognizes stock-based expense for shares issued pursuant to its Employee Stock Purchase Plan on a straight-line basis over the six-month offering period. The Company includes an estimated effect of forfeitures in its stock-based expense and updates the estimated forfeiture rate through the final vesting date of the awards.

 

 

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The Company currently recognizes an insignificant tax benefit resulting from compensation costs expensed in the financial statements, however the Company provides a valuation allowance against the majority of deferred tax asset resulting from this type of temporary difference since it expects that it will not have sufficient future taxable income to realize such benefit.

Income Taxes

The Company uses the 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.

Recent Accounting Pronouncements

Presentation of Financial Statements

In January 2015, the FASB issued Accounting Standards Updates 2015-1, “Simplifying Income Statement presentation by Eliminating the Concept of Extraordinary Items,” (“ASU 2015-1”) which eliminates the concept of extraordinary items and the uncertainty in determining whether an item is considered both unusual and infrequent. Presently, an event or transaction is presumed to be ordinary and usual activity unless evidence clearly supports its classification as an extraordinary item. If an event or transaction is determined to be an extraordinary, it must be segregated from the results of ordinary operations on the statement of operations, net of tax, after income from continuing operations, along with other financial statement disclosures. ASU 2015-1eliminates the concept of extraordinary items from presentation on the statement of operations; however, the presentation and disclosure guidance for items that are unusual in nature or occur infrequently will be retained and will be expanded to include items that are both unusual in nature and infrequently occurring. The updated guidance will be effective for annual periods beginning after December 15, 2015 with early adoption permitted. The updated guidance will be effective for the fiscal year ending April 30, 2017 and is not expected to have a material impact on the Company’s condensed consolidated financial statements.

In August 2014, the FASB issued Accounting Standards Update 2014-15, “Presentation of Financial Statements—Going Concern (Subtopic 205-40), Disclosure of Uncertainties about an Entities Ability to Continue as a Going Concern,” (“ASU 2014-15”) which sets forth management’s responsibility to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern as well as required disclosures. ASU 2014-15 indicates that, when preparing financial statements for interim and annual financial statements, management should evaluate whether conditions or events, in the aggregate, raise substantial doubt about the entity’s ability to continue as a going concern for one year from the date the financial statements are issued or are available to be issued. The updated guidance will be effective for annual periods ending after December 15, 2016 with early adoption permitted. The updated guidance will be effective for the fiscal year ending April 30, 2017 and is not expected to have a material impact on the Company’s condensed consolidated financial statements.

Stock-based Expense

In June 2014, the FASB issued Accounting Standards Update 2014-12, Accounting for share-based payments when the terms of an award provide that a performance target could be achieved after the requisite service period,” (“ASU 2014-12”) which requires performance-based awards with a performance target that affects vesting and that could be achieved after an employee completes the requisite service period to be accounted for as a performance condition. If performance targets are clearly defined and it is probable that the performance condition will be achieved, stock-based expense should be recognized over the remaining requisite service period. The updated guidance will be effective for annual periods beginning after December 15, 2015 with early adoption permitted. The updated guidance will be effective for the fiscal year ending April 30, 2017 and is not expected to have a material impact on the Company’s condensed consolidated financial statements.

Revenue

In May 2014, the FASB issued Accounting Standards Update 2014-09, “Revenue from Contracts with Customers,” (“ASU 2014-09”) which provides updated, comprehensive revenue recognition guidance for contracts with customers, including a new principles-based five step framework that eliminates much of the industry-specific guidance in current accounting literature. Under ASU 2014-09, revenue recognition is based on a core principle that companies recognize revenue in an amount consistent with the consideration it expects to be entitled to in exchange for the transfer of goods or services. The standards update also requires enhanced

 

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disclosures regarding the nature, amount, timing and uncertainty of recognized revenue. The updated guidance will be effective for annual periods beginning after December 15, 2016 and may be applied on either a full or modified retrospective basis, with early adoption not permitted. The updated guidance will be effective for the fiscal year ending April 30, 2018 and the Company is currently evaluating the impact of this standards update on the Company’s condensed consolidated financial statements.

Discontinued Operations

In April 2014, the FASB issued Accounting Standards Update 2014-08, “Reporting of Discontinued Operations and Disclosures of Disposals of Components of an entity,” (“ASU 2014-08”) which changes the criteria for determining which disposals can be presented as discontinued operations and requires new disclosures for individually significant dispositions that do not quality as discontinued operations. ASU 2014-08 is effective prospectively for fiscal years and interim reporting periods within those years beginning after December 15, 2014, with early adoption permitted for transactions that have not been reported in financial statements previously issued or available for issuance. The standard will be effective for the fiscal year ending April 30, 2016 and is not expected to have a material impact on the Company’s condensed consolidated financial statements.

3. Discontinued Operations

On June 4, 2014, the Company entered into a definitive agreement to divest the assets of PowerReviews, Inc. (“PowerReviews”), pursuant to a Joint Stipulation with the Department of Justice and Order to the U.S. District Court for the Northern District of California, San Francisco Division, for $30.0 million in cash, $4.5 million of which is to be held in escrow as a partial security for the Company’s indemnification obligations under the definitive agreement and is set to expire July 2015 (See Note 11). As a result, PowerReviews revenues, related expenses and loss on disposal, net of tax, are components of “income (loss) from discontinued operations, net of tax” in the condensed consolidated statements of operations. Any reduction in proceeds of the escrow related to the divestiture agreement would be recorded as an additional loss. As of April 30, 2014, on the condensed consolidated balance sheets, the assets and liabilities of the discontinued operations of PowerReviews were presented as ‘Assets held for sale’ and ‘Liabilities held for sale,’ respectively. The statement of cash flows is reported on a combined basis without separately presenting cash flows from discontinued operations for all periods presented.

The Company incurred a total loss on the disposal of the PowerReviews business of $10.7 million; of which, $9.2 million was recognized as an estimated loss on disposal of discontinued operations during the twelve months ended April 30, 2014. The additional $1.5 million loss recognized in the nine months ended January 31, 2015 was primarily caused by a decrease of $0.5 million in estimated cash proceeds as of April 30, 2014 and incremental transaction costs of $0.4 million.

Results from discontinued operations were as follows (in thousands):

 

     Three Months Ended January 31,      Nine Months Ended January 31,  
     2015      2014      2015      2014  

Revenues from discontinued operations

   $ —         $ 4,397       $ 2,535       $ 13,039   

Income from discontinued operations before income taxes

   $ —         $ 691       $ 303       $ 1,810   

Income tax expense

     —           261         23         682   
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income from discontinued operations

  —        430      280      1,128   

Loss on disposal of discontinued operations, net of tax

  —        —        (1,537   —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Income (loss) from discontinued operations, net of tax

$ —      $ 430    $ (1,257 $ 1,128   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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The carrying amounts of the major classes of assets and liabilities of discontinued operations were as follows (in thousands):

 

     July 2,      April 30,  
     2014      2014  

ASSETS:

     

Restricted cash

   $ 104       $ —     

Accounts receivable, net

     1,097         1,036   

Prepaid expenses and other current assets

     48         49   
  

 

 

    

 

 

 

Total current assets

  1,249      1,085   

Property and equipment, net

  37      37   

Goodwill

  9,002      9,002   

Acquired intangible assets, net

  32,813      32,813   
  

 

 

    

 

 

 

Total assets

$ 43,101    $ 42,937   
  

 

 

    

 

 

 

LIABILITIES:

Accounts payable

$ 76    $ 221   

Accrued expenses and other current liabilities

  823      895   

Deferred revenue

  2,230      2,505   
  

 

 

    

 

 

 

Total Liabilities

$ 3,129    $ 3,621   
  

 

 

    

 

 

 

The Company recorded a loss on the disposal of discontinued operations of $1.5 million, net of tax, in the nine months ended January 31, 2015 which was calculated as follows (in thousands):

 

Cash consideration

$ 30,000   

Less:

Basis in net assets as of July 2, 2014

  39,972   

Costs incurred directly attributable to the transaction

  1,039   
  

 

 

 

Loss before income taxes

  (11,011

Income tax benefit

  (282
  

 

 

 

Loss on disposal of discontinued operations, net of taxes

  (10,729

Loss on disposal of discontinued operations, net of taxes, previously recognized

  9,192   
  

 

 

 

Loss on disposal of discontinued operations, net of tax, recognized in current  period

$ (1,537
  

 

 

 

The carrying amount of assets held for sale in the condensed consolidated balance sheet was calculated as follows (in thousands):

 

     April 30,
2014
 

Total assets of discontinued operations

   $ 42,937   

Estimated loss on disposal of discontinued operations, net of tax

     (9,192
  

 

 

 

Assets held for sale

$ 33,745   
  

 

 

 

As of January 31, 2015, there were no ‘assets held for sale’ as the divestiture of the PowerReviews business was completed on July 2, 2014. The $4.5 million held in escrow is recorded as a receivable in “Prepaid expenses and other current assets” on the Condensed Consolidated Balance Sheet as of January 31, 2015. As of January 31, 2015, the Company has received no claims for indemnification under the definitive agreement.

 

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4. Fair Value of Financial Assets and Liabilities

The following table summarizes the Company’s cash and cash equivalents as of January 31, 2015 and April 30, 2014 (in thousands):

 

     January 31,
2015
     April 30,
2014
 

Demand deposit accounts

   $ 43,006       $ 24,721   

Money market funds

     1,100         6,971   

Certificates of deposit

     —           242   

Commercial paper

     1,280         —     

Corporate bonds

     401         —     
  

 

 

    

 

 

 

Total cash and cash equivalents

$ 45,787    $ 31,934   
  

 

 

    

 

 

 

The following table summarizes the Company’s short-term investments as of January 31, 2015 (in thousands):

 

     Cost      Gross
Unrealized
Gains
     Gross
Unrealized
Losses
     Fair Value  

Available-for-sale securities:

           

Certificates of deposit

   $ 5,680       $ 6       $ (3    $ 5,683   

Municipal bonds

     4,714         10         (26      4,698   

Commercial paper

     5,839         1         (2      5,838   

U.S. Treasury notes

     28,823         4         (17      28,810   

U.S. Treasury bonds

     5,001         —           (3      4,998   

Corporate notes

     2,709         4         —           2,713   

Corporate bonds

     6,274         1         (7      6,268   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total short-term investments

$ 59,040    $ 26    $ (58 $ 59,008   
  

 

 

    

 

 

    

 

 

    

 

 

 

The following table summarizes the Company’s short-term investments as of April 30, 2014 (in thousands):

 

     Cost      Gross
Unrealized
Gains
     Gross
Unrealized
Losses
     Fair Value  

Available-for-sale securities:

           

Certificates of deposit

   $ 7,466       $ 17       $ (9    $ 7,474   

U.S. Treasury notes

     33,226         2         (2      33,226   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total short-term investments

$ 40,692    $ 19    $ (11 $ 40,700   
  

 

 

    

 

 

    

 

 

    

 

 

 

All short-term investments had original maturity dates of less than 12 months as of January 31, 2015 and April 30, 2014. Realized gains and losses from the sale of short-term investments were not material for the three and nine months ended January 31, 2015 and 2014.

 

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The following table summarizes the fair value of the Company’s financial assets and liabilities that were measured on a recurring basis as of January 31, 2015 and April 30, 2014 (in thousands):

 

     Fair Value Measurements at January 31, 2015      Fair Value Measurements at April 30, 2014  
     Level 1      Level 2      Level 3      Total      Level 1      Level 2      Level 3      Total  

Assets:

                       

Cash equivalents:

                       

Money market funds

   $ 1,100       $ —         $ —         $ 1,100       $ 6,971       $ —         $ —         $ 6,971   

Certificates of deposit

     —           —           —           —           242         —           —           242   

Commercial paper

      —           1,280         —           1,280         —           —           —           —     

Corporate bonds

     —           401         —           401         —           —           —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total cash equivalents

  1,100      1,681      —        2,781      7,213      —        —        7,213   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Restricted cash

  —        —        —        —        604      —        —        604   

Short-term investments:

Certificates of deposit

  —        5,683      —        5,683      —        7,474      —        7,474   

Municipal bonds

  —        4,698      —        4,698      —        —        —        —     

Commercial paper

  —        5,838      —        5,838      —        —        —        —     

U.S. Treasury notes

  28,810      —        —        28,810      33,226      —        —        33,226   

U.S. Treasury bonds

  4,998      —        —        4,998      —        —        —        —     

Corporate notes

  —        2,713      —        2,713      —        —        —        —     

Corporate bonds

  —        6,268      —        6,268      —        —        —        —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total short-term investments

  33,808      25,200      —        59,008      33,226      7,474      —        40,700   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

$ 34,908    $ 26,881    $ —      $ 61,789    $ 41,043    $ 7,474    $ —      $ 48,517   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The Company measures certain assets, including property and equipment, goodwill and intangible assets, at fair value on a non-recurring basis. These assets are recognized at fair value when they are deemed to be other than temporarily impaired. The Company evaluates transfers between levels at the end of the fiscal year and assumes that any identified transfers are deemed to have occurred at the end of the reporting year. There were no transfers between levels in any of the periods presented.

5. Business Combinations

On April 15, 2014, during the fourth quarter of fiscal year 2014, the Company acquired FeedMagnet Inc. (“FeedMagnet”), a social media curation company, for $9.3 million in cash. The Company accounted for the FeedMagnet acquisition using the acquisition method of accounting. As of January 31, 2015, the Company did not record any adjustments to the preliminary purchase price allocation.

6. Goodwill

As of January 31, 2015 and April 30, 2014, the Company had goodwill in the amount of $139.2 million. The Company assesses goodwill for impairment annually in the fourth fiscal quarter, or more frequently if other indicators of potential impairment arise. There were no potential indicators of impairment during the nine months ended January 31, 2015.

7. Acquired Intangible Assets, net

Acquired intangible assets, net, as of January 31, 2015 and April 30, 2014 for continuing operations are as follows (in thousands):

 

     January 31,      April 30,  
     2015      2014  
     Gross Fair
Value
     Accumulated
Amortization
    Net Book
Value
     Gross Fair
Value
     Accumulated
Amortization
    Net Book
Value
 

Customer relationships

   $ 11,835       $ (2,612   $ 9,223       $ 11,835       $ (1,684   $ 10,151   

Developed technology

     3,265         (518     2,747         3,265         (28     3,237   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total

$ 15,100    $ (3,130 $ 11,970    $ 15,100    $ (1,712 $ 13,388   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

 

 

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Acquired intangible assets, net, as of April 30, 2014 for discontinued operations are as follows (in thousands):

 

     April 30, 2014  
     Gross Fair
Value
     Accumulated
Amortization
     Impairment      Net Book
Value
 

Customer relationships

   $ 39,966       $ (7,463    $ (2,354    $ 30,149   

Developed technology

     5,400         (3,390      (146      1,864   

Domain name (indefinite useful life)

     800         —           —           800   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

$ 46,166    $ (10,853 $ (2,500 $ 32,813   
  

 

 

    

 

 

    

 

 

    

 

 

 

Because the sale of the PowerReviews business was completed on July 2, 2014 there were no acquired intangible assets, net, for discontinued operations as of January 31, 2015.

The amortization of customer relationships is recorded as amortization expenses and the amortization for developed technology is amortized to cost of revenue.

The following table presents our estimate of future amortization expenses for definite-lived intangible assets (in thousands):

 

Fiscal period:

   Amount  

Remaining three months of Fiscal year 2015

   $ 472   

Fiscal year 2016

     1,890   

Fiscal year 2017

     1,890   

Fiscal year 2018

     1,890   

Fiscal year 2019

     1,856   

Thereafter

     3,972   
  

 

 

 

Total

$ 11,970   
  

 

 

 

8. Income Taxes

The Company computes its interim provision for income taxes by applying the estimated annual effective tax rate to income from operations and adjusts the provision for discrete tax items occurring in the period. For continuing operations, the Company’s effective tax rate for the three months ended January 31, 2015 was 8.5 percent compared to 2.2 percent for the three months ended January 31, 2014 and for the nine months ended January 31, 2015 was 2.5 percent compared to a benefit of (0.2) percent for the nine months ended January 31, 2014. The tax expense for the three and nine months ended January 31, 2015 were primarily attributable to estimated foreign and state income tax expense. During the nine months ended January 31, 2014, a benefit of $0.4 million was recorded as a discrete item related to the 2013 Texas state research and development credit which was enacted in the first quarter of the prior fiscal year.

9. Debt

Prior Credit Facility

On July 18, 2007, the Company entered into a loan and security agreement (“Loan Agreement”) with Comerica Bank which was amended from time to time. The Loan Agreement provided for a revolving line of credit with a borrowing capacity of up to the lesser of (a) $30.0 million or (b) 100% of eligible monthly service fees as defined in the Loan Agreement, inclusive of any amounts outstanding under the $2.7 million sublimit for corporate credit card and letter of credit services. The revolving line of credit was set to expire on January 31, 2015. The revolving line of credit bore interest at the prime base rate as defined in the Loan Agreement except during any period of time during which the line bore interest at the daily adjusting LIBOR rate plus 2.5%. Borrowings under the revolving line of credit were collateralized by substantially all assets of the Company and its U.S. subsidiaries. As of April 30, 2014, the Company had drawn down $1.6 million in the form of a letter of credit as security deposits for its leased corporate headquarters which expired on December 31, 2014 (See Note 12 ii). As of October 31, 2014, the Company had drawn down an additional $0.3 million in the form of letters of credit as security deposits for its leased San Francisco office space. On February 21, 2014, the Company drew down $27.0 million of its unused balance of the revolving line of credit which was repaid on November 21, 2014 upon execution of the Amended and Restated Credit Facility. The outstanding loan balance as of April 30, 2014, was subject to all terms and conditions described above in the Loan Agreement and its subsequent amendments. The unused balance of the revolving line of credit was $1.4 million as of April 30, 2014. The Company was in compliance with all financial covenants as of April 30, 2014.

 

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Amended and Restated Credit Facility

On November 21, 2014, the Company entered into an Amended and Restated Credit Facility (the “Credit Facility”) with Comerica Bank which provides for a secured, revolving line of credit of up to $70.0 million, with a sublimit of $3.0 million for the incurrence of swingline loans and a sublimit of $15.0 million for the issuance of letters of credit. The Credit Facility amended and restated the Loan Agreement and all letters of credits under the Loan Agreement were transferred to the Credit Facility. Borrowings under the Credit Facility are collateralized by substantially all assets of the Company and of its U.S. subsidiaries. The revolving line of credit bears interest at the adjusted LIBOR rate plus 3.5%. On November 21, 2014, the Company drew down $57.0 million of the unused balance of the Credit Facility, of which, $27.0 million was used to repay the outstanding balance on the Loan Agreement. On December 4, 2014, the Company drew down $8.0 million in the form of a letter of credit as a security deposit for the lease for the Company’s new headquarters (See Note 11). In January 2015, the Company transferred a $1.0 million Pledge and Security Agreement to be included as a form of a letter of credit under the Credit Facility, resulting in an unused balance of $3.7 million as of January 31, 2015. The Credit Facility expires on November 21, 2017 with all advances immediately due and payable. The Company was not compliant with a non-financial covenant as of January 31, 2015; however, on February 27, 2015 the Company obtained a waiver from Comerica Bank and expects to be compliant in subsequent periods (See Note 12 iii). The Company was in compliance with all financial covenants contained in the Credit Facility as of January 31, 2015.

The Company did not recognize a gain or loss on the extinguishment of the Loan Agreement. The Company incurred $0.7 million of fees in connection with the Amended and Restated Credit Facility which were capitalized and are being amortized to interest expense using the straight-line method, which approximates the effective interest method, over the life of the Credit Facility.

Pledge and Security Agreement

On November 4, 2008, the Company entered into a Pledge and Security Agreement with Comerica for a standby letter of credit for credit card services from a separate financial institution which was amended on October 29, 2014 to increase the standby letter of credit by $0.5 million to $1.0 million. The Company pledged a security interest in its money market account, in which the balance must equal at least the credit extended. This letter of credit expires annually, and the pledged security interest is recorded as short-term restricted cash in the Company’s condensed consolidated financial statements. In January 2015, the Company transferred the $1.0 million Pledge and Security Agreement to be included as a form of letter of credit under the Credit Facility, and therefore the Pledge and Security Agreement obligations are no longer considered restricted cash.

 

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10. Net Loss Per Share Applicable to Common Stockholders

The following table sets forth the computations of net loss per share applicable to common stockholders for the three and nine months ended January 31, 2015 and 2014, respectively (in thousands, except net loss per share data):

 

     Three Months Ended January 31,      Nine Months Ended January 31,  
     2015      2014      2015      2014  

Net loss from continuing operations

   $ (4,123    $ (8,393    $ (24,339    $ (40,613

Net income (loss) from discontinued operations, net of tax

     —           430         (1,257      1,128   
  

 

 

    

 

 

    

 

 

    

 

 

 

Net loss applicable to common stockholders

$ (4,123 $ (7,963 $ (25,596 $ (39,485
  

 

 

    

 

 

    

 

 

    

 

 

 

Basic and diluted loss per share

Continuing operations

$ (0.05 $ (0.11 $ (0.31 $ (0.54

Discontinued operations

  —        0.01      (0.02   0.02   
  

 

 

    

 

 

    

 

 

    

 

 

 

Basic and diluted loss per share:

$ (0.05 $ (0.10 $ (0.33 $ (0.52 ) (2)  

Basic and diluted weighted average number of shares outstanding

  78,898      76,071      78,315      75,047   

Potentially dilutive securities (1) :

Outstanding stock options

  721      1,761      817      2,520   

Restricted shares

  629      219      404      271   

 

(1)   The impact of potentially dilutive securities on earnings per share is anti-dilutive in a period of net loss.
(2) The sum of the earnings per share amounts for continuing and discontinued operations does not equal the total earnings per share amount for the year as previously reported due to the effects of rounding.

11. Commitments and Contingencies

In the ordinary course of business, the Company may be subject to various legal proceedings and claims including alleged infringement of third-party patents and other intellectual property rights. The Company reviews the status of each matter and records a provision for a liability when it is considered both probable that a liability has been incurred and that the amount of the loss can be reasonably estimated. Legal fees incurred in connection with loss contingencies are recognized as incurred when the legal services are provided, and therefore are not recognized as a part of a loss contingency accrual. These provisions are reviewed quarterly and adjusted as additional information becomes available.

On June 12, 2012, the Company acquired PowerReviews, Inc. (“PowerReviews”), a provider of social commerce solutions, for a total cash and stock purchase price of $150.8 million. On January 8, 2014, the U.S. District Court for the Northern District of California, San Francisco Division (the “Court”) ruled, in connection with a complaint filed by the U.S. Department of Justice (the “DOJ”), that the Company’s acquisition of PowerReviews violated Section 7 of the Clayton Act, 15 U.S.C. Section 18. On April 24, 2014, the Company entered into a Joint Stipulation with the DOJ to resolve the DOJ’s claims in the antitrust action and, together with the DOJ, the Company submitted a proposed order to the Court (the “Order”). Under the terms of the Joint Stipulation and the Order, on June 4, 2014, the Company entered into a definitive agreement to divest all of the assets of PowerReviews, LLC, the successor to PowerReviews, to Wavetable Labs, LLC (“Wavetable”) for $30.0 million in cash, $4.5 million of which is to be held in escrow as partial security for the Company’s indemnification obligations under the definitive agreement. The terms of this transaction were approved by the DOJ on June 26, 2014, and the transaction was completed on July 2, 2014. Wavetable subsequently changed its name to PowerReviews. As a result of the foregoing, PowerReviews revenues, related expenses and loss on disposal, net of tax, are components of “loss from discontinued operations, net of tax” in the condensed consolidated statement of operations. On the condensed consolidated balance sheets, the assets and liabilities of the discontinued operations of PowerReviews have been presented as ‘Assets held for sale’ and ‘Liabilities held for sale,’ respectively. The statement of cash flows is reported on a combined basis without separately presenting cash flows from discontinued operations.

The Company realized a total loss on the disposal of PowerReviews of $10.7 million; of which, $9.2 million was recognized as an estimated loss on disposal of discontinued operations during the fiscal year ended April 30, 2014. The Company recognized the incremental loss of $1.5 million in the current fiscal year (See Note 3).

On August 20, 2014, the Company was informed that the DOJ was investigating whether the Company retained any PowerReviews technology in violation of the Joint Stipulation and Order. This matter has been resolved by an agreement between the Company and the DOJ to modify the Proposed Final Judgment through the addition of terms relating to the appointment of an antitrust compliance officer. These agreed modifications to the Proposed Final Judgment were filed with the Court on December 1, 2014 and the Final Judgment was entered by the Court on December 2, 2014.

On March 12, 2013, a purported shareholder derivative action was filed in the Texas State District Court for Travis County, Texas against certain of the Company’s officers and directors, former officers and directors, and against the Company as nominal

 

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defendant. The original petition alleged claims purportedly on behalf of the Company against the individual defendants for corporate waste, breaches of fiduciary duties and breaches of the Company’s corporate policies in connection with the acquisition of PowerReviews and certain of the Company’s officers’ and directors’ sales of shares of the Company’s stock. The original petition requested declaratory judgment, a disgorgement of $91.4 million in proceeds received from such sales of the Company’s stock, unspecified damages on behalf of the Company, reasonable attorneys’, accountants’ and experts’ fees, and equitable relief. After the court granted a motion filed by the Company and individual defendants that the plaintiff’s original petition failed to allege particularized facts sufficient to excuse plaintiff from making pre-suit demand on the Company’s Board of Directors, the plaintiff filed an amended petition November 22, 2013, which again asserted claims for corporate waste, breaches of fiduciary duties and breaches of the Company’s corporate policies in connection with the acquisition of PowerReviews and certain of the Company’s officers’ and directors’ sales of shares of the Company’s stock. The court stayed the lawsuit and its ruling on the Company’s motion for summary judgment to allow the parties to participate in mediation. On July 9, 2014, the parties attended mediation and agreed to preliminary settlement terms. On September 23, 2014, the court preliminarily approved the settlement agreement and directed the Company to notify its shareholders of the proposed settlement, a final hearing on November 24, 2014, and a motion for attorneys’ fees and expenses. On November 24, 2014, the court signed a Final Judgment approving the notice to shareholders and the proposed settlement and payments to plaintiff and plaintiff’s counsel, and dismissing all claims arising out of, relating to, or concerning the PowerReviews acquisition or divestiture, any reports, disclosures, or statements made by the current or former directors or officers of the Company in relation to the PowerReviews acquisition or divestiture, or any related matter that could have been asserted. The settlement did not have a material impact on the Company’s condensed consolidated financial statements.

As of January 31, 2015, the Company was in the process of assessing the sales tax status of the Bazaarvoice enterprise service offering with sales tax agencies in certain states in which it operates. Based on the limited information received from certain of these states, the Company was unable to determine with certainty the historical time period for which these services were taxable, and, for certain states, which of its service offerings and features these states may determine to be subject to state sales tax. As of January 31, 2015, the Company estimated that its liability, net of amounts to be recovered from clients, would be between $2.8 million and $3.3 million. The Company has accrued a liability of $3.1 million, representing its best estimate of the amount within this range that it believes is probable to be incurred to settle these obligations. The estimated range includes an action plan for recovering the amounts due from the Company’s clients. Other estimates inherent in the amount accrued are the time period in which the products are taxable and the portion of the Company’s product offering subject to state sales tax. On February 6, 2015, the Company received a letter from a state sales tax agency exempting certain enterprise service offerings from state sales tax. The Company is in discussion with the state sales tax agency to evaluate the financial impact of the exemptions. The Company believes the accrual recorded as of January 31, 2015 will be sufficient to cover any liability due to the state sales tax agency related to service offerings that were not exempted (See Note 12 i).

On November 13, 2014, the Company entered into a lease (the “Lease”), pursuant to which the Company will lease approximately 137,615 square feet of office space in Austin, Texas. This will serve as the new headquarters of the Company and will be used for general office purposes. The term of the Lease commences on January 1, 2016 unless otherwise modified (“Commencement Date”) and terminates approximately ten years and six months after the Commencement Date. The Company has the option to extend the term of the Lease for up to two successive periods of five years each and the Company was required to obtain a stand by letter of credit of $8.0 million as a security deposit for the Lease. The expected lease payments for the original term are estimated to be approximately $0.3 million for fiscal year ended April 30, 2016, $3.8 million for fiscal year ended April 30, 2017, $3.8 million for fiscal year ended April 30, 2018, $3.9 million for fiscal year ended April 30, 2019, $4.0 million for the fiscal year ended April 30, 2020 and $25.9 million for the fiscal years ended April 30 th thereafter.

12. Subsequent Events

 

  i. On February 6, 2015, the Company received a letter from a state sales tax agency exempting certain enterprise service offerings from state sales tax. The Company believes the accrual recorded as of January 31, 2015 will be sufficient to cover any liability due to the state sales tax agency related to service offerings that were not exempted (See Note 11).

 

  ii. The Company’s security deposit for its corporate leased headquarters was in the form of a letter of credit of $1.6 million which expired on December 31, 2014 (See Note 9). As per the provisions of the lease, the Company is required to maintain this security deposit until December 31, 2015, the end of the contractual term of the lease. The Company is currently in the process of renewing this letter of credit.

 

  iii. As of January 31, 2015, the Company was not compliant with a non-financial covenant of the Credit Facility (See Note 9). On February 27, 2015, the Company received a waiver from Comerica Bank and expects to be compliant in subsequent periods. The non-compliance had no impact on the Company’s condensed consolidated financial statements.

 

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

Forward Looking Statements

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our unaudited condensed consolidated financial statements and the notes thereto appearing elsewhere in this Quarterly Report on Form 10-Q and our other filings with the Securities and Exchange Commission (“SEC”), including our Annual Report on Form 10-K for the fiscal year ended April 30, 2014, filed on June 26, 2014. In addition to historical information, this Quarterly Report on Form 10-Q 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 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. Statements that contain these words should be read carefully because they discuss our future expectations, contain projections of our future results of operations or of our financial position, or state other forward-looking information. Factors that can cause actual results to differ materially from those reflected in the forward-looking statements include, among others, those discussed in the “Risk Factors” section of our Annual Report on Form 10-K for the year ended April 30, 2014 and this Quarterly Report on Form 10-Q. We urge you not to place undue reliance on these forward looking statements, which reflect management’s analysis, judgment, belief or expectation only as of the date hereof. We expressly disclaim any obligation to update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by applicable securities laws and regulations. Historical results are not necessarily indicative of the results expected for any future period.

Factors or risks that could cause our actual results to differ materially from the results we anticipate include, but are not limited to:

 

    our ability to timely and effectively scale and adapt our existing technology and network infrastructure;

 

    our ability to retain clients or renew them at similar prices and upsell to existing clients;

 

    our ability to attract new clients and launch without delays;

 

    our ability to increase adoption of our platforms by our clients’ internal and external users;

 

    our ability to protect our users’ information and adequately address security and privacy concerns;

 

    our ability to maintain an adequate rate of growth;

 

    our ability to effectively execute and adapt our business model in a dynamic market;

 

    our future expenses;

 

    our ability to expand our network;

 

    our ability to integrate clients, employees and operations of acquired companies into our business;

 

    our ability to earn revenue based on ads that are served on our network;

 

    our plan to continue investing in long-term growth and research and development, enhancing our platforms and pursuing strategic acquisitions of complementary businesses and technologies to drive future growth;

 

    our ability to increase engagement of our solutions by our clients, partners and professional organizations and launch those solutions without delay;

 

    our anticipated trends of our operating metrics and financial and operating results;

 

    the effects of increased competition and commoditization of products we offer, including pricing pressure, reduced profitability or loss of market share;

 

    our ability to effectively manage our growth;

 

    our ability to successfully enter new markets and manage our international expansion;

 

    our ability to maintain, protect and enhance our brand and intellectual property;

 

    the attraction and retention of qualified employees and key personnel;

 

    our expectations regarding the outcome of litigation proceedings; and

 

    other risk factors included under “Risk Factors” in this Quarterly Report on Form 10-Q.

 

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The outcome of the events described in these forward-looking statements is subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from our forward-looking statements, including those factors discussed in Part II, Item 1A: “Risk Factors” of this Quarterly Report on Form 10-Q and other risks and uncertainties detailed in this and our other reports and filings with the SEC. The forward-looking statements in this Quarterly Report on Form 10-Q represent our views as of the date of this Quarterly Report on Form 10-Q. We anticipate that subsequent events and developments may cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this Quarterly Report on Form 10-Q.

Overview

We are a network that connects brands and retailers to the authentic voices of people where they shop. Bazaarvoice was founded on the premise that the collective voice of the marketplace is the most powerful marketing tool in the world because of its influence on purchasing decisions, both online and offline. Our technology platform collects, curates, and displays consumer-generated content including ratings and reviews, questions and answers, customer stories, and social posts, photos, and videos. This content is amplified across marketing channels, including category/product pages, search, brand sites, mobile applications, in-store displays, and paid and earned media, where it helps clients generate more revenue, market share, and brand affinity. We also help clients leverage insights derived from consumer-generated content to, improve marketing effectiveness, increase success of new product launches, improve existing products and services, effectively scale customer support, decrease product returns, and enable retailers to launch and manage on-site advertising solutions and site monetization strategies.

Since our inception in May 2005, we have experienced revenue growth primarily driven by an increase in the number of active clients and an increase in the number of subscriptions of our products and offerings sold to existing clients. In order to take advantage of our growth opportunity and to provide high levels of client service, we have expanded our number of full-time employees since the fiscal year following our IPO. We believe our growth is further illustrated by SaaS impressions served, which we define as single instances of online word of mouth delivered to an end user’s web browser, as this metric measures the reach of our network to a consumer audience.

The following table summarizes measures of our growth from continuing operations for the three and nine months ended January 31, 2015 and 2014:

 

     Three Months Ended January 31,      Nine Months Ended January 31,  
     2015      2014      2015      2014  

Revenue (in thousands)

   $ 49,562       $ 43,600       $ 142,864       $ 125,067   

Number of active clients (period end) (1)

     1,315         1,011         1,315         1,011   

Full-time employees (period end) (2)

     825         794         825         794   

SaaS impressions served (in millions) (3)

     85,130         65,801         210,427         160,493   

 

(1)   Beginning as of our fourth quarter of fiscal year 2014, we define an active client as an organization from which we are currently recognizing recurring revenue. We count organizations that are closely related as one client, even if they have signed separate contractual agreements. We believe that our ability to increase our active client base is a leading indicator of our ability to grow revenue. Due to the presentation of the PowerReviews business as discontinued operations, the number of active clients above are from continuing operations only. As a result, each category could include a common client for which we recognized recurring revenue who has organizations that have separate contractual agreements. All periods prior to the fourth quarter of fiscal 2014 have been revised to conform to this definition of an active client from continuing operations.
(2)   Included in full-time employees for three and nine months ended January 31, 2014 are 25 full-time employees attributable to discontinued operations of PowerReviews.
(3)   The number of SAAS impressions for the three and nine months ended January 31, 2015 and 2014 are exclusive of impressions served on either the PowerReviews enterprise platform or the Express platform.

For the three and nine months ended January 31, 2015, through the continued enhancement and expansion of our social commerce platform, we achieved continued growth in the number of active clients as compared to the three and nine months ended January 31, 2014. Our revenue from continuing operations was $49.6 million and $142.9 million for the three and nine months ended January 31, 2015, respectively, which represents a 13.7% and 14.2% increase from the three and nine months ended January 31, 2014, respectively.

For the remainder of fiscal year 2015, we plan to continue to invest for long-term growth. We expect to continue the enhancement of our platforms by developing new solutions, adding new features and functionality and expanding the potential applications of our existing solutions. We also plan to continue our investments in research and development and to pursue strategic acquisitions of complementary businesses and technologies that will enable us to continue to drive growth in the future.

 

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Business Model

Our business model focuses on adding new clients and maximizing the lifetime value of such client relationships. We make significant investments in acquiring new clients and believe that we will be able to achieve a favorable return on these investments by growing our relationships over time and ensuring that we have a high level of client retention.

In connection with the acquisition of new clients, we incur and recognize significant upfront costs. These costs include sales and marketing costs associated with generating client agreements, such as sales commission expenses that are recognized fully in the period in which we execute a client contract. In addition, we incur implementation costs which are generally recognized in periods prior to recognizing revenue. However, we recognize revenue ratably over the entire term of those contracts, which commences when the client is able to begin using our solution. Although we expect each client to be profitable for us over the duration of our relationship, the costs we incur with respect to any client relationship may exceed revenue in earlier periods because we recognize those costs in advance of the recognition of revenue. As a result, an increase in the mix of new clients as a percentage of total clients will initially have a negative impact on our operating results. On the other hand, we expect that a decrease in the mix of new clients as a percentage of total clients will initially have a positive impact on our operating results. Additionally, some clients pay in advance of the recognition of revenue and, as a result, our cash flow from these clients may exceed the amount of revenue recognized for those clients in earlier periods of our relationship. As we depend on third-party Internet-hosting providers to operate our business, increased computing and storage consumption by some of our customers can increase our hosting costs and impact our gross margins.

Key Business Metrics

In addition to macroeconomic trends affecting the demand for our solutions, management regularly reviews a number of key financial and operating metrics to evaluate our business, determine the allocation of our resources, make decisions regarding corporate strategies and evaluate forward-looking projections and trends affecting our business. The following table summarizes our key business metrics for continuing operations:

 

     Three Months Ended January 31,     Nine Months Ended January 31,  
     2015     2014     2015     2014  
     (in thousands, except number of clients and client retention rate)  

Revenue:

        

SaaS

   $ 46,429      $ 40,645      $ 135,952      $ 119,404   

Media

     3,133        2,955        6,912        5,663   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

$ 49,562    $ 43,600    $ 142,864    $ 125,067   
  

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow used in operations

$ (6,887 $ (18,973 $ (19,032 $ (40,562

Number of active clients (period end)

  1,315      1,011      1,315      1,011   

SaaS revenue per active client (1)

$ 36.1    $ 40.8    $ 111.1    $ 126.0   

Active client retention rate (2)

  96.4   95.8   85.9   89.7

Total revenue per employee (3)

$ 60.5    $ 56.6    $ 178.6    $ 164.2   

 

(1) Calculated based on the average number of active clients for the three and nine month periods from continuing operations.
(2)   Calculated based on active client retention over a three and nine month period from continuing operations.
(3)   Calculated based on the average number of full-time employees for the three and nine month periods. For the purpose of this calculation, we have excluded content moderators and full-time employees attributable to discontinued operations of PowerReviews for the three and nine months ended January 31, 2014.

Revenue

SaaS revenue consists primarily of fees from the sale of subscriptions to our hosted social commerce solutions, and we generally recognize revenue ratably over the related subscription period, which is typically one year. We regularly review our revenue and revenue growth rate to measure our success. We believe that trends in revenue are important to understanding the overall health of our marketplace, and we use these trends in order to formulate financial projections and make strategic business decisions.

Media revenue consists primarily of fees charged to advertisers when their advertisements are displayed on our publishers’ websites and is net of amounts due to such publishers.

 

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Cash Flow Used in Operations

Cash flow used in operations is the cash that we use through the normal course of business and is measured prior to the impact of investing or financing activities. Due to the fact that we incur a significant amount of upfront costs associated with the acquisition of new clients with revenue recognized over an extended period, we consider cash flows used in operations to be a key measure of our operating performance.

Number of Active Clients

Beginning as of our fourth quarter of fiscal year 2014, we define an active client as an organization from which we are currently recognizing recurring revenue, and we count organizations that are closely related as one client, even if they have signed separate contractual agreements. We believe that our ability to increase our active client base is a leading indicator of our ability to grow revenue.

All prior periods have been revised to conform to the current period definition of an active client.

SaaS Revenue per Active Client

SaaS revenue per active client is calculated as SaaS revenue recognized during the period divided by the average number of active clients for the period. Since some of our new clients are added at initial pricing that is lower than our average pricing, our SaaS revenue per client could decline in the future.

Active Client Retention Rate

Active client retention rate is calculated based on the number of active clients at period end that were also active clients at the start of the period divided by the number of active clients at the start of the period. We believe that our ability to retain our active clients and expand their use of our solutions over time is a leading indicator of the stability of our revenue base and the long-term value of our client relationships.

Total Revenue per Employee

Revenue per employee is calculated as revenue recognized during the period divided by the average number of full-time employees for the period, excluding content moderators and employees attributable to the discontinued operations of PowerReviews. We believe revenue per employee is a leading indicator of our productivity and operating leverage. The growth of our business is dependent on our ability to hire the talented people we require to effectively capitalize on our market opportunity and scale with growth while maintaining a high level of client service.

Key Components of Our Condensed Consolidated Statements of Operations

Revenue

We generate revenue principally from fixed commitment subscription contracts under which we provide clients with various services, including access to our hosted software platforms. We sell these services under contractual agreements for service terms that are generally one year in length. Clients typically commit to fixed rate fees for the service term. Revenue from these agreements is recognized ratably over the period of service and any revenue that does not meet the revenue recognition criteria is recorded as deferred revenue on our balance sheet. We invoice clients on varying billing cycles, including annually, quarterly and monthly; therefore, our deferred revenue balance does not represent the total contract value of our non-cancelable subscription agreements. Fees payable under these agreements are due in full within 30 to 90 days of invoicing and non-refundable regardless of the actual use of the services and contain no general rights of return. No single client accounted for more than 10.0% of our revenue for the three and nine months ended January 31, 2015 and 2014.

To date our revenue growth has been driven by the sale of our core ratings and reviews solutions. We currently expect that our revenue growth rate during fiscal year 2016 will be lower than our recent growth rates. This is due to inconsistent sales performance, particularly in Europe, and an increase in competitive pressure that has led to intensified price-based competition, which could result in lower prices and margins.

Cost of Revenue

Cost of revenue consists primarily of personnel costs and related expenses associated with employees and contractors who provide our subscription services, our implementation team, our content moderation teams and other support services provided as part of the fixed commitment subscription contracts. Cost of revenue also includes professional fees, including third-party implementation support, travel-related expenses and an allocation of general overhead costs. We allocate general overhead expenses to all departments based on the number of employees in each department, which we consider to be a fair and representative means of allocation and, as

 

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such, general overhead expenses, including depreciation and facilities costs, are reflected in our cost of revenue. Personnel costs include salaries, benefits, bonuses and stock-based expense. We generally invest in increasing our capacity, particularly in the areas of implementation and support, ahead of the growth in revenue, which can result in lower margins in a given investment period.

Cost of revenue also includes hosting costs, the amortization of capitalized internal-use software development costs incurred in connection with our hosted software platforms and third-party service costs to support and retain our clients.

We intend to continue to invest additional resources in our client services teams and in the capacity of our hosting service infrastructure and, as we continue to invest in technology innovation through our research and development organization, we may also see an increase in the amortization expense associated with capitalized internal-use software development costs incurred in connection with enhancing our software architecture and adding new features and functionality to our platforms. The level and timing of investment in these areas could affect our cost of revenue, both in terms of absolute dollars and as a percentage of revenue in the future. In addition, increases in the volume of impressions could result in increased hosting costs which would impact our gross margin.

Operating Expenses

We classify our operating expenses into five categories: sales and marketing; research and development; general and administrative; acquisition-related and other; and amortization of acquired intangible assets. In each category, our operating expenses consist primarily of personnel costs, program expenses, professional fees, travel-related expenses and an allocation of our general overhead expenses, as applicable.

Sales and marketing . Sales and marketing expenses consist primarily of personnel costs for our sales, marketing and business development employees and executives, including salaries, benefits, stock-based expense, bonuses and commissions earned by our sales personnel. Sales and marketing also includes contingent consideration resulting from the acquisition of Longboard Media. Also included are non-personnel costs such as professional fees, an allocation of our general overhead expenses and the costs of our marketing and brand awareness programs. Our marketing programs include our Social Summits, regional user groups, corporate communications, public relations and other brand building and product marketing expenses. We expense sales commissions when a client contract is executed because we believe our obligation to pay a sales commission arises at that time. We plan to continue investing in sales and marketing by increasing the number of direct sales personnel, expanding our domestic and international sales and marketing activities, and focusing our marketing efforts on direct sales support and pipeline generation, which we believe will enable us to add new clients and increase penetration within our existing client base. We expect that in the foreseeable future, sales and marketing expenses may decrease as a percentage of revenue but will continue to be our largest operating cost.

Research and development . Research and development expenses consist primarily of personnel costs for our product development employees and executives, including salaries, benefits, stock-based expense and bonuses. Also included are non-personnel costs such as professional fees payable to third-party development resources and an allocation of our general overhead expenses. A substantial portion of our research and development efforts are focused on enhancing our software architecture and adding new features and functionality to our platforms to address social and business trends as they evolve, and we anticipate increasing this focus on innovation through technology. We are also incurring an increasing amount of expenses in connection with our efforts to leverage data that we and our clients collect and manage through the use of our solutions. We therefore expect that, in the future, research and development expenses will increase, as will the amount of development expenses capitalized in connection with our internal-use hosted software platforms.

General and administrative . General and administrative expenses consist primarily of personnel costs, including salaries, benefits, stock-based expense and bonuses for our administrative, legal, human resources, finance, accounting and information technology employees and executives. General and administrative expenses also include contingent consideration (included as compensation) and revaluation of contingent consideration related to the acquisition of Longboard Media. Also included are non-personnel costs, such as travel-related expenses, professional fees and other corporate expenses, along with an allocation of our general overhead expenses. We expect to incur incremental costs associated with supporting the growth of our business, both in terms of size and geographical diversity, and to meet the increased compliance requirements associated with being a public company. Those costs include increases in our accounting and legal personnel, additional consulting, legal, audit and tax fees, insurance costs, board of directors’ compensation and the costs of achieving and maintaining compliance with Section 404 of the Sarbanes-Oxley Act. As a result, we expect our general and administrative expenses to increase in absolute dollars in future periods but to decrease as a percentage of revenue over time.

Acquisition-related and other. Acquisition-related and other expenses consist of ongoing costs to comply with our obligations resulting from the divestiture of the PowerReviews business and costs incurred related to the acquisition of FeedMagnet. Legal and advisory expenses related to the divestiture of PowerReviews have been included as a component of “loss from discontinued operations, net of tax.” Included in “acquisition-related and other expenses” for all prior periods presented are legal and advisory fees for the U.S. Department of Justice suit related to our acquisition of PowerReviews.

 

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Amortization of acquired intangible assets. The amortization of acquired intangible assets represents amortization of acquired customer relationship intangible assets from FeedMagnet and Longboard Media. Due to the presentation of PowerReviews as discontinued operations, all intangible assets related to PowerReviews for periods prior to its divestiture are included in “assets held for sale” and the related amortization expenses of these intangible assets for prior reporting periods are included as a component of “loss from discontinued operations, net of tax.”

Other Expense, Net

Other expense consists primarily of interest income, interest expense related to our revolving line of credit, foreign exchange gains and losses and the resulting gain or loss from foreign exchange contracts. Interest income represents interest received on our cash and short-term investments Foreign exchange gains and losses arise from revaluations of foreign currency denominated monetary assets and liabilities and are partially offset by the change in market value of our foreign exchange contracts.

Income Tax Expense (Benefit)

As a result of our current net operating loss position in the United States, income tax expense consists primarily of corporate income taxes resulting from profits generated in foreign jurisdictions by wholly-owned subsidiaries, along with state income taxes payable in the United States. We expect our income tax expense to increase in the future if we become profitable both in the United States and in foreign jurisdictions.

 

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Results of Operations

The following tables set forth our results of operations for the specified periods. The period-to-period comparisons of results of operations are not necessarily indicative of results for future periods.

 

     Three Months Ended January 31,      Nine Months Ended January 31,  
     2015      2014      2015      2014  
     (in thousands)      (in thousands)  

Revenue

   $ 49,562       $ 43,600       $ 142,864       $ 125,067   

Cost of revenue (1)

     17,988         13,758         51,758         38,383   
  

 

 

    

 

 

    

 

 

    

 

 

 

Gross profit

  31,574      29,842      91,106      86,684   

Operating expenses:

Sales and marketing (1)

  18,020      20,765      57,946      62,598   

Research and development (1)

  8,779      9,036      27,815      27,753   

General and administrative (1)

  6,932      7,674      22,925      19,849   

Acquisition-related and other

  413      31      3,231      15,818   

Amortization of acquired intangible assets

  309      282      928      847   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total operating expenses

  34,453      37,788      112,845      126,865   
  

 

 

    

 

 

    

 

 

    

 

 

 

Operating loss

  (2,879   (7,946   (21,739   (40,181
  

 

 

    

 

 

    

 

 

    

 

 

 

Total other expense, net

  (920   (268   (2,006   (514
  

 

 

    

 

 

    

 

 

    

 

 

 

Loss from continuing operations before income taxes

  (3,799   (8,214   (23,745   (40,695

Income tax expense (benefit)

  324      179      594      (82
  

 

 

    

 

 

    

 

 

    

 

 

 

Net loss from continuing operations

$ (4,123 $ (8,393 $ (24,339 $ (40,613
  

 

 

    

 

 

    

 

 

    

 

 

 

Other Financial Data:

Adjusted EBITDA from continuing operations (2)

$ 1,962    $ (3,541 $ (5,113 $ (14,320
  

 

 

    

 

 

    

 

 

    

 

 

 

(1)       Includes stock-based expense as follows:

Cost of revenue

$ 451    $ 285    $ 1,223    $ 839   

Sales and marketing

  867      873      2,973      3,424   

Research and development

  685      603      1,854      2,070   

General and administrative

  1,097      1,457      3,515      4,159   

 

  (2)   We define Adjusted EBITDA from continuing operations (“Adjusted EBITDA”) as generally accepted accounting principles (“GAAP”) net loss from continuing operations adjusted for stock-based expense, contingent considerations related to acquisitions, adjusted depreciation and amortization (which excludes amortization of capitalized internal-use software development costs), integration and other costs related to acquisitions, other non-business costs and benefits, income tax expense and other (income) expense, net. Adjusted EBITDA is a financial measure that is not calculated in accordance with GAAP.

Adjusted EBITDA should not be considered as an alternative to net loss, operating loss or any other measure of financial performance calculated and presented in accordance with GAAP. Our Adjusted EBITDA may not be comparable to similarly titled measures of other organizations because other organizations may not calculate Adjusted EBITDA in the same manner. We prepare Adjusted EBITDA to eliminate the impact of items that we do not consider indicative of our core operating performance. You are encouraged to evaluate these adjustments and the reasons we consider them appropriate.

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

 

    Adjusted EBITDA is widely used by investors and securities analysts to measure a company’s operating performance without regard to items, such as stock-based expense, adjusted depreciation and amortization, acquisition costs, income tax expense and other income, net, that can vary substantially from company to company depending upon their financing, capital structures and the method by which assets were acquired;

 

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

 

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

 

    Our investor and analyst presentations include Adjusted EBITDA as a supplemental measure to evaluate our overall operating performance.

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

 

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

 

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

 

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

 

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

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

 

     Three Months Ended January 31,      Nine Months Ended January 31,  
     2015      2014      2015      2014  
     (in thousands)      (in thousands)  

GAAP net loss from continuing operations

   $ (4,123    $ (8,393    $ (24,339    $ (40,613

Stock-based expense

     3,100         3,218         9,565         10,492   

Contingent consideration related to acquisition (1)

     —           —           —           (3,860

Adjusted depreciation and amortization

     1,328         1,156         4,260         3,411   

Acquisition-related and other expense

     413         31         3,231         15,818   

Other stock-related benefit (2)

     —           —           (430      —     

Income tax expense (benefit)

     324         179         594         (82

Total other expense, net

     920         268         2,006         514   
  

 

 

    

 

 

    

 

 

    

 

 

 

Adjusted EBITDA from continuing operations

$ 1,962    $ (3,541 $ (5,113 $ (14,320
  

 

 

    

 

 

    

 

 

    

 

 

 

(1) Contingent consideration related to acquisition includes the following:

(a) Revaluation of contingent consideration

General and administrative

$ —      $ —      $ —      $ (3,270

(b) Contingent consideration included in compensation expense

General and administrative

  —        —        —        (295

Sales and marketing

  —        —        —        (295
  

 

 

    

 

 

    

 

 

    

 

 

 

Contingent consideration related to acquisition

$ —      $ —      $ —      $ (3,860
  

 

 

    

 

 

    

 

 

    

 

 

 

Revaluation of contingent consideration is the decrease in fair value of the liability-classified contingent consideration related to the acquisition of Longboard Media, Inc. Contingent consideration included in compensation expense relates to certain Longboard Media, Inc. employees whose right to receive such compensation is forfeited if they terminate their employment prior to the required service period. The contingent consideration was payable on Longboard Media’s achievement of certain performance goals for the period from January 1, 2013 to December 31, 2013. On October 31, 2013, the Company determined that the probability of the attainment of the underlying performance goals was remote and the resultant payout was estimated to be zero. As a result, the fair value of the liability-classified contingent consideration and the liability accrued for contingent consideration included in compensation expense were reduced to zero. On January 31, 2014, the Company concluded that the underlying performance goals were not met and the payout was zero. The Company excludes these items from its non-GAAP financial measures in order to facilitate the comparison of post-acquisition operating results.

 

  (2) Other stock-related expense represents an estimated liability for taxes and related items in connection with the Company’s treatment of certain stock option grants. Since the estimated liability directly relates to stock option grants and as stock-based expenses are consistently excluded from our non-GAAP financial measures, the Company excluded this estimated liability. During the nine months ended January 31, 2015, the Company recorded a benefit of $0.4 million due to a reduction of this estimated liability.

 

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The following table sets forth our results of operations for the specified periods as a percentage of revenue. The period-to-period comparisons of results are not necessarily indicative of results for future periods.

Consolidated Statements of Operations Data:

 

     Three Months Ended January 31,     Nine Months Ended January 31,  
     2015     2014     2015     2014  

Revenue

     100.0     100.0     100.0     100.0

Cost of revenue (1)

     36.3        31.6        36.2        30.7   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

  63.7      68.4      63.8      69.3   

Operating expenses:

Sales and marketing (1)

  36.4      47.6      40.6      50.1   

Research and development (1)

  17.7      20.7      19.5      22.2   

General and administrative (1)

  14.0      17.6      16.0      15.9   

Acquisition-related and other

  0.8      0.1      2.3      12.6   

Amortization of acquired intangible assets

  0.6      0.6      0.6      0.6   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

  69.5      86.6      79.0      101.4   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating loss

  (5.8   (18.2   (15.2   (32.1
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other expense, net

  (1.9   (0.6   (1.4   (0.4
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from continuing operations before income taxes

  (7.7   (18.8   (16.6   (32.5

Income tax expense (benefit)

  0.6      0.5      0.4      —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss from continuing operations

  (8.3 )%    (19.3 )%    (17.0 )%    (32.5 )% 
  

 

 

   

 

 

   

 

 

   

 

 

 

Other Financial Data:

Adjusted EBITDA from continuing operations (2)

  4.0   (8.1 )%    (3.6 )%    (11.4 )% 
  

 

 

   

 

 

   

 

 

   

 

 

 

(1) Includes stock-based expense as follows:

Cost of revenue

  0.9   0.7   0.9   0.7

Sales and marketing

  1.7      2.0      2.1      2.7   

Research and development

  1.4      1.4      1.3      1.7   

General and administrative

  2.2      3.3      2.5      3.3   

 

  (2)   We define Adjusted EBITDA from continuing operations as GAAP net loss from continuing operations adjusted for stock-based expense, contingent considerations related to acquisition, adjusted depreciation and amortization (which excludes amortization of capitalized internal-use software development costs), integration and other costs related to acquisitions, other non-business costs and benefits, income tax expense and other (income) expense, net. See Note (2)  to the Consolidated Statement of Operations Data on page 26 of this Quarterly Report on Form 10-Q for a reconciliation of net loss to Adjusted EBITDA from continuing operations.

Comparison of the Three Months Ended January 31, 2015 and 2014

Revenue

 

     Three Months Ended January 31,  
     2015      2014      % Change  
     (dollars in thousands)  

Revenue

   $ 49,562       $ 43,600         13.7
  

 

 

    

 

 

    

 

 

 

Our revenue increased $6.0 million, or 13.7%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. This increase is composed of a $5.8 million increase in SaaS revenue and a $0.2 million increase in Media revenue. Of the $5.8 million increase in SaaS revenue, $5.3 million was largely generated from new launches of active clients utilizing our platform and solutions since the prior year period. The remaining $0.5 million increase was generated from existing clients due to increased subscriptions of our products and offerings. For the three months ended January 31, 2015, net new active client additions were 57 and our active client retention rate was 96.4% compared to net new active client additions of 31 and active client retention rate of 95.8% for the three months ended January 31, 2014. Our client retention rates can be impacted due to a variety of reasons including, but not limited to, non-renewals and the cyclical and discretionary nature of marketing and advertising spending. SaaS revenue per active client (in thousands) was $36.1for the three months ended January 31, 2015, compared to SaaS revenue per active client (in thousands) of $40.8 for the three months ended January 31, 2014.

 

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Cost of Revenue and Gross Profit Percentage

 

     Three Months Ended January 31,  
     2015     2014     % Change  
     (dollars in thousands)  

Cost of revenue

   $ 17,988      $ 13,758        30.7

Gross profit

     31,574        29,842        5.8   

Gross profit percentage

     63.7     68.4  

Cost of revenue increased $4.2 million, or 30.7%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. This increase was primarily due to an increase of $2.3 million in personnel–related expenses as a result of increased headcount needed to support implementation of our new and existing product offerings along with the addition of new clients. Additional increases for the three months ended January 31, 2015 include $1.2 million in costs associated with hosting services due to an increase in the volume of impressions and $0.5 million in allocated overhead expenses. Our cost of revenue for the three months ended January 31, 2015 includes $0.2 million of amortization of developed technology acquired from FeedMagnet.

Operating Expenses

 

     Three Months Ended January 31,        
     2015     2014        
     Amount      % of
Revenue
    Amount      % of
Revenue
    %
Change
 
     (dollars in thousands)  

Sales and marketing

   $ 18,020         36.4   $ 20,765         47.6     (13.2 )% 

Research and development

     8,779         17.7        9,036         20.7        (2.8

General and administrative

     6,932         14.0        7,674         17.6        (9.7

Acquisition-related and other

     413         0.8        31         0.1        1,232.3   

Amortization of acquired intangible assets

     309         0.6        282         0.6        9.6   
  

 

 

      

 

 

      

Total operating expenses

$ 34,453      69.5 $ 37,788      86.6   (8.8 )% 
  

 

 

      

 

 

      

Sales and marketing . Sales and marketing expenses decreased by $2.7 million, or 13.2%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. For the three months ended January 31, 2015, personnel-related expenses decreased $0.9 million due to a decrease in headcount as we continue to leverage our more experienced sales force coupled with a decrease in corporate bonus expense. The decrease in headcount also resulted in a $0.6 decrease in travel expenses, a $0.3 million decrease in allocated overhead expenses and a $0.2 million decrease in facility-related expenses. Professional services decreased by $0.7 million due to decreased use of third-party contractor resources for the three months ended January 31, 2015.

Research and development . Research and development expenses decreased by $0.3 million, or 2.8%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. Personnel-related expenses decreased $0.4 million for the three months ended January 31, 2015 due to a decrease in corporate bonus expense and an increase in capitalization of internal-use software development costs. This decrease was partially offset by an increase of $0.1 million in professional services due to increased use of third-party contractor resources for the three months ended January 31, 2015.

General and administrative . General and administrative expenses decreased $0.7 million, or 9.7%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. A $1.0 million decrease in personnel-related expenses due to a decrease in corporate bonus expense was partially offset by a $0.3 million increase in bad debt and allocated overhead expenses for the three months ended January 31, 2014.

Acquisition-related and other. Acquisition-related and other expenses increased $0.4 million, or 1,232.3%, for the three months ended January 31, 2015 compared to the three months ended January 31, 2014. This increase was primarily due to the minimal amount of acquisition-related and other expenses realized in the three months ended January 31, 2014 since legal activities regarding the U.S. Department of Justice suit related to our acquisition of PowerReviews reduced significantly as we awaited the Court’s ruling which we received on January 8, 2014. We incurred $0.4 million of expenses for the three months ended January 31, 2015 primarily for legal and other advisory costs incurred to comply with our ongoing obligations from the divestiture of the PowerReviews business.

 

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Amortization of acquired intangibles. Amortization for acquired intangible assets stayed relatively constant at $0.3 million in the three months ended January 31, 2015 and 2014. Amortization of acquired intangible assets represents amortization of acquired customer relationship intangible assets from FeedMagnet and Longboard Media. Due to the presentation of PowerReviews as discontinued operations as of April 30, 2014, the related amortization expense of the PowerReviews intangible assets for the three months ended January 31, 2014 is included as a component of “loss from discontinued operations, net of tax.”

Other Expense, Net

 

     Three Months Ended January 31,  
     2015     2014        
     Amount     % of
Revenue
    Amount     % of
Revenue
    %
Change
 
     (dollars in thousands)  

Interest income

   $ 27        —     $ 24        —       12.5

Interest expense

     (536     (1.1     —          —       —     

Other expense

     (411     (0.8     (292     (0.6     40.8   
  

 

 

     

 

 

     

Total other expense, net

$ (920   (1.9 )%  $ (268   (0.6 )%    243.3
  

 

 

     

 

 

     

Total other expense, net, increased by $0.7 million for the three months ended January 31, 2015 compared to the three months ended January 31, 2014 primarily due to the inclusion of $0.5 million of interest expense on our revolving line of credit and an increase in other expense for the three months ended January 31, 2015 due to changes in realized and unrealized losses on transactions in foreign currencies.

Income Tax Expense

 

     Three Months Ended January 31,  
     2015     2014        
     Amount      % of
Revenue
    Amount      % of
Revenue
    %
Change
 
     (dollars in thousands)  

Income tax expense

   $  324         0.6   $ 179         0.5     81.0

Income tax expense increased by $0.1 million in the three months ended January 31, 2015 compared to the three months ended January 31, 2014 due to an increase in estimated foreign and state income tax expenses.

Comparison of the Nine Months Ended January 31, 2015 and 2014

Revenue

 

     Nine Months Ended January 31,  
     2015    2014      % Change  
     (dollars in thousands)  

Revenue

   $142,864    $ 125,067         14.2
  

 

  

 

 

    

 

 

 

Our revenue increased by $17.8 million, or 14.2%, for the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014. Included in this increase was an increase in SaaS revenue of $16.6 million and an increase in Media revenue of $1.2 million. Of the $16.6 million increase in SaaS revenue, $13.8 million was largely generated from new launches of active clients utilizing our platform and solutions since the prior year period. The remaining $2.8 million increase was generated from existing clients due to increased subscriptions of our products and offerings and a one-time termination fee from an existing client. For the nine months ended January 31, 2015, net new active client additions were 182 and our active client retention rate was 85.9% compared to net new active client additions of 126 and active client retention rate of 89.7% for the nine months ended January 31, 2014. For the nine months ended January 31, 2015, our client retention rate was lower as we reduced our client count by 23 clients which represents an adjustment to previous fiscal quarters due to Connections-only clients who converted to a “Freemium” model and clients from the Shopzilla asset purchase which were a part of the PowerReviews divestiture. Further, the reduction in the client count also included certain clients from our FeedMagnet acquisition whose contracts expired. The annual subscription fees for these clients were not significant. Our client retention rates can be impacted due to a variety of reasons including, but not limited to,

 

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non-renewals and the cyclical and discretionary nature of marketing and advertising spending. SaaS revenue per active client (in thousands) was $111.1 for the nine months ended January 31, 2015 compared to SaaS revenue per active client (in thousands) of $126.0 for the nine months ended January 31, 2014.

Cost of Revenue and Gross Profit Percentage

 

     Nine Months Ended January 31,  
     2015     2014     % Change  
     (dollars in thousands)  

Cost of revenue

   $ 51,758      $ 38,383        34.8

Gross profit

     91,106        86,684        5.1   

Gross profit percentage

     63.8     69.3  

Cost of revenue increased $13.4 million, or 34.8%, for the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014. This increase was primarily due to an increase of $6.1 million in personnel-related expenses as a result of increased headcount needed to support implementation of our new and existing product offerings as well as the addition of new clients. Additional increases for the nine months ended January 31, 2015 include $4.3 million in costs associated with hosting services due to an increase in the volume of impressions, $0.5 million in professional fees due to increased use of third-party contractor resources and $2.0 million in travel and allocated overhead expenses. Our cost of revenue for the nine months ended January 31, 2015 includes $0.5 million of amortization of developed technology acquired from FeedMagnet.

Operating Expenses

 

     Nine Months Ended January 31,  
     2015     2014        
     Amount      % of
Revenue
    Amount      % of
Revenue
    %
Change
 
     (dollars in thousands)  

Sales and marketing

   $ 57,946         40.6   $ 62,598         50.1     (7.4 )% 

Research and development

     27,815         19.5        27,753         22.2        0.2   

General and administrative

     22,925         16.0        19,849         15.9        15.5   

Acquisition-related and other

     3,231         2.3        15,818         12.6        (79.6

Amortization of acquired intangible assets

     928         0.6        847         0.6        9.6   
  

 

 

      

 

 

      

Total operating expenses

$ 112,845      79.0 $ 126,865      101.4   (11.1 )% 
  

 

 

      

 

 

      

Sales and marketing . Sales and marketing expenses decreased by $4.7 million, or 7.4%, for the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014. For the nine months ended January 31, 2015, personnel-related expenses decreased by $3.1 million due to a decrease in headcount as we continue to leverage our more experienced sales force coupled with a decrease in corporate bonus expense. The decrease in headcount also resulted in a $0.5 million decrease in travel expenses and a $0.2 million decrease in allocated overhead expenses. Professional services decreased by $1.9 million due to decreased use of third-party contractor resources. These decreases were offset by a $0.7 million increase in marketing expenses as we hosted our annual marketing event “Bazaarvoice Summit” for current and prospective clients during the nine months ended January 31, 2015. The Company hosted the last “Bazaarvoice Summit” in March 2013. A benefit of $0.3 million was realized during the nine months ended January 31, 2014 due to the decrease in fair value of the liability for contingent consideration related to the acquisition of Longboard media as the payout was determined to be zero as of January 31, 2014.

Research and development . Research and development expenses stayed relatively constant at $27.8 million for the nine months ended January 31, 2015. A decrease of $1.2 million in personnel-related expenses due to a decrease in headcount and a decrease in corporate bonus expense was offset by an increase of $0.7 million due to increased use of third-party contractor resources and a $0.5 million increase in allocated overhead expenses and facilities-related expenses for the three months ended January 31, 2015.

General and administrative . General and administrative expenses increased $3.1 million, or 15.5%, for the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014. The increase was primarily due to personnel-related expenses

 

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which includes a benefit of $3.6 million realized during the nine months ended January 31, 2014 from the decrease in fair value of the liability for contingent consideration related to the acquisition of Longboard Media as the payout was estimated to be zero as of January 31, 2014. This prior year benefit was partially offset by a benefit of $0.4 million realized for the nine months ended January 31, 2015 representing a reduction in our estimated liability recorded in fiscal year 2013 in connection with our treatment of certain stock option grants. The $0.8 million increase in bad debt expense was offset by a $0.9 million decrease in professional services.

Acquisition-related and other. Acquisition-related and other expenses decreased $12.6 million, or 79.6%, for the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014. This decrease was primarily the result of higher expenses in the nine months ending January 31, 2014 due to the U.S Department of Justice suit related to our acquisition of PowerReviews and the subsequent divestiture of PowerReviews in the nine months ending January 31, 2015. We incurred $3.2 million for the nine months ended January 31, 2015 primarily for the legal and other advisory costs incurred to comply with our ongoing obligations from the divestiture of the PowerReviews business and the shareholder derivative action filed in connection with the acquisition of PowerReviews.

Amortization of acquired intangibles. The amortization of acquired intangible assets represents amortization of acquired customer relationship intangible assets from FeedMagnet and Longboard Media. Due to the presentation of PowerReviews as discontinued operations as of April 30, 2014, the related amortization expense of the PowerReviews intangible assets for the nine months ended January 31, 2014 is now included as a component of “loss from discontinued operations, net of tax.” Amortization from continuing operations is presented separately in the statement of operations and was $0.9 million for the nine months ended January 31, 2015 and $0.8 million for the nine months ended January 31, 2014. The $0.1 million increase in amortization expense for the nine months ended January 31, 2015 was due to the amortization of FeedMagnet customer relationships which was acquired on April 15, 2014.

Other Expense, Net

 

     Nine Months Ended January 31,  
     2015     2014        
     Amount      % of
Revenue
    Amount      % of
Revenue
    %
Change
 
     (dollars in thousands)  

Interest income

   $ 43         —     $ 136         0.1     (68.4 )% 

Interest expense

     (1,018      (0.7     (32      —          3,081.3

Other expense

     (1,031      (0.7     (618      (0.5     66.8   
  

 

 

      

 

 

      

Total other expense, net

$ (2,006   (1.4 )%  $ (514   (0.4 )%    290.3
  

 

 

      

 

 

      

Total other expense, net, increased by $1.5 million in the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014 due to the inclusion of $1.0 million of interest expense on our revolving line of credit for the nine months ended January 31, 2015, an increase of $0.4 million in other expense due to realized gains and losses on transactions in foreign currencies and a decrease of $0.1 million in interest income.

Income Tax Expense (Benefit)

 

     Nine Months Ended January 31,  
     2015     2014        
     Amount      % of
Revenue
    Amount      % of
Revenue
    %
Change
 
     (dollars in thousands)  

Income tax expense (benefit)

   $ 594         0.4   $ (82      —       824.4

Income tax expense increased by $0.7 million in the nine months ended January 31, 2015 compared to the nine months ended January 31, 2014 due to an estimated increase in foreign and state taxes payable. Further, the nine months ended January 31, 2014 included a benefit of $0.4 million from the 2013 Texas state research and development tax credit, which was enacted in the first quarter of fiscal year 2014.

 

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Liquidity and Capital Resources

Our principal source of liquidity at January 31, 2015 consisted of $104.8 million of cash and cash equivalents and short term investments. Cash and cash equivalents consist of cash, money market funds, commercial paper, corporate bonds and certificates of deposit. Our short-term investments consist of certificates of deposit, municipal bonds, commercial paper, U.S. Treasury notes and bonds that are a guaranteed obligation of the U.S. Government, corporate notes and corporate bonds. As of January 31, 2015, the amount of cash and cash equivalents held by foreign subsidiaries was $4.4 million. If these funds are needed for our domestic operations, we would be required to accrue and pay U.S. taxes to repatriate these funds. 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.

On February 21, 2014, we drew down $27.0 million of the unused balance of the revolving line of credit. The funds were largely used for general corporate purposes and for the acquisition of FeedMagnet in fiscal year 2014. On July 2, 2014, we completed the sale of PowerReviews for total consideration of $30.0 million and received $25.5 million in cash. On November 21, 2014, we entered into a $70.0 million secured revolving credit facility pursuant to an Amended and Restated Credit Facility (the “Credit Facility”) dated as of November 21, 2014. The Credit Facility amended and restated the Company’s prior $30.0 million secured revolving credit facility. On November 21, 2014, we drew down $57.0 million of the unused balance of the Credit Facility, of which, $27.0 million was used to repay the amount drawn down in February 2014. Our principal needs for liquidity include funding our operating losses, working capital requirements, capital expenditures, repaying our outstanding revolving line of credit and acquisitions. We believe that our available resources are sufficient to fund our liquidity requirements for at least the next 12 months.

Further, we anticipate making significant investments in growth and initiatives designed to improve our operating efficiency for the foreseeable future, which may impact our ability to generate positive cash flow from operating activities in the near-term. Our future capital requirements will depend on many factors, including our rate of client and revenue growth, the expansion of our sales and marketing activities, capital expenditures for our new Austin facilities, the timing and extent of spending to support product development efforts, the timing of introductions of new features and enhancements to our social commerce platforms and future acquisitions of, or investments in, complementary businesses and technologies. The timing, frequency, and pattern of our billing mix can also impact our operating cash flows. To the extent that existing cash, cash equivalents and short-term investments along with future cash flow from operations are insufficient to fund our future activities, we may need to raise additional funds through public or private equity or debt financing. Additional funds may not be available on terms favorable to us or at all.

We typically invoice our new and existing SAAS business clients for our subscription services in a varying mix of frequencies such as; monthly, quarterly, semiannual and annual billings. Bookings and therefore billings for our SaaS business are typically higher in the second half of our fiscal year while billings for our media business increase significantly during the holiday season. These factors result in an increase in our accounts receivable. Similarly, increases in new client launches lead to increased billings, which in turn also increases our accounts receivable. The operating cash flow benefit of increased billing activity generally occurs in the subsequent quarters when we collect from our clients.

An increase in accounts receivable due to the factors described above also causes an increase in days sales outstanding (“DSO”), which is calculated by dividing period end accounts receivable by average daily sales for the fiscal quarter. DSO was 103 days for the three months ended January 31, 2015 compared to 90 days for the three months ended January 31, 2014.

Our DSO fluctuates from period to period and year over year, primarily due to the seasonal nature of our new bookings and related renewals, the seasonal nature of our media business and the frequency of our customer billings which vary throughout the fiscal year. These trends result in changes in accounts receivable balances that are different than our revenue growth trends. Although period end accounts receivable fluctuates because of these factors, the average daily sales for the period do not because we recognize revenue ratably over the terms of our customer contracts. Accordingly, our average daily sales are not influenced by factors such as seasonality, billing frequency and billing timing.

 

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The following table summarizes our cash flows for the periods indicated (including cash flows from discontinued operations):

 

     Nine Months Ended January 31,  
     2015      2014  
     (in thousands)  

Net cash used in operating activities

   $ (19,032    $ (40,562

Net cash provided by (used in) investing activities

     (1,607      32,815   

Net cash provided by financing activities

     35,511         11,135   

Net Cash Used in Operating Activities

Net cash used in operating activities is primarily influenced by the amount of cash we invest in personnel and infrastructure to support the anticipated growth of our business, the increase in the number of clients using our platforms and the amount and timing of client payments.

For the nine months ended January 31, 2015, operating activities used $19.0 million of cash after changes in our operating assets and liabilities, offsetting a net loss of $25.6 million. A decrease of $13.9 million in our net loss during the nine months ending January 31, 2015, which had the impact of improving cash flows from operating activities, was primarily due to the $12.6 million decrease in our acquisition-related and other expenses which was the result of higher expenses in the nine months ending January 31, 2014 attributable to the U.S. Department of Justice suit related to our acquisition of PowerReviews and the subsequent divestiture of PowerReviews in the nine months ending January 31, 2015. The net loss includes non-cash depreciation and amortization of $9.2 million, non-cash loss on disposal of discontinued operations, net of tax, of $1.5 million, non-cash stock-based expense of $9.7 million and non-cash bad debt and other non-cash expenses of $2.3 million. Accounts receivable, prepaid expenses and other current assets and other non-current assets increased $20.5 million. The $18.8 million increase in accounts receivables was primarily due to the increase in billings for our media business on account of the holiday season and the increase in our SaaS customer billings driven by a higher mix of annual billings. A decrease of $3.3 million in accrued expenses and other current liabilities and other long-term liabilities was offset by a $7.7 million increase in accounts payable and deferred revenue; resulting in a net decrease of $16.1 million due to changes in operating assets and liabilities.

For the nine months ended January 31, 2014, operating activities used $40.6 million of cash after changes in our operating assets and liabilities partially offset a net loss of $39.5 million. Changes in our operating assets and liabilities included non-cash depreciation and amortization of $11.2 million, non-cash stock-based expense of $11.0 million, a non-cash benefit related to the revaluation of contingent consideration of $3.3 million, and non-cash bad debt and other non-cash expenses of $1.5 million. Accounts receivable increased by $15.8 million primarily due to the increase in billings for our media business on account of the holiday season and the increase in our SaaS customer billings. Prepaid expenses and other current assets and other non-current assets also increased by $1.9 million. Accrued expenses and other current liabilities, deferred revenue and other liabilities decreased $4.3 million partially offset by a $0.5 million increase in accounts payable; resulting in a net decrease of $21.5 million in operating assets and liabilities.

Net Cash Provided by (Used in) Investing Activities

Our primary investing activities have consisted of acquisitions, purchases of short-term investments and property and equipment, including technology hardware and software to support our growth as well as costs capitalized in connection with the development of our internal-use hosted software platform. Purchases of property and equipment may vary from period to period due to the timing of the expansion of our operations and the development cycles of our internal-use hosted software platform. We expect to continue to invest in short-term investments, property and equipment and developing our software platform for the foreseeable future.

For the nine months ended January 31, 2015, investing activities used $1.6 million which included proceeds of $25.5 million from the sale of the PowerReviews business and a $0.5 million decrease in restricted cash offset by $18.3 million of purchases of short term investments, net sales and maturities of short term investments and $9.3 million in purchases of property, equipment and capitalized internal-use software development costs.

For the nine months ended January 31, 2014, investing activities provided $32.8 million, including $42.0 million of proceeds from the maturities and sales of short term investments, net of purchases of short term investments, offset by $8.5 million in purchases of property, equipment and capitalized internal-use software development costs and a $0.7 million purchase of an intangible asset.

Net Cash Provided by Financing Activities

Our financing activities have consisted primarily of borrowings under our line of credit, net proceeds from the issuance of common stock and proceeds from the exercises of options to purchase common stock.

For the nine months ended January 31, 2015, financing activities provided $35.5 million primarily due to net proceeds from our revolving line of credit of $30.0 million, partially offset by the $0.7 million deferred financing costs. We also had proceeds of $4.3 million from the exercise of options to purchase our common stock and contributions of $1.9 million to our Employee Stock Purchase Plan.

 

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For the nine months ended January 31, 2014, financing activities provided $11.1 million, primarily due to proceeds from the exercise of options to purchase our common stock and contributions to our Employee Stock Purchase Plan.

Purchases of property and equipment may vary from period to period due to the timing of the expansion of our operations and the development cycles of our internal-use hosted software platforms. We expect to continue to invest in short-term investments, property and equipment and developing our software platforms for the foreseeable future.

Contractual Obligations and Commitments

Other than as set forth below, there have been no material changes to the contractual obligations table included in our Annual Report on Form 10-K for the year ended April 30, 2014, filed with the SEC on June 26, 2014.

On November 13, 2014, we entered into a new lease (the “Lease”), pursuant to which we will lease approximately 137,615 square feet of office space in Austin, Texas. This will serve as the new headquarters of the Company and will be used for general office purposes. The term of the Lease commences on January 1, 2016 unless otherwise modified and terminates approximately ten years and six months thereafter. The expected lease payments for the original term are estimated to be approximately $0.3 million for fiscal year ended April 30, 2016, $3.8 million for fiscal year ended April 30, 2017, $3.8 million for fiscal year ended April 30, 2018, $3.9 million for fiscal year ended April 30, 2019, $4.0 million for the fiscal year ended April 30, 2020 and $25.9 million for the fiscal years ended April 30 th thereafter.

We do not have any material capital lease obligations and all of our property, equipment and software has been purchased with cash. We have no material purchase obligations outstanding with any vendors or third-parties.

On November 21, 2014, we entered into an Amended and Restated Credit Facility (the “Credit Facility”) with Comerica Bank which provides for a secured, revolving line of credit of up to $70.0 million, with a sublimit of $3.0 million for the incurrence of swingline loans and a sublimit of $15.0 million for the issuance of letters of credit. The Credit Facility amended and restated the Loan Agreement and all letters of credits under the Loan Agreement were transferred to the Credit Facility. Borrowings under the Credit Facility are collateralized by substantially all of our assets. The revolving line of credit bears interest at the adjusted LIBOR rate plus 3.5%. On November 21, 2014, we drew down $57.0 million of the unused balance of the Credit Facility, of which, $27.0 million was used to repay the outstanding balance on the Loan Agreement. On December 4, 2014, we drew down $8.0 million in the form of a letter of credit as a security deposit for the lease of our new headquarters. In January 2015, we transferred a $1.0 Pledge and Security Agreement to be included as a form of a letter of credit under the Credit Facility, resulting in an unused balance of $2.1 million as of January 31, 2015. The Credit Facility expires on November 21, 2017 with all advances immediately due and payable. We were not compliant with a non-financial covenant as of January 31, 2015; however, we have obtained a waiver from Comerica Bank (See Note 12 iii). We were in compliance with all financial covenants contained in the Credit Facility as of January 31, 2015.

Off-Balance Sheet Arrangements

We do not have any off-balance sheet arrangements that have or are reasonably likely to have a material current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

Critical Accounting Policies and the Use of Estimates

Preparation of our condensed consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. We believe the most complex and sensitive judgments, because of their significance to the condensed consolidated financial statements included in this Quarterly Report on Form 10-Q, result primarily from the need to make estimates about the effects of matters that are inherently uncertain. Management’s Discussion and Analysis and Note 2 to the consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended April 30, 2014, filed on June 26, 2014 describe the significant accounting estimates and policies used in the preparation of our condensed consolidated financial statements. Actual results in these areas could differ from management’s estimates. During the nine months ended January 31, 2015, there were no significant changes in our critical accounting policies or estimates from those reported in our Annual Report on Form 10-K for the fiscal year ended April 30, 2014, filed on June 26, 2014.

 

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Item 3. Quantitative and Qualitative Disclosures About Market Risk

We have operations both within the United States and internationally and we are exposed to market risks in the ordinary course of our business, including the effect of interest rate changes and foreign currency fluctuations. Information relating to quantitative and qualitative disclosures about these market risks is set forth below.

Interest Rate Sensitivity

We hold cash, cash equivalents and short-term investments for working capital purposes. We do not have material exposure to market risk with respect to these investments. We do not use derivative financial instruments for speculative or trading purposes; however, we may adopt specific hedging strategies in the future. Any declines in interest rates will reduce future interest income.

Foreign Currency Risk

Our results of operations and cash flows are subject to fluctuations because of changes in foreign currency exchange rates, particularly changes in exchange rates between the U.S. dollar and the Euro and British Pound, the currencies of countries where we currently have our most significant international operations. On a historical basis, invoicing has largely been denominated in U.S. dollars; however; we expect an increasing proportion of our future business to be conducted in currencies other than U.S. dollars. Our expenses are generally denominated in the currencies of the countries in which our operations are located, with our most significant operations at present located in the United States, the United Kingdom, Germany, France, Australia and Sweden.

We assess the market risk of changes in foreign currency exchange rates utilizing a sensitivity analysis that measures the potential impact on earnings, fair values and cash flows of a hypothetical 10% change in the value of the U.S. dollar on foreign currency denominated monetary assets and liabilities. The effect of an immediate 10% adverse change in exchange rates on foreign currency denominated monetary assets and liabilities, principally accounts receivable and intercompany balances, as of January 31, 2015, would be immaterial.

We have entered into forward exchange contracts to partially hedge our exposure to these foreign currencies. We do not enter into any derivative financial instruments for trading or speculative purposes. We may enter into additional forward exchange contracts to further contain our exposure to foreign currencies fluctuations. To date, we have hedged against some of the fluctuations in currency exchange rates, however fluctuations in exchange rates could still cause harm to our business in the future.

Inflation Risk

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

 

Item 4. Controls and Procedures

Evaluation of Disclosure Controls and Procedures

Our management is responsible for establishing and maintaining adequate disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act). Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our disclosure controls and procedures as of January 31, 2015. The term “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives, and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Based on management’s evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of January 31, 2015.

 

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Changes in Internal Control Over Financial Reporting

There was no change in our internal control over financial reporting identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the three months ended January 31, 2015 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

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PART II – OTHER INFORMATION

 

Item 1. Legal Proceedings

For a description of our legal proceedings, see Note 11, Commitments and Contingencies, to the Notes to Unaudited Condensed Consolidated Financial Statements of this Quarterly Report on Form 10-Q.

 

Item 1A. Risk Factors

Our management team may not be able to execute our business plan. Changes to our management team may cause uncertainty regarding the future of our business and may adversely impact employee hiring and retention, our stock price, and our revenue, operating results, and financial condition.

Our management team has worked together at the Company for only a limited period of time and has a limited track record of executing our business plan as a team. In addition, we have recently filled a number of positions in our senior management. Accordingly, certain key personnel have only recently assumed the duties and responsibilities they are now performing, and it is difficult to predict whether our management team, individually and collectively, will be effective in operating our business. These changes may cause speculation and uncertainty regarding our future business strategy and direction and may cause or result in:

 

    disruption of our business or distraction of our employees and management;

 

    difficulty in recruiting, hiring, motivating and retaining talented and skilled personnel;

 

    stock price volatility; and

 

    difficulty in negotiating, maintaining or consummating business or strategic relationships or transactions.

If we are unable to mitigate these or other potential risks, our revenue, operating results and financial condition may be adversely impacted.

Our quarterly financial results are subject to fluctuations; as a result, we could fail to meet or exceed expectations of analysts or investors, which could cause our stock price to decline.

Our revenue, expenses, operating results and cash flows have fluctuated from quarter to quarter in the past and are likely to continue to do so in the future. These fluctuations are due to, or may in the future result from, many factors, some of which are outside of our control, including:

 

    our ability to sell additional solutions, including our media solutions, to existing clients and to add new clients, in multiple regions around the world, particularly in the United States and Europe, which has fluctuated and is likely to continue to fluctuate, due to the effectiveness of our sales execution, general economic conditions, increased competition, the timing of larger sales opportunities and other factors affecting our sales in each of these regions;

 

    the timing and success of new solutions, product and service offerings and pricing policies by us or our competitors or any other changes in the competitive dynamics of our industry;

 

    the amount, timing and effectiveness of our product development investments and related expenses and delays in generating revenue from these new solutions;

 

    our ability to adjust our cost structure, particularly our personnel costs, in response to reductions in revenue;

 

    our failure to achieve the growth rate that was anticipated by us in setting our operating and capital expense budgets;

 

    the timing differences between when we incur sales commissions, implementation costs and other client acquisition costs associated with new solutions sales and when we generate revenue from these sales, particularly related to larger sales to new or existing clients;

 

    our ability, and the ability of our clients, to timely and effectively implement our solutions;

 

    increases in our hosting costs, which could result in advance payments to our hosting vendors, due to variations in demand for storage capacity and computing consumption without a corresponding increase in pricing to our existing clients;

 

    the timing, frequency and pattern of our billing mix;

 

    the cyclical and discretionary nature of marketing and advertising spending, especially spending on social commerce solutions and targeted social commerce campaigns;

 

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    seasonal variations and unpredictability in our clients’ advertising budgets;

 

    the amount and timing of operating expenses and capital expenditures related to the expansion of our operations and infrastructure and client acquisition;

 

    changes in our active client retention rates;

 

    the timing of expenses related to the development or acquisition of technologies or businesses and potential future charges for impairment of goodwill or intangible assets from acquired companies;

 

    unforeseen litigation costs and related settlement costs, particularly those related to intellectual property infringement and our obligation to fulfill related client indemnification obligations and regulatory investigations or restructuring activities, including settlement costs and regulatory penalties assessed related to government enforcement actions;

 

    our ability to accurately estimate state and local sales tax obligations and to collect such actual amounts from our clients;

 

    our ability to accurately estimate payroll and related taxes for wages and equity transactions;

 

    our ability to accurately estimate bonus and other incentive payments to key employees based on performance and market conditions;

 

    changes in tax rules or impact of new accounting pronouncements;

 

    changes in currency exchange rates and associated costs of hedging to manage foreign currency fluctuations;

 

    the timing of stock awards to employees and related adverse financial impact of having to expense those stock awards over their vesting schedule; and

 

    the adoption of new laws or regulations, or interpretations of existing laws or regulations, that restrict, or increase the costs of, providing social commerce solutions or using the Internet as a medium for communications and commerce.

We offer our social commerce solutions primarily through subscription agreements and generally recognize revenue ratably over the related subscription period, while revenue from our media services is generally recognized in the month services are provided. As a result of both types of arrangements, revenue attributable to a contract signed in a particular quarter will not be fully and immediately recognized in the quarter in which the contract is signed. Because we incur most costs associated with generating client contracts at the time of sale, we may not recognize revenue in the same period in which we incur the related costs of sale. Timing differences of this nature could cause our margins and our operating income or losses to fluctuate significantly from quarter to quarter, and such fluctuations may be more pronounced in quarters in which we experience a change in the mix of new clients as a percentage of total clients.

Typically, a significant percentage of our bookings occur in the last few weeks of a quarter. Accordingly, a market disruption or other event outside of our control that occurred toward the end of a quarter could have a disproportionate impact on us and could cause us to substantially miss our forecasted results for that quarter.

Fluctuations in our quarterly operating results may lead analysts to change their long-term model for valuing our common stock, cause us to face short-term liquidity issues, impact our ability to retain or attract key personnel or cause other unanticipated issues, all of which could cause our stock price to decline. As a result of the potential variations in our quarterly revenue and operating results, we believe that quarter-to-quarter comparisons of our revenue and operating results may not be meaningful, and the results of any one quarter should not be relied upon as an indication of future performance.

Our actual results may differ significantly from any guidance that we may issue in the future and the consensus expectations of research analysts.

From time to time, we may release earnings guidance or other forward-looking statements in our earnings releases, earnings conference calls or otherwise regarding our future performance that represent our management’s estimates as of the date of release. If given, this guidance will be based on forecasts prepared by our management. The principal reason that we may release guidance is to provide a basis for our management to discuss our business outlook with analysts and investors. Guidance is necessarily speculative in nature. The speculative nature of any guidance is further exacerbated by the rapidly evolving nature and uncertain size of the market for social commerce solutions, as well as the unpredictability of future general economic and financial conditions. As a result, some or all of the assumptions of any future guidance that we furnish may not materialize or may vary significantly from actual future results. Any failure to meet guidance or analysts’ expectations could have a material adverse effect on the trading price or volume of our stock.

 

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

We have incurred significant losses in each fiscal period since our inception in 2005. We experienced net losses of $52.8 million and $47.5 million from continuing operations during fiscal years 2014 and 2013, respectively. As of January 31, 2015, we had an accumulated deficit of $217.7 million which also includes losses from discontinued operations. The losses and accumulated deficit were due to the substantial investments we made to grow our business and acquire clients. Expenses associated with the integration of the clients, employees and operations of acquired companies into our business could further delay our profitability. We anticipate that our operating expenses will increase substantially in the foreseeable future as we continue to invest to grow our business and acquire clients, develop our platforms and develop new products and solutions. These efforts may prove more expensive and more difficult than we currently anticipate, and we may not succeed in increasing our revenue sufficiently to offset these higher expenses. Many of our efforts to generate revenue from our business are new and unproven, and any failure to increase our revenue or generate revenue from new products and solutions could prevent us from attaining or increasing profitability. Furthermore, to the extent we are successful in increasing our client base, we could also incur increased losses because costs associated with entering into client agreements are generally incurred up front, while revenue is generally recognized ratably over the term of the agreement. Additionally, we currently sell our products on a fixed price basis. However, many of the third-party costs associated with providing our products are subject to variable pricing. We cannot be certain that we will be able to attain or increase profitability on a client-by-client basis or on a quarterly or annual basis. If we are unable to effectively manage these risks and difficulties as we encounter them, our business, financial condition and results of operations may suffer.

We have a limited operating history, which makes it difficult to evaluate our current business and future prospects and may increase the risk of your investment.

We began our operations in May 2005. Our limited operating history may make it difficult to evaluate our current business and our future prospects. We have encountered and will continue to encounter risks and difficulties frequently experienced by growing companies in rapidly developing and changing industries, including challenges in forecasting accuracy, determining appropriate investments of our limited resources, market acceptance of our existing and future solutions, managing client implementations and developing new solutions. Our current operating model may require changes in order for us to achieve profitability and scale our operations efficiently. For example, we may need to continue to enhance our software architecture to allow us to efficiently and cost effectively develop and implement new solutions, make our solutions easy to implement, ensure our marketing engine is designed to drive highly qualified leads cost effectively and implement changes in our sales model to improve the predictability of our sales and reduce our sales cycle. If we fail to implement these changes on a timely basis or are unable to implement them due to factors beyond our control, our business may suffer. You should consider our business and prospects in light of the risks and difficulties we face as a company in a rapidly developing and changing industry.

Our business depends substantially on renewing agreements with existing clients and selling additional solutions to them. If our clients, especially our larger clients, do not renew their agreements, renew on less favorable terms or fail to purchase additional solutions, our revenue may decline and our operating results would likely be harmed.

In order for us to improve our operating results, it is important that our clients renew their agreements with us when the initial term expires and also purchase additional solutions from us. We offer most of our social commerce solutions primarily through subscription agreements and generally recognize revenue ratably over the related subscription period. Our clients have no renewal obligation after their initial term expires, and we cannot assure you that we will be able to renew agreements with our clients at the same or higher contract value or at all. Moreover, under specific circumstances, our clients may have the right to cancel their agreements with us before they expire, for example, in the event of an uncured breach by us, or our clients may seek to renegotiate the terms of their contract prior to its expiration. Additionally, pursuant to the terms contained in the Joint Stipulation with the DOJ, we have agreed that during the period beginning on the date we completed the sale of PowerReviews (July 2, 2014) and ending on the later of one year and the termination date of a client’s contract, we will allow existing Bazaarvoice clients as of July 2, 2014 to terminate their contract with us should they choose to use the ratings and reviews solution offered by PowerReviews. Similarly, our contracts with our media clients and covering certain of our social commerce solutions generally do not include long-term obligations requiring them to purchase our services and are often cancelable upon short or no notice and without penalty. Any decline in our client renewals or expansions would likely harm our future operating results, especially if we are unable to recognize sufficient revenue to offset related client acquisition costs prior to such termination or cancellation of our client agreements. If our clients, especially our larger clients, cancel their agreements, negotiate price concessions in their current agreements, do not renew their agreements, renew on less favorable terms to us or fail to purchase additional solutions, our revenue may decline, our ability to grow our revenue in the future could be adversely impacted and our operating results would likely be harmed.

Our active client retention rates may decline in the future due to a variety of factors, including:

 

    the availability, price, performance and functionality of our solutions and competing products and services;

 

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    our ability to demonstrate to clients the value of our solutions, particularly if we are unable to introduce planned solutions innovation;

 

    poor performance or discontinuation of our clients’ brands;

 

    changes in our clients’ marketing or advertising strategies which can be cyclical, reflecting overall economic conditions as well as budgeting and discretionary buying patterns;

 

    the timing and quality of ratings and reviews posted to our clients’ websites and the existence of negative reviews;

 

    changes in key personnel at our clients;

 

    reductions in our clients’ spending levels;

 

    consolidation in our client base;

 

    the development by our clients of internal solutions for their social commerce needs; and

 

    the effects of economic downturns and global economic conditions.

We incur most of our client acquisition costs at the time of sale. Depending upon the scope of the client’s needs, these costs can be significant. In certain cases, clients may have the right to terminate or cancel agreements with us if we fail to maintain service level requirements or we are otherwise in breach under the client agreements. If a client does not renew or cancels its agreement with us or we are otherwise required to provide price concessions to retain the client, we may not recognize sufficient revenue from that client prior to the termination or cancellation to offset the acquisition costs associated with that client. If the cost to acquire clients is greater than the revenue we generate over time from those clients, our business and operating results may be harmed.

In addition, our costs associated with maintaining and increasing revenue from existing clients may be lower than costs associated with generating revenue from new clients. Therefore, the loss of recurring revenue or a reduction in the rate of revenue increase from our existing clients, even if offset by an increase in revenue from new clients, could have a material adverse effect on our operating results.

If we cannot efficiently implement our solutions for clients, we may be delayed in generating revenue.

In general, implementation of our solutions may require lengthy and significant work, and we do not control our clients’ implementation schedules. We generally incur sales and marketing expenses related to the commissions owed to our sales representatives and make upfront investments in technology and personnel to support the engagements before we begin recognizing revenue from client contracts. As a result, as we have experienced in the past, if our clients do not allocate internal resources necessary to meet their implementation responsibilities or if we face unanticipated implementation difficulties, the implementation may be delayed and/or cancelled. Further, in the past, our implementation capacity has at times constrained our ability to successfully and timely implement our solutions for our clients, particularly during periods of high demand. If the client implementation process is not executed successfully or if execution is delayed, whether due to our clients’ or our capacity constraints, we could incur significant costs prior to generating revenue and our clients may delay their payment to us, and our relationships with some of our clients may be adversely affected. In addition, competitors with more efficient operating models with lower implementation costs could penetrate our client relationships.

Because we recognize revenue for our solutions ratably over the term of our client agreements, decreases in the revenue recognizable under contracts for new active clients will not be fully and immediately reflected in our operating results.

We offer our social commerce solutions primarily through subscription agreements and generally recognize revenue ratably over the related subscription period, which is typically one year. As a result, some portion of the revenue we report in each quarter is revenue from contracts entered into during prior quarters. Consequently, a decline in the revenue recognizable under contracts for new active clients signed in any quarter or a decline in the growth rate of revenue recognizable under contracts signed in any quarter will not be fully and immediately reflected in the revenue of that quarter and would negatively affect our revenue in future quarters. In addition, we may be unable to adjust our cost structure rapidly, or at all, to take account of this reduced revenue.

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

The sales cycle for our solutions, from initial contact with a potential client to contract execution and implementation, varies widely by client and solution. Some of our clients undertake a significant evaluation process, which typically involves not only our solutions, but also those of our competitors, that has in the past resulted in a lengthy sales cycle, typically three to 12 months. We have no assurance that the substantial time and money spent on our sales efforts will produce any sales. If sales expected from a specific client for a particular quarter are not realized in that quarter or at all, our results could fall short of public expectations and our business, operating results and financial condition could be adversely affected.

 

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If we do not continue to identify and qualify new clients, our ability to grow our revenue may be adversely effected.

We continue to focus our sales efforts on generating business from new clients. Our future success, particularly our ability to grow revenue, will depend largely upon the success of this effort. Our sales force and marketing team need to continue to generate new sales leads, and our growth prospects will be harmed if our efforts to expand, train and retain our sales force do not produce a corresponding significant increase in new clients. When we “qualify” a lead, that lead becomes part of our sales “pipeline.” If we do not continue to add potential new clients to our pipeline there could be a negative impact in our ability to grow our revenue in the future.

The average sales price of our solutions may decrease, which may adversely affect our ability to achieve and maintain profitability.

The average sales price of our solutions may decline for a variety of reasons, including competitive pricing pressures, the commoditization of a product as more similar products become available in the market and the introduction of new solutions or pricing models. In addition, because the market for our social commerce solutions changes rapidly and because our business model is evolving, we may not be able to achieve and sustain a level of demand and market acceptance sufficient for us to continue to maintain the current average sales price for our solutions. Furthermore, the composition of our clients may change in a manner that makes it more difficult to maintain such prices. Any failure to maintain our prices could have an adverse effect on our business, results of operations and financial condition.

We derive a substantial portion of our revenue from a limited number of our solutions. If we are unable to maintain demand for these solutions or diversify our revenue sources by successfully developing and introducing new or enhanced solutions, we could lose existing clients or fail to attract new clients and our business could be harmed.

Ratings & Reviews was our first social commerce solution and still remains the core element of our technology platform. Other social commerce solutions we have developed or acquired include Connections, Analytics, BV Local and Curations. Our future financial performance and revenue growth depend upon the successful development, implementation and client acceptance of new products, including products that allow us to utilize the data that we and our clients collect and manage through the use of our products, and the improvement and enhancement of our existing products. We continually seek to develop enhancements to our existing products, as well as new offerings to supplement our existing products. As a result, we are subject to the risks inherent in the development and integration of new products, including defects or undetected errors in our products or in the operation of our products, difficulties in installing or integrating our products on platforms used by our clients or other unanticipated performance, stability and compatibility problems. Any of these problems could result in material delays in the introduction or acceptance of our solutions, increased costs, decreased client satisfaction, breach of contract claims, harm to our industry reputation and reduced or delayed revenues. If we are unable to deliver new products or upgrades or other enhancements to our existing products on a timely and cost-effective basis, it could have a material adverse effect on our business, financial condition and results of operations.

We are currently investing significant amounts in research and development in connection with our efforts to leverage data that we and our clients collect and manage through the use of our solutions. Improving our architecture and developing and delivering new or upgraded solutions may require us to make substantial investments, and we have no assurance that such new solutions will generate sufficient revenue to offset their costs. If we are unable to efficiently develop, license or acquire such new or upgraded solutions on a timely and cost-effective basis, or if such solutions are not effectively brought to market, are not appropriately timed with market opportunity or do not achieve market acceptance, we could lose existing clients or fail to attract new clients, and our business and operating results could be materially adversely affected.

In addition, we must continuously modify and enhance our solutions to keep pace with rapid changes in the social web and Internet-related hardware, software communication, browser, database and social commerce technologies. If we are unable to respond in a timely and cost-effective manner to rapid technological developments, our solutions could become less marketable and less competitive or become obsolete, and our operating results could be negatively affected.

If we are not able to successfully leverage data we and our clients collect and manage through our solutions and services, we may not be able to grow our revenue. Additionally, if we are not able to obtain the rights to utilize the data, or the costs to obtain such data are high, our results of operations could be adversely effected.

Our ability to optimize the placement and scheduling of advertisements for our media clients and to grow our revenue through analytics and other data solutions depends on our ability to successfully leverage data that we and our clients collect and manage through the use of our solutions and services. Our ability to successfully leverage such data, in turn, depends on our ability to collect

 

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and obtain rights to utilize such data in our solutions and services and to maintain and grow our network of clients. We currently employ cookies, which are small files of non-personalized information placed on an Internet user’s computer, on a limited basis with respect to our social commerce solutions and more broadly with respect to our media services. The cookies are used to collect information related to the user, such as the user’s Internet Protocol, or IP, address, demographic information and history of the user’s interactions with our clients and any advertisements we deliver. If we are unable to effectively utilize or introduce cookies more broadly, our ability to collect such data could be impaired.

Additionally, our ability to both collect and utilize data may be affected by a number of factors outside of our control, including increased government regulation of the collection of information concerning consumer behavior on the Internet and the increased use of technologies that allow website visitors to modify their settings to prevent or delete cookies and to sweep all cookies from their computers. Further, we currently do not own the data collected through the use of our solutions and services. If our clients decide not to allow us to collect the data or if we are not able to obtain sufficient rights to the data, we may not be able to utilize it in our solutions and services. Additionally, the costs to us related to obtaining sufficient rights to utilize this data could be high and such costs could affect our future operating results.

Finally, in order to obtain the critical mass of data necessary for our analytics and other data solutions to have value for our clients, we will need to maintain and grow our client base. Currently, a substantial amount of the data to which we have access is collected by a small number of our clients. Consequently, the loss of a single client could have a disproportionate impact on the data that is available to us. Any of these limitations on our ability to successfully leverage data could have a material adverse effect on our ability to increase our revenue through media services, analytics and other data solutions; could adversely affect our ability to grow our revenues and could harm our future operating results.

If we are unable to increase our penetration in our principal existing markets and expand into additional vertical markets, we will be unable to grow our business and increase revenue.

We currently market our solutions to a variety of industries, including the retail, consumer products, travel and leisure, technology, telecommunications, financial services, healthcare and automotive industries. We believe our future growth depends not only on increasing our penetration into the principal markets in which our solutions are currently used but also on identifying and expanding the number of industries, communities and markets that use or could use our solutions. Efforts to offer our solutions beyond our current markets may divert management resources from existing operations and require us to commit significant financial resources, either of which could significantly impair our operating results. In addition, some markets, such as financial services and healthcare, have unique and complex regulatory requirements that may make it more difficult or costly for us to develop, market, sell implement or continue to develop our solutions in those markets. Moreover, our solutions may not achieve market acceptance in new markets, and our efforts to expand beyond our existing markets may not generate additional revenue or be profitable. Our inability to further penetrate our existing markets or our inability to identify additional markets and achieve acceptance of our solutions in these additional markets could adversely affect our business, results of operations and financial condition.

Our client relationships and overall business will suffer if we encounter significant problems migrating clients to our next-generation technology platform, or if the new platform does not meet expectations.

In fiscal year 2013, we began implementation of Conversations, our next-generation social commerce technology platform, and we intend to migrate all of our clients to this new technology platform over time. We have limited experience migrating clients from one platform to another. Given the complexity and significance of this transition, including the amount of client data within our systems that will need to be accessed and migrated, our client relationships, our reputation and our overall business could be severely damaged if these migrations go poorly. To the extent we encounter difficulties in implementation and migration of Conversations, we may be required to incur additional costs, including research and development costs, to address issues identified during the process. In addition, we have incurred additional expenses as a result of the dual technology platforms we maintain (Conversation and our previous social commerce technology platform), and if we experience any delays or technical problems as a result of the migration to Conversations, we may incur such expenses for a much longer period of time than anticipated. Also, one of the anticipated benefits of Conversations is that client implementation times should be shortened, which should result in reduced costs and earlier revenue recognition. Delays in the launch of and migration to Conversations would result in corresponding delays in our ability to achieve these anticipated benefits and could result in client dissatisfaction. Similarly, even if the migrations go smoothly, our business operations and client relationships will be at high risk if the new platform does not meet our performance expectations, or those of our clients. All of this could harm our business in numerous ways including, without limitation, a loss of revenue, lost client contracts, and damage to our reputation.

 

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The market in which we participate is fragmented, rapidly evolving and highly competitive, and we may be unable to compete successfully with our current or future competitors.

The market for social commerce solutions is highly competitive. The competitive dynamics of our market are unpredictable because it is rapidly evolving, fragmented and subject to potential disruption by new technological innovations.

We have several direct and indirect competitors across the regions we serve that provide third-party social commerce solutions, including but not limited to companies such as PowerReviews (formerly named Wavetable), Pluck, Reevoo, eKomi, Yotpo, Rating System and Gigya. As a result of our divestiture of the PowerReviews business and the court-ordered terms associated with that divestiture, our competition with PowerReviews has increased. Additionally, we face potential competition from participants in adjacent markets that may enter our markets by leveraging related technologies and partnering with other companies.

We also compete with traditional marketing and advertising programs used by businesses that remain hesitant to embrace social commerce solutions such as Ratings & Reviews. Additionally, some businesses have developed, or may develop in the future, social commerce solutions internally.

We may also face competition from companies entering our market, including large Internet companies like Amazon, Google and Facebook, which could expand their platforms or acquire one or more of our competitors. While these companies do not currently focus on our market, they have significantly greater financial resources and, in the case of Amazon and Google, a longer operating history. They may be able to devote greater resources to the development and improvement of their services than we can and, as a result, they may be able to respond more quickly to technological changes and clients’ changing needs. Because our market is changing rapidly, it is possible that new entrants, especially those with substantial resources, more efficient operating models, more rapid product development cycles or lower marketing costs, could introduce new solutions that disrupt the manner in which businesses use online word of mouth and engage with consumers online to address the needs of our clients and potential clients. Our business and operating results could be harmed if any such disruption occurs.

We believe we compete primarily on the basis of product breadth and functionality, scope, quality and breadth of client base, amount and quality of content, service, price, reputation and the efficiency of our operating model. Our competitors or potential competitors have adopted certain aspects of our business model, which has made it more difficult to differentiate our solutions. As market dynamics change, or as new and existing competitors introduce more competitive pricing models or new or disruptive technologies, or as clients develop internal solutions for their social commerce needs, we may be unable to renew our agreements with existing clients or attract new clients at the same price or based on the existing pricing model. As a result, we may be required to change our pricing model, offer price incentives or reduce our prices in response to competitive pressures, which could harm our revenue, profitability and operating results. Moreover, many software vendors could bundle competitive products or services or offer them at a low price as part of a larger product sale. In addition, some competitors may offer software that addresses one or a limited number of strategic social commerce functions at lower prices or with greater depth than our solutions. As a result, our competitors might be able to respond more quickly and effectively than we can to new or changing opportunities, technologies, standards or client requirements. For all of these reasons, we may not be able to compete successfully against our current and future competitors.

Unfavorable conditions in the market for social commerce solutions or downturns in the global economy or reductions in marketing spending could limit our ability to grow our business and negatively affect our operating results.

Our operating results may vary based on the impact on us or our clients of changes in the market for social commerce solutions or downturns in the global economy. In addition, the revenue growth and potential profitability of our business depends on marketing spending by companies in the markets we serve. To the extent that weak economic conditions cause our clients and potential clients to freeze or reduce their marketing budgets demand for our solutions may be negatively affected. Historically, economic downturns have resulted in overall reductions in marketing spending. If economic conditions deteriorate or do not materially improve, our clients and potential clients may elect to decrease their marketing budgets by deferring or reconsidering product purchases, which would limit our ability to grow our business and negatively affect our operating results.

Our growth depends in part on the success of our relationships with third parties for the delivery and development of, and implementation support for, our solutions and services.

We currently depend on, and intend to pursue additional relationships with, various third parties related to our media services and product development, including technology, service providers and social media platforms. Identifying, negotiating and documenting these relationships requires significant time and resources, as does integrating our solutions with third-party technologies. In some cases, we do not have formal written agreements with our development partners. Even when we have written agreements, they are typically non-exclusive and do not prohibit our development partners from working with our competitors or from offering competing services. Our competitors may be effective in providing incentives to third parties to favor their products or services.

 

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Specifically, we outsource some of our product development, quality assurance and technology operations to two third-party contractors located in the Ukraine and India. We also rely on a third-party relationship to assist with client implementation support. We believe that supplementing our product development and implementation support activities with our outsourced third-party contractors enhances the efficiency and cost-effectiveness of these activities. If we experience problems with our third-party contractors, including if such contractors’ business operations are interrupted for any reason, or the costs charged by our contractors increases, we may not be able to develop new solutions or enhance existing solutions or meet our clients’ implementation support needs in an alternate manner that is equally or more efficient and cost-effective.

Our Curations product collects and curates consumer-generated images, video and social content from social media platforms such as Facebook, Instagram, Pinterest and Twitter. If these social medical companies change their technology or terms of use in ways that restrict or inhibit the way we can collect or use content, the success of this solution could be significantly impacted.

We use DoubleClick’s ad-serving platform to deliver and monitor ads for our media management services. There can be no assurance that DoubleClick, which is owned by Google, will continue providing these services, that our agreement with DoubleClick will be extended or renewed upon expiration on terms and conditions favorable to us or that we could identify another alternative vendor to take its place. Our agreement with DoubleClick also allows DoubleClick to terminate the agreement on the occurrence of certain events, including material breach of the agreement by us, and to suspend provision of the services if DoubleClick determines that our use of its service violates certain terms of the agreement.

We anticipate that we will continue to depend on these and other third-party relationships in order to grow our business. If we are unsuccessful in maintaining existing and establishing new relationships with third parties, our ability to efficiently develop and implement new solutions could be impaired, our ability to effectively renew agreements with existing customers could be impaired, and our competitive position or our operating results could suffer. Even if we are successful, these relationships may not result in increased revenue.

We currently rely on a small number of third-party service providers to host and deliver a significant portion of our solutions, and any interruptions or delays in services from these third parties could impair the delivery of our solutions and harm our business.

We host our solutions and serve our clients primarily from third-party data center facilities located in Texas, Virginia and Oregon. We also utilize third-party services that deploy data centers worldwide. We do not control the operation of any of the third- party data center facilities we use. These facilities may be subject to break-ins, computer viruses, denial-of-service attacks, sabotage, acts of vandalism and other misconduct. They are also vulnerable to damage or interruption from power loss, telecommunications failures, fires, floods, earthquakes, hurricanes, tornadoes and similar events. As a result, we may in the future experience website disruptions, outages and other performance problems. Despite our efforts, the occurrence of any of these events and a decision by our third-party service providers to close their data center facilities without adequate notice or other unanticipated problems could result in loss of data as well as a significant interruption in the offering of our solutions and harm to our reputation and brand.

Additionally, our third-party data center facility agreements are of limited durations, and our third-party data center facilities have no obligation to renew their agreements with us on commercially reasonable terms, or at all. If we are unable to renew our agreements with these facilities on commercially reasonable terms, we may experience delays in the provisioning of our solutions until an agreement with another data center facility can be arranged. This shift to alternate data centers could take more than 24 hours depending on the nature of the event, which could cause significant interruptions in service and adversely affect our business and reputation.

We also depend on third-party Internet-hosting providers and continuous and uninterrupted access to the Internet through third-party bandwidth providers to operate our business. If we lose the services of one or more of our Internet-hosting or bandwidth providers for any reason or if their services are disrupted, for example due to viruses, other attacks on their systems or due to natural disaster, we could experience disruption in our ability to offer our solutions or we could be required to retain the services of replacement providers, which could increase our operating costs and harm our business and reputation.

Any errors, defects, disruptions or other performance problems with our solutions could harm our reputation and may damage our clients’ businesses. Interruptions in our ability to offer our solutions would likely reduce our revenue, could cause our clients to cease using our solutions and could adversely affect our retention rates. In addition, some of our client agreements require us to issue credits for downtime in excess of certain targets, and in some instances give our clients the ability to terminate the agreements. Our business and results of operations would be harmed if our current and potential clients believe our solutions are unreliable.

 

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Unfavorable changes in evolving government regulation and taxation of the Internet and online communications and social commerce solutions could harm our business and results of operations.

The future success of our business depends upon the continued use of the Internet as a primary medium for communications and commerce. As the use of the Internet continues to evolve, increasing regulation by federal, state or foreign governments becomes more likely. Federal, state or foreign government bodies or agencies have in the past adopted, and may in the future adopt, laws or regulations affecting data privacy, the solicitation, collection, processing or use of personal or consumer information, truth-in-advertising, consumer protection, the use of the Internet as a commercial medium and the market for social commerce solutions. There is also uncertainty as to how some existing laws governing issues such as sales taxes, libel and personal privacy apply to the Internet. In addition, government agencies or private organizations may begin to impose taxes, fees or other charges for accessing the Internet. Any new regulations, legislation or new interpretations of existing regulations or legislation restricting Internet commerce or communications could result in a decline in the use of the Internet as a medium for commerce and communications, diminish the viability of Internet solutions generally, and reduce the demand for our solutions. Additionally, if we are required to comply with new regulations, legislation or interpretations thereof, this compliance could cause us to incur additional expenses, make it more difficult to conduct our business or require us to alter our business model. Any of these outcomes could have a material adverse effect on our business, financial condition or results of operations.

Increased regulation and industry standards relating to data and Internet privacy issues may require us to incur significant expenses or may prevent us from providing our products and solutions to clients, thereby harming our business.

As part of our business, we collect and store personal information. We expect our collection and storage of personal information to increase, primarily in connection with our efforts to expand our media services, analytics, and other data solutions. The regulatory framework for privacy issues worldwide is currently in flux and is likely to remain so for the foreseeable future. Practices regarding the collection, use, storage, transmission and security of personal information by companies operating over the Internet have recently come under increased public scrutiny and as a result there are an increasing number of regulations and industry standards that affect our business.

Regulators, including the Federal Trade Commission (“FTC”), continue to more broadly define personal information to include IP addresses, machine identification, location data and other information. As a result of such broadened definition, our ability to use such personal information is increasingly restricted and may limit or inhibit our ability to operate or expand our business. For example, the U.S. government, including the White House, Congress, and the FTC are reviewing the need for greater regulation for the use, collection and disclosure of information concerning consumer behavior on the Internet, including regulation aimed at restricting certain targeted advertising practices. Proposed legislation could, if enacted, impose additional requirements and/or prohibit the use, collection, storage and disclosure of information concerning consumer behavior on the Internet and restrict or otherwise prohibit the use of certain technologies that track individuals’ activities on web pages or across the Internet. Such laws and regulations could restrict our ability to collect and use web browsing data and personal information, which may result in financial penalties, litigation, regulatory investigations, negative publicity, reduced growth opportunities and other significant liabilities. We will also face additional privacy issues as we continue to expand in international markets, as many nations and economic regions have privacy protections that are more stringent or otherwise at odds with those in the United States. For example, the European Union is in the process of proposing reforms to its existing data protection legal framework, which will result in a greater compliance burden for companies with users in Europe. Further, German companies often require even more stringent privacy controls than other markets within the EU, which may limit our ability to expand in that market. Complying with new EU privacy requirements, whether imposed by regulation or contract, will require additional expenditures and may require other significant liabilities. The Australian Privacy Principles (APP) that came into effect this year likewise increase the complexities of operating in that country. The complex web of privacy and data security requirements across the various countries or economic regions that we operate within may be inconsistently applied and conflict with other applicable requirements, our business practices, or our contractual commitments to customers.

We have incurred, and will continue to incur, expenses to comply with privacy and security standards and protocols imposed by law, regulation, industry standards or contractual obligations. Increased domestic or international regulation of data utilization and distribution practices, including self-regulation, could require us to modify our operations and incur significant expense, which could have an adverse effect on our business, financial condition and results of operations. Our business, including our ability to operate and expand internationally, could be adversely affected if legislation or regulations are adopted, interpreted, or implemented in a manner that is inconsistent with our current or planned business practices and that require changes to these practices, our solutions or our privacy policy.

Our use of open source and third-party technology could impose limitations on our ability to commercialize our solutions.

We use open source software in our solutions. Although we monitor our use of open source software closely, the terms of many open source licenses have not been interpreted by courts in or outside of the United States, and there is a risk that such licenses could be construed in a manner that imposes unanticipated conditions or restrictions on our ability to market our solutions. We also incorporate certain third-party technologies into our solutions and may desire to incorporate additional third-party technologies in the future. Licenses to new third-party technology may not be available to us on commercially reasonable terms, or at all. We could be

 

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required to seek licenses from third parties in order to continue offering our solutions, to re-engineer our technology or to discontinue offering our solutions in the event re-engineering cannot be accomplished on a timely basis, any of which could adversely affect our business, operating results and financial condition.

If Internet search engines’ methodologies are modified, our search engine optimization (“SEO”) capability could be harmed.

Capabilities that we provide our clients, including our SEO solution, depend in part on various Internet search engines, such as Google and Bing, to direct a significant amount of traffic to our clients’ websites. Our ability to influence the number of visitors directed to our clients’ websites through search engines is not entirely within our control. For example, search engines frequently revise their algorithms in an attempt to optimize their search result listings. In 2011, Google announced an algorithm change that affected nearly 12% of their U.S. query results. There cannot be any assurance as to whether these or any future changes that may be made by Google or any other search engines might impact our SEO capability in the long term. Changes in the methodologies used by search engines to display results could cause our clients’ websites to receive less favorable placements, which could reduce the number of users who click to visit our clients’ websites from these search engines. Some of our clients’ websites have experienced fluctuations in search result rankings and we anticipate similar fluctuations in the future. In addition, Internet search engines could decide that content on our clients’ websites enabled by our solutions, including online word of mouth, is unacceptable or violates their corporate policies. Any reduction in the number of users directed to our clients’ websites could negatively affect our ability to earn revenue through our SEO solution.

Our long-term success depends, in part, on our ability to maintain and expand our operations outside of the United States and, as a result, our business is susceptible to risks associated with international operations.

As our operations have expanded, we have established and currently maintain offices in the United States, the United Kingdom, France, Germany, the Netherlands, Sweden, Singapore and Australia. We have limited experience in operating in foreign jurisdictions and are making significant investments to build our international operations. Managing a global organization is difficult, time-consuming and expensive, and any international expansion efforts that we may undertake may not be successful. In addition, conducting international operations subjects us to risks, including the following:

 

    the cost and resources required to localize our solutions;

 

    competition with companies that understand the local market better than we do or who have pre-existing relationships with potential clients in those markets;

 

    legal uncertainty regarding the application of unique local laws to social commerce solutions or a lack of clear precedent of applicable law;

 

    lack of familiarity with and the burden of complying with a wide variety of other foreign laws, legal standards and foreign regulatory requirements, which are subject to unexpected changes;

 

    difficulties in managing and staffing key leadership positions in international operations;

 

    fluctuations in currency exchange rates;

 

    potentially adverse tax consequences, including the complexities of foreign value added tax systems and restrictions on the repatriation of earnings;

 

    developing and maintaining the appropriate tax structure;

 

    increased financial accounting and reporting burdens and complexities and difficulties in implementing and maintaining adequate internal controls;

 

    political, social and economic instability, terrorist attacks and security concerns in general;

 

    reduced or varied protection for intellectual property rights in some countries; and

 

    higher telecommunications and Internet service provider costs.

Operating in international markets also requires significant management attention and financial resources. The investment and additional resources required to establish operations and manage growth in other countries may not produce desired levels of revenue or profitability.

We are exposed to fluctuations in currency exchange rates.

We face exposure to adverse movements in currency exchange rates, which may cause our revenue and operating results to differ materially from expectations. A decline in the U.S. dollar relative to foreign currencies would increase our non-U.S. revenue

 

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when translated into U.S. dollars. Conversely, if the U.S. dollar strengthens relative to foreign currencies, our revenue would be adversely affected. Our operating results could be negatively impacted depending on the amount of expense denominated in foreign currencies. As exchange rates vary, revenue, cost of revenue, operating expenses and other operating results, when translated, may differ materially from expectations. In addition, our revenue and operating results are subject to fluctuation if our mix of U.S. and foreign currency denominated transactions and expenses changes in the future. We currently enter into forward exchange contracts and as we continue to implement hedging strategies to mitigate foreign currency risk, these strategies might not eliminate our exposure to foreign exchange rate fluctuations and would involve costs and risks of their own, such as ongoing management time and expertise, external costs to implement the strategies and potential accounting implications.

If our security measures are breached or unauthorized access to consumer data is otherwise obtained, our solutions may be perceived as not being secure, clients may curtail or stop using our solutions, and we may incur significant liabilities.

Our operations involve the storage and transmission of confidential information, and security breaches could expose us to a risk of loss of this information, litigation, indemnity obligations to our clients and other liability. If our security measures are breached as a result of third-party action, employee error, malfeasance or otherwise, and someone obtains unauthorized access to client and consumer data, including personally identifiable information regarding consumers, our reputation will be damaged, our business may suffer and we could incur significant liability. Because techniques used to obtain unauthorized access or to sabotage systems change frequently and generally are not recognized until launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures. Even in cases where commercially reasonable security measures are in place, employee errors or intentional acts may be able to circumvent protections meant to secure consumer data from external threats. If an actual or perceived breach of our security occurs, the market perception of the effectiveness of our security measures could be harmed and we could lose potential sales and existing clients.

We may be subject to claims that we violated intellectual property rights of others, which are extremely costly to defend and could require us to pay significant damages and limit our ability to operate.

Companies in the Internet and technology industries, and other patent, copyright and trademark holders, own large numbers of patents, copyrights, trademarks and trade secrets and frequently enter into litigation based on claims of infringement or other violations of intellectual property rights. We have received in the past, and expect to receive in the future, notices that claim we or our clients using our solutions have misappropriated or misused other parties’ intellectual property rights. There may be intellectual property rights held by others, including issued or pending patents, copyrights and trademarks, that cover significant aspects of our technologies, content, branding or business methods. Any intellectual property claim against us or against our clients requiring us to indemnify our clients, regardless of merit, could be time-consuming and expensive to settle or litigate and could divert our management’s attention and other resources. These claims could subject us to significant liability for damages and could result in our having to stop using technology, content, branding or business methods found to be in violation of another party’s rights. In addition, some of our commercial agreements require us to indemnify the other party for third-party intellectual property infringement claims, which could increase the cost to us of an adverse ruling in such an action. We might be required or may opt to seek a license for rights to intellectual property held by others, which may not be available on commercially reasonable terms, or at all. Even if a license is available, we could be required to pay significant royalties, which would increase our operating expenses. We may also be required to develop alternative non-infringing technology, content, branding or business methods, which could require significant effort and expense and make us less competitive. If we cannot license or develop technology, content, branding or business methods for any allegedly infringing aspect of our business, we may be unable to compete effectively. Any of these results could harm our operating results.

If we do not adequately protect our intellectual property, our ability to compete could be impaired.

If we are unable to protect our intellectual property, our competitors could use our intellectual property to market products and services similar to ours and our ability to compete effectively would be impaired. To protect our intellectual property we rely on a combination of copyright, trademark, patent and trade secret laws, contractual provisions and technical measures. These protections may not be adequate to prevent our competitors from copying or reverse-engineering our technology and services to create similar offerings. The scope of patent protection, if any, we may obtain from our patent applications is difficult to predict and, if issued, our patents may be found invalid, unenforceable or of insufficient scope to prevent competitors from offering similar services. Our competitors may independently develop technologies that are substantially equivalent or superior to our technology. To protect our trade secrets and other proprietary information, we require employees, consultants, advisors, subcontractors and collaborators to enter into confidentiality agreements, and we maintain policies and procedures to limit access to our trade secrets and proprietary information. These agreements and the other actions we take may not provide meaningful protection for our trade secrets, know-how or other proprietary information from unauthorized use, misappropriation or disclosure. Existing copyright and patent laws may not provide adequate or meaningful protection in the event competitors independently develop technology, products or services similar to our solutions. Even if such laws provide protection, we may have insufficient resources to take the legal actions necessary to protect our interests.

 

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Upon discovery of potential infringement of our intellectual property, we promptly take action we deem appropriate to protect our rights. Even if we do detect violations and decide to enforce our intellectual property rights, litigation may be necessary to enforce our rights, and any enforcement efforts we undertake could be time-consuming and expensive, could divert our management’s attention and may result in a court determining that our intellectual property rights are unenforceable. A failure to protect our intellectual property in a cost-effective and meaningful manner could have a material adverse effect on our ability to compete.

As of January 31, 2015, we had seven issued U.S. patents and 24 pending U.S. non-provisional patent applications. We cannot be certain that any additional patents will be issued with respect to our patent applications. Any current or future patents issued to us may be challenged, invalidated or circumvented, may not provide sufficiently broad protection or may not prove to be enforceable inactions against alleged infringers. Furthermore, effective patent, trademark, copyright and trade secret protection may not be available in every country in which our products are available over the Internet. In addition, the legal standards relating to the validity, enforceability and scope of protection of intellectual property rights are uncertain and still evolving.

We face potential liability and expenses for legal claims based on online word of mouth and other third-party content that is enabled and delivered by our solutions and services. If we are required to pay damages or expenses in connection with these legal claims, our operating results and business may be harmed.

Our solutions enable our clients to collect and display user-generated content, in the form of online word of mouth, on their websites and other third-party websites. We are also involved in the syndication and moderation of such content and the delivery of other forms of third-party content in connection with our media services. Consequently, in connection with the operation of our business, we face potential liability based on a variety of theories, including fraud, defamation, negligence, copyright or trademark infringement or other legal theories based on syndication or moderation of this information and under various laws, including the Lanham Act and the Copyright Act. In addition, it is also possible that consumers could make claims against us for losses incurred in reliance upon information enabled by our solutions, syndicated, moderated or delivered by us or displayed on our clients’ websites or social networks. These claims, whether brought in the United States or abroad, could divert management time and attention away from our business and result in significant costs to investigate and defend, regardless of the merit of these claims. If we become subject to these or similar types of claims and are not successful in our defense, we may be forced to pay substantial damages. There is no guarantee that we will avoid future liability and potential expenses for legal claims based on the content of the materials that our solutions and services enable. Should the content enabled by our solutions and services give rise to claims against us, we could be subject to substantial liability, which could have a negative impact on our business, revenue and financial condition.

Undetected errors or defects in our solutions could result in the loss of revenue, delayed market acceptance of our products or services or claims against us.

Our solutions are complex and frequently upgraded and may contain undetected errors, defects, failures or viruses, especially when first introduced or when new versions or enhancements are released. Our solutions and services may also be vulnerable to fraudulent acts by third-parties, including the posting of inauthentic reviews and click-through fraud, which occurs when an individual clicks on an ad displayed on a website or an automated system is used to create such clicks with the intent of generating the revenue share payment to the publisher rather than to view the underlying content. Despite testing, our solutions, or third-party products that we incorporate into our solutions, each may contain undetected errors, defects, viruses or vulnerabilities that could, among other things:

 

    require us to make extensive changes to our solutions, which would increase our expenses;

 

    expose us to claims for damages;

 

    require us to incur additional technical support costs;

 

    cause negative client or consumer reactions that could reduce future sales;

 

    generate negative publicity regarding us and our solutions; or

 

    result in clients electing not to renew their subscriptions for our solutions.

Any of these occurrences could have a material adverse effect upon our business, financial condition and results of operations.

 

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The unfavorable outcome of any pending or future litigation or administrative action and expenses incurred in connection with litigation could result in additional litigation, financial losses or harm to our business.

We have been in the past, and in the future may be, subject to legal actions in the ordinary course of our operations, both domestically and internationally. See Note 11, Commitments and Contingencies, to the Note to Unaudited Condensed Consolidated Financial Statements of this Quarterly Report on Form 10-Q for further description of these claim. There can be no assurances as to the favorable outcome of any litigation. An unfavorable outcome in any litigation matter against us could result in additional litigation. In addition it can be costly to defend litigation and these costs could negatively impact our financial results.

We face risks associated with our acquired companies that may adversely impact our operating results.

In November 2012, we acquired Longboard Media, a full service media network for retailers, shopping publishers and advertisers based in San Francisco, California. In April 2014, we acquired FeedMagnet, a social media curation company that enables brands to collect, curate and display consumer-generated images, video and social content on their websites. We may not successfully evaluate, utilize or integrate the acquired products, technologies or personnel, or accurately forecast the financial impact of the acquisitions, including accounting charges or the impact on our existing business. The acquisitions of Longboard Media and FeedMagnet have provided us with new lines of business and/or products that may result in unforeseen operating difficulties and expenditures. External factors, such as competition from companies with greater resources and experience and our clients’ willingness to purchase new and different services from us, may also limit our ability to make further investment in our business in order to take full advantage of these product opportunities available to us. Accordingly, we may not realize the potential benefits of the acquisitions.

Our divestiture of the PowerReviews business could have an adverse effect on our business.

After the completion of our acquisition of PowerReviews, the DOJ filed a complaint against us with the U.S. District Court for the Northern District of California, San Francisco Division (the “Court”) alleging that our acquisition of PowerReviews violated Section 7 of the Clayton Act, 15 U.S.C. Section 18, and seeking the divestiture of assets sufficient to create a competing business that can replace the competitive significance of PowerReviews in the marketplace. After the Court ruled on January 8, 2014 that our acquisition of PowerReviews violated Section 7 of the Clayton Act, 15 U.S.C. Section 18, on April 24, 2014, we entered into a Joint Stipulation with the DOJ to resolve the DOJ’s claims in the antitrust action and, together with the DOJ, we submitted the Order to the Court. Under the terms of the Joint Stipulation and the Order, we were required to divest all of the assets of the PowerReviews business. On June 4, 2014, we entered into a definitive agreement to divest PowerReviews, LLC, the successor to PowerReviews, to Wavetable Labs, LLC (“Wavetable”) for $30.0 million in cash, $4.5 million of which is to be held in escrow as partial security for the Company’s indemnification obligations under the definitive agreement. The terms of this transaction were approved by the DOJ on June 26, 2014, and the transaction was completed on July 2, 2014. Wavetable subsequently changed its name to PowerReviews. As a result of this divestiture, we expect to experience in the short term a decrease in our SaaS revenues and a negative impact on our adjusted EBITDA, our progress towards profitability and our progress towards positive operating cash flows. In addition, competition in the social commerce solutions market has become more intense as a result of this divestiture. We have ongoing obligations arising as a result of the terms of the Joint Stipulation with the DOJ, the Order and the divestiture agreement with PowerReviews. If we fail to comply with these obligations, our business could be adversely affected.

If we undertake business combinations and acquisitions, they may be difficult to integrate, disrupt our business, dilute stockholder value or divert management’s attention.

We may in the future support our growth through additional acquisitions of, or investments in, additional complementary businesses, services or technologies. Future acquisitions involve risks, such as:

 

    misjudgment with respect to the value, return on investment or strategic fit of any acquired operations or assets;

 

    challenges associated with integrating acquired technologies, operations and cultures of acquired companies;

 

    exposure to unforeseen liabilities;

 

    diversion of management and other resources from day-to-day operations;

 

    possible loss of key employees, clients, suppliers and partners;

 

    higher than expected transaction costs;

 

    potential loss of commercial relationships and clients based on their concerns regarding the acquired business or technologies; and

 

    additional dilution to our existing stockholders if we use our common stock as consideration for such acquisitions.

As a result of these risks, we may not be able to achieve the expected benefits of any acquisition. If we are unsuccessful in completing or integrating acquisitions, we may be required to reevaluate our growth strategy and we may incur substantial expenses and devote significant management time and resources in seeking to complete and integrate the acquisitions.

 

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Future business combinations could involve the acquisition of significant intangible assets. We may need to record write-downs from future impairments of identified intangible assets and goodwill. These accounting charges would reduce any future reported earnings or increase a reported loss. In addition, we could use substantial portions of our available cash to pay the purchase price for acquisitions. Subject to the provisions of our existing indebtedness, it is possible that we could incur additional debt or issue additional equity securities as consideration for these acquisitions, which could cause our stockholders to suffer significant dilution.

Our business depends on retaining and attracting qualified management and operating personnel.

Our success depends in large part on our ability to retain and attract high-quality management and operating personnel. We do not maintain key person life insurance policies on any of our employees. We may not be able to offset the impact on our business of the loss of the services of one or more of our executive officers or key employees. Our business also requires skilled technical and sales personnel, who are in high demand and are often subject to competing offers. As we expand into new vertical and geographic markets, we will require personnel with expertise in these new areas. Competition for qualified employees is intense in our industry and particularly in Austin, Texas, where most of our employees are based. We continue to experience increased employee turnover since our initial public offering and have incurred additional expenses as a result. An inability to retain, attract, relocate and motivate additional highly skilled employees required for the operation and planned expansion of our business could harm our operating results and impair our ability to grow. To retain and attract key personnel, we use various measures, including an equity incentive program and incentive bonuses for executive officers and other key employees. These measures may not be sufficient to retain and attract the personnel we require to operate our business effectively. A significant portion of the stock options held by our employees have exercise prices that are higher than the current market price for our common stock. As a result, such stock options may no longer provide additional incentive for our employees to remain employed by us and we may be required to issue additional equity grants to retain key employees. In addition, in making employment decisions, particularly in the software industry, job candidates often consider the value of the stock options they are to receive in connection with their employment. Significant volatility in the price of our stock may, therefore, adversely affect our ability to retain and attract key employees.

Our growth could strain our personnel, technology and infrastructure resources, and if we are unable to effectively manage our growth, our operating results may suffer.

Since our inception, we have experienced growth, which has increased the complexity of our operations. As our operations have expanded, we have grown from 640 full-time employees at April 30, 2012 to 825 full-time employees at January 31, 2015. We have increased the size of our client base from 782 active clients at April 30, 2012 to 1,315 active clients at January 31, 2015. The rapid growth and increasing complexity have demanded, and will continue to demand, substantial resources and attention from our management, most of whom have limited experience in managing a business of our size and complexity. We expect to continue to hire more employees in the future as we grow our business. To manage the expected growth of our operations and personnel and to support financial reporting requirements as a public company, we will need to continue to improve our operational, financial, technology and management controls and our reporting systems and procedures. Further, to accommodate our expected growth we must continually improve and maintain our technology, systems and network infrastructure. Our current and planned personnel, systems, procedures and controls may not be adequate to support our future operations. Our inability to expand our personnel and operations in an efficient manner could result in difficulty in acquiring new clients or retaining existing clients, declines in quality or client satisfaction, increases in expenses relative to our revenue and challenges in developing and introducing new solutions, any of which could adversely affect our operating results.

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

We rely primarily on our direct sales force to sell our solutions. Our solutions require a sophisticated sales force. We have worked to upgrade and expand our sales team in order to increase revenue from new and existing clients and to further penetrate our existing markets and expand into new markets. We are constantly evaluating our sales organization as part of our efforts to optimize our sales operations to grow our revenue. If we have not structured our sales organization properly or if we fail to make changes in a timely fashion, our ability to grow our revenue could be adversely effected.

Competition for qualified sales personnel is intense, and there can be no assurance that we will be able to retain our existing sales personnel or attract, integrate or retain sufficient highly qualified sales personnel, which could adversely affect our revenue growth. Many of the companies with which we compete for experienced personnel have greater resources than we have. If any of our sales representatives were to leave us and join one of our competitors, we may be unable to prevent such sales representatives from helping competitors to solicit business from our existing clients, which could adversely affect our revenue.

In addition, new sales hires require training and typically take several months to achieve productivity, if at all. For internal planning purposes, we assume that it will take significant time before a newly hired sales representative is fully trained and productive

 

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in selling our solutions. This amount of time may be longer for sales personnel focused on new geographies or new verticals. As a result, the cost of hiring and carrying new representatives cannot be offset by the revenue they produce for a significant period of time. Furthermore, because of the length of our sales training period, we often cannot determine if a sales representative will succeed until after he or she has been employed for several months or longer. If we experience high turnover in our sales force, or if we cannot reliably develop and grow a successful sales team, our revenue growth may be adversely affected.

Our sales force upgrade and expansion may not have the desired effect of expanding our business and generating anticipated revenue. If the growth of our sales and marketing team does not achieve the results we anticipated, then we may be forced to make changes to the organization. Should such changes be required, there can be no assurance that revenue and our ability to grow revenue would not be adversely affected.

If we are unable to maintain our corporate culture as we grow, we could lose the passion, performance, innovation, openness, teamwork, respect and generosity that we believe contribute to our success and our business may be harmed.

We believe that a critical contributor to our success has been our corporate culture. As we grow and change, we may find it difficult to maintain the values that are fundamental to our corporate culture. Any failure to preserve our culture could negatively affect our ability to recruit and retain personnel and otherwise adversely affect our future success. We may face pressure to change our culture as we grow, particularly if we experience difficulties in attracting competent personnel who are willing to embrace our culture.

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

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

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

As of January 31, 2015, we had federal net operating loss carry-forwards of $209.4 million due to prior period losses, which expire beginning in 2027. We also have federal research tax credit carry-forwards of approximately $4.8 million that will begin to expire in 2027. As of January 31, 2015, we had state net operating loss carry-forwards of $102.0 million, which will begin expiring in 2016 if not utilized, and research and development credits of $1.7 million, of which a portion will begin expiring in 2034 and a portion will not expire. Realization of these net operating loss and research tax credit carry-forwards depends on many factors, including our future income. There is a risk that due to regulatory changes or unforeseen reasons our existing carry-forwards could expire or otherwise be unavailable to offset future income tax liabilities, which would adversely affect our operating results. In addition, under Section 382/383 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 carry-forwards and other pre-change tax attributes, such as research tax credits, to offset its post-change income may be limited. As a result, if we earn net taxable income, our ability to use our pre-change net operating loss carry-forwards or other pre-change tax attributes to offset U.S. federal and state taxable income may be subject to limitations.

We might require additional capital to support business growth, and this capital might not be available.

We intend to continue to make investments to support our business growth and may require additional funds to respond to business challenges, including the need to develop new solutions or enhance our existing solutions and platforms, enhance our operating infrastructure and acquire complementary businesses and technologies. Accordingly, we may need to engage in equity or debt financings to secure additional funds. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock, including shares of common stock sold in our initial public offering which was completed in February 2012, or our follow-on public offering, which was completed in July 2012. Any debt financing secured by us in the future would likely be senior to our common stock and could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. In addition, we may not be able to obtain additional financing on terms favorable to us, if at all. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly limited.

 

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Our loan agreement contains operating and financial covenants that may restrict our business and financing activities and expose us to risks that could adversely affect our liquidity and financial condition.

On November 21, 2014, we entered into a secured revolving credit facility of up to $70.0 million (the “Credit Facility”), with a sublimit of $3.0 million for the incurrence of swingline loans and a sublimit of $15.0 million for the issuance of letters of credit pursuant to an Amended and Restated Credit Facility dated as of November 21, 2014, among us, the financial institutions from time to time party thereto and Comerica Bank, as administrative agent, sole lead arranger and sole bookrunner. Advances made under the Credit Facility may be used for general corporate purposes and working capital purposes. Amounts repaid under the Credit Facility may be reborrowed. The Credit Facility matures on November 21, 2017 and is payable in full upon maturity. If we cannot obtain the funds to repay this loan or otherwise refinance it on terms favorable to us, or at all, our liquidity and general financial condition could be adversely effected. Any borrowings, letters of credit and credit card services pursuant to our loan agreement are secured by substantially all of our assets, including our intellectual property. Our loan agreement limits, among other things, our ability to:

 

    incur additional indebtedness or guarantee the obligations of other persons;

 

    make payments on additional indebtedness or make changes to certain agreements related to additional indebtedness;

 

    enter into hedging arrangements;

 

    create, incur or assume liens and other encumbrances;

 

    make loans and investments, including acquisitions;

 

    make capital expenditures;

 

    sell, lease, license or otherwise dispose of assets;

 

    store inventory and equipment with other persons;

 

    pay dividends or make distributions on, or purchase or redeem, our capital stock;

 

    consolidate or merge with or into other entities;

 

    undergo a change in control;

 

    engage in new or different lines of business; or

 

    enter into transactions with affiliates.

Our loan agreement also contains numerous affirmative covenants, including covenants regarding compliance with applicable laws and regulations, reporting, payment of taxes and other obligations, maintenance of insurance coverage, maintenance of bank and investment accounts with the financial institution and its affiliates, registration of intellectual property rights, and certain third-party consents and waivers. The operating and other restrictions and covenants in our loan agreement, and in any future financing arrangements that we may enter into, may restrict our ability to finance our operations, engage in certain business activities, 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 to meet those restrictions and covenants.

Our loan agreement contains events of default, which include, among others, non-payment defaults, covenant defaults, material adverse change defaults, bankruptcy and insolvency defaults, material judgment and settlement defaults, cross-defaults to certain other material agreements and defaults related to inaccuracy of representations and warranties made by us. An event of default under our loan agreement or any future financing arrangements could result in the termination of commitments to extend further credit, cause any outstanding indebtedness under our loan agreement or under any future financing arrangements to become immediately due and payable and permit our lender to exercise remedies with respect to all of the collateral securing the loans. Accordingly, an event of default could have an adverse effect on our access to capital, liquidity and general financial condition.

Our stock price has been volatile and may be subject to volatility in the future.

The market price of our common stock has been volatile historically and could be subject to wide fluctuations in response to various factors, some of which are beyond our control. For example, fluctuations in the valuation of companies perceived by investors to be comparable to us or in valuation metrics, such as our price to earnings ratio, could impact our stock price. Additionally, the stock markets have experienced price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. These broad market and industry fluctuations and general economic, political and market conditions, such as recessions, changes in U.S. credit ratings, interest rate changes or international currency fluctuations, may negatively affect the market price of

 

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our common stock. In the past, many companies that have experienced volatility in the market price of their stock have been subject to securities class action litigation. We may be the target of this type of litigation in the future. Securities litigation against us, regardless of the merits or outcome, could result in substantial costs and divert our management’s attention from other business concerns, which could materially harm our business.

If securities analysts do not continue to publish research or publish negative research about our business, our stock price and trading volume could decline.

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

Our stock price could decline due to the large number of outstanding shares of our common stock eligible for future sale.

The price of our common stock could decline if there are substantial sales of our common stock in the public stock market. We had an aggregate of 79,486,146 outstanding shares of common stock as of March 2, 2015. Shares beneficially owned by our affiliates and certain employees are subject to volume and other restrictions under Rules 144 or 701 of the Securities Act, as well as our insider trading policy and any applicable 10b5-1 trading plan. Certain of our employees, including many of our executive officers, have entered into 10b5-1 trading plans providing for sales of shares of our common stock from time to time.

The holders of certain shares of our common stock have rights, subject to some conditions, to require us to file registration statements covering their shares or to include their shares in registration statements that we may file for ourselves or other stockholders.

We have also registered the issuance of all shares of common stock that we have issued and may issue under our option plans. These shares can be freely sold in the public market upon issuance, subject to the satisfaction of applicable vesting provisions, Rule 144 volume limitations and manner of sale, notice and public information requirements applicable to our affiliates.

Also, in the future, we may issue securities in connection with investments and acquisitions. The amount of our common stock issued in connection with an investment or acquisition could constitute a material portion of our then outstanding stock. Due to these factors, sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock.

We do not anticipate paying any dividends on our common stock.

We do not anticipate paying any cash dividends on, or making repurchases of, our common stock in the foreseeable future. If we do not pay cash dividends, you could receive a return on your investment in our common stock only if the market price of our common stock has increased when you sell your shares. In addition, the terms of our loan and security agreement currently restrict our ability to pay dividends or purchase our stock.

Changes in accounting standards, the interpretation of accounting standards by applicable regulatory bodies, or the accounting principles governing our financial reporting could result in unexpected, and potentially adverse, impacts on our revenue, operating results and financial position.

Our consolidated financial statements are prepared in accordance with generally accepted accounting principles (“GAAP”) adopted by the Securities and Exchange Commission (“SEC”) for financial reporting in the United States. GAAP is subject to change by new and updated accounting pronouncements made by the Financial Accounting Standards Board, American Institute of Certified Public Accountants, or other standard setting organizations recognized by the SEC. In addition, the SEC may change its interpretation of existing accounting standards, issue new rules and regulations or change the accounting principles required or accepted for financial reporting in the United States. Any of these changes could have a significant impact on our previously reported financial statements, our revenue, operating results, and financial position this period, or in the future, and the comparability and consistency of our financial results with other periods.

 

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The requirements of being a public company may strain our resources and divert management’s attention.

We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (“Exchange Act”), the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of the NASDAQ Stock Market LLC and other applicable securities and rules and regulations. We have incurred and will continue to incur significant legal, accounting and other expenses from operating as a public company. The Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act of 2010, as well as rules subsequently implemented by the SEC and The NASDAQ Stock Market LLC impose various requirements on public companies, including establishing effective internal controls and certain corporate governance practices. Our management and other personnel have begun to devote a substantial amount of time to these compliance initiatives, and additional laws and regulations may divert further management resources.

As a public company, we are also required, under Section 404 of the Sarbanes-Oxley Act (“Section 404”), to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting. A material weakness is a deficiency or combination of deficiencies in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of a company’s annual and interim financial statements will not be prevented or detected on a timely basis. We will be required to disclose changes made in our internal control and procedures on a quarterly basis. However, our independent registered public accounting firm will not be required to formally attest to the effectiveness of our internal control over financial reporting pursuant to Section 404 until the date we are no longer an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”). We will remain an emerging growth company until the earliest of (i) the last day of the fiscal year during which we have total annual gross revenues of $1 billion or more; (ii) April 30, 2017; (iii) the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt; and (iv) the date on which we are deemed to be a “large accelerated filer” under the Exchange Act.

We have consumed, and will continue to consume, management resources and incur significant expenses for section 404 compliance on an ongoing basis. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal controls are effective. If we are unable to conclude that our internal control over financial reporting is effective, we could lose investor confidence in the accuracy and completeness of our financial reports, which could cause the price of our common stock to decline.

In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some activities more time consuming. These laws, regulations and standards are subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We intend to invest resources to comply with evolving laws, regulations and standards, and this investment may result in increased general and administrative expenses and a diversion of management’s time and attention from revenue-generating activities to compliance activities. Greater expenditures may be necessary in the future with the advent of new laws, regulations and stock exchange listing requirements pertaining to public companies, particularly after we are no longer an emerging growth company. Moreover, if we are not able to comply with the requirements of new compliance initiatives in a timely manner, the market price of our stock could decline, and we could be subject to investigations and other actions by the SEC, The NASDAQ Stock Market LLC or other regulatory authorities, which would require additional financial and management resources. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to practice, regulatory authorities may initiate legal proceedings against us and our business may be harmed.

We are an “emerging growth company,” and the reduced disclosure requirements applicable to “emerging growth companies” could make our common stock less attractive to investors. Additionally, if we cease to be an emerging growth company prior to April 30, 2017, we may not be able to meet all the regulatory requirements applicable to non-emerging growth companies.

We are an “emerging growth company,” as defined in the JOBS Act. For as long as we are an emerging growth company, we may take advantage of certain exemptions from various reporting requirements, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding advisory “say-on-pay” votes on executive compensation and shareholder advisory votes on golden parachute compensation. We will remain an emerging growth company until the earliest of (i) the last day of the fiscal year during which we have total annual gross revenues of $1 billion or more; (ii) April 30, 2017; (iii) the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt; and (iv) the date on which we are deemed to be a “large accelerated filer” under the Exchange Act. We will be deemed a large accelerated filer on the last day of the fiscal year for which the market value of our common equity held by non-affiliates exceeds $700 million, measured on October 31. As of October 31, 2014, we did not meet this threshold. We cannot predict if investors will find our common stock less attractive to the extent we rely on the exemptions available to emerging growth companies. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile. Further, if we become a large accelerated filer prior to April 30, 2017, we may not be able to satisfy all the regulatory requirements.

 

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In addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. However, we have chosen to opt out of such extended transition period, and as a result, we will comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies. Section 107 of the JOBS Act provides that our decision to opt out of the extended transition period for complying with new or revised accounting standards is irrevocable.

If construction of our new headquarters building is not completed on schedule or if we experience difficulties in moving to our new location, we risk increased costs and possible interruption of our business.

We entered into a long term lease for a new headquarters building that commenced construction in December 2014 and is anticipated to be completed in December 2015. We intend to move into the new building at the end of 2015. If the new headquarters facility is not completed by December 31, 2015, we do not expect our current landlord to further extend our current lease and therefore we could experience interruptions to our business while we secure a new headquarters facility. In addition, moving our headquarters is a complex, time-consuming, and expensive process that, without proper planning and effective and timely implementation, could significantly distract management from operating our business. Our inability to adequately address challenges that may arise during this transition could have an adverse effect on our business and results of operations.

Our charter documents and Delaware law could prevent a takeover that stockholders consider favorable and could also reduce the market price of our stock.

Our current certificate of incorporation and bylaws contain provisions that could delay or prevent a change in control of our company. These provisions could also make it more difficult for stockholders to elect directors and take other corporate actions. These provisions include:

 

    a classified board of directors whose members serve staggered three-year terms;

 

    not providing for cumulative voting in the election of directors;

 

    authorizing our board of directors to issue, without stockholder approval, preferred stock with rights senior to those of our common stock;

 

    prohibiting stockholder action by written consent; and

 

    requiring advance notification of stockholder nominations and proposals.

These and other provisions in our current certificate of incorporation and bylaws, and under Delaware law could discourage potential takeover attempts, reduce the price that investors might be willing to pay in the future for shares of our common stock and result in the market price of our common stock being lower than it would be without these provisions.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Use of Proceeds from Public Offering of Common Stock

On February 29, 2012, we completed our initial public offering of 10,906,941 shares of our common stock, of which 10,422,645 shares were offered by us and 484,296 shares were offered by selling stockholders at a price to the public of $12.00 per share. The aggregate offering price for shares sold in the offering was approximately $130.9 million. This offering was effected on February 23, 2012 pursuant to a registration statement on Form S-1 (File No. 333-176506), which the SEC declared effective on such date.

Some of the proceeds from our initial public offering have been used for working capital and general corporate purposes. We initially invested our net proceeds from our initial public offering in U.S. government-guaranteed short-term investments. In connection with our acquisition of PowerReviews, we used approximately $31.1 million in cash in our first fiscal quarter of 2013. On November 5, 2012, we used approximately $26.9 million in cash in our purchase of Longboard Media. There have been no material differences between the actual use of proceeds and intended use of proceeds as originally described in our initial public offering or follow-on offering.

 

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Table of Contents
Item 6. Exhibits

See the Exhibit Index immediately following the signature page of this Quarterly Report on Form 10-Q, which is incorporated herein by reference.

 

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Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Quarterly Report on Form 10-Q to be signed on its behalf by the undersigned thereunto duly authorized.

 

BAZAARVOICE, INC.
Dated: March 6, 2015

/s/ James R. Offerdahl

James R. Offerdahl
Chief Financial Officer
(Principal Financial Officer)

 

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Table of Contents

EXHIBIT INDEX

 

Exhibit

Number

        Incorporated by Reference
  

Exhibit Description

  

Form

    

File No.

  

Exhibit

    

Filing Date

    3.1    Amended and Restated Certificate of Incorporation, as currently in effect      S-1       333-176506      3.1       August 26, 2011
    3.2    Amended and Restated Bylaws, as currently in effect      S-1       333-176506      3.2       August 26, 2011
  10.1    Amended and Restated Credit Agreement, dated as of November 21, 2014, by and among the Company, the financial institutions from time to time party thereto and Comerica Bank as administrative agent, sole lead arranger and sole bookrunner      8-K       001-35433      10.1       November 24, 2014
  10.2    Amended and Restated Security Agreement, dated as of November 21, 2014, by and between the Company and Comerica Bank, as administrative agent      8-K       001-35433      10.2       November 24, 2014
  10.3*    UK Sub-Plan to the 2012 Equity Incentive Plan            
  10.4*    UK Sub-Plan to the 2012 Equity Incentive Plan Form of Stock Option Award Agreement            
  10.5*    UK Sub-Plan to the 2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement            
  10.6*    2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement (Netherlands)            
  10.7*    2012 Equity Incentive Plan Form of Stock Option Award Agreement (Netherlands)            
  10.8*    2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement (Germany)            
  10.9*    2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement (France)            
  10.10*    2012 Equity Incentive Plan Form of Stock Option Award Agreement for French Beneficiaries            
  10.11*    French Sub-Plan to the 2012 Equity Incentive Plan            
  10.12*    French Sub-Plan to the 2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement            
  10.13*    2012 Equity Incentive Plan Form of Stock Option Award Agreement (Australia)            
  10.14*    2012 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement (Australia)            
  10.15*    2012 Employee Stock Purchase Plan Form of Subscription Agreement for Non-U.S. Participants            
  10.16*    2012 Employee Stock Purchase Plan Form of Subscription Agreement (Australia)            
  31.1*    Certification of Chief Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002            
  31.2*    Certification of Chief Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002            
  32.1*    Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002            
  32.2*    Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002            
101.INS*    XBRL Instance Document            
101.SCH*    XBRL Taxonomy Extension Schema Document            

 

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Table of Contents

Exhibit

Number

        Incorporated by Reference
  

Exhibit Description

  

Form

  

File No.

  

Exhibit

  

Filing Date

101.CAL*    XBRL Taxonomy Extension Calculation Linkbase Document            
101.DEF*    XBRL Taxonomy Extension Definition Linkbase Document            
101.LAB*    XBRL Taxonomy Extension Label Linkbase Document            
101.PRE*    XBRL Taxonomy Extension Presentation Linkbase Document            

 

* Filed herewith.

 

59

Exhibit 10.3

Neither this document, nor any stock option agreement connected with it, is an approved prospectus for the purposes of section 85(1) of the Financial Services and Markets Act 2000 (“FSMA”) and no offer of transferable securities to the public (for the purposes of section 102B of FSMA) is being made in connection with the UK Sub-Plan to the Bazaarvoice, Inc. 2012 Equity Incentive Plan (the “Sub-Plan”). The Sub-Plan is exclusively available to bona fide employees and former employees of Bazaarvoice, Inc, Bazaarvoice Limited and any other UK Subsidiary.

UK SUB-PLAN TO THE

BAZAARVOICE, INC.

2012 EQUITY INCENTIVE PLAN

Additional Terms and Conditions for Options awarded to Participants resident in the UK

 

1. The purpose of this Sub-Plan is to provide incentives for present and future UK tax resident employees of Bazaarvoice, Inc., Bazaarvoice Limited and any other UK Subsidiary over shares of Common Stock of Bazaarvoice, Inc. (the “Company”).

 

2. Capitalized terms are defined in the Company’s 2012 Equity Incentive Plan (the “Plan”), subject to the provisions of this Sub-Plan.

 

3. References to Incentive Stock Options and Nonstatutory Stock Options shall not apply to Options granted under the Sub-Plan.

 

4. The Options granted under this Sub-Plan shall be designated as Unapproved Options.

 

5. This Sub-Plan is governed by the Plan and all its provisions shall be identical to those of the Plan SAVE THAT (i) “Sub-Plan” shall be substituted for “Plan” where applicable and (ii) the following provisions shall be as stated in this Sub-Plan in order to accommodate the specific requirements of the laws of England and Wales:

 

6. SECTION 1. Purposes of the Plan .

The words “, directors and Consultants” shall be deleted from the second bullet point.

The words “Incentive Stock Options, Nonstatutory Stock” shall be deleted from the final sentence of this section.

A footnote shall be inserted after “Performance Shares” as follows: “Specific UK securities laws advice must be taken where Restricted Stock is acquired by Participants other than on exercise of an Option.”

 

7. SECTION 2. Definitions .

The following definitions shall be deleted:

“Consultant”; “Incentive Stock Option”; “Nonstatutory Stock Option” and “Outside Director”.

The following definitions shall be added:

“Award Tax Liability” means any liability or obligation of the Company and/or any Subsidiary to account (or pay) for income tax (under the UK withholding system of PAYE (pay as you earn)) or any other taxation provisions and primary class 1 National Insurance Contributions in the United Kingdom to the extent arising from the vesting, assignment, release, cancellation or any other disposal of a Restricted Stock Unit or arising out of the acquisition, retention and disposal of the Shares acquired under this Plan.


Data ” means certain personal information about the Participant, including but not limited to, name, home address and telephone number, date of birth, social insurance number, salary, nationality, job title, any stock, units or directorships held in the Company or any Subsidiary, details of all options or other entitlement to shares awarded, cancelled, exercised, vested, unvested, or outstanding in the Participant’s favour.

Data Recipients ” means third parties assisting the Company in the implementation, administration, and management of the Plan.

ITEPA ” means the Income Tax (Earnings and Pensions) Act 2003.

Joint Election ” means an election (in such terms and such form as provided in paragraphs 3A and 3B of Schedule 1 to the Social Security Contributions and Benefits Act 1992), which has been approved by HM Revenue & Customs for the transfer of the whole of or any liability of the Secondary Contributor for any Secondary NIC Liability.

Option Tax Liability ” means any liability or obligation of the Company and/or any Subsidiary to account (or pay) for income tax (under the UK withholding system of PAYE (pay as you earn)) or any other taxation provisions and primary class 1 National Insurance Contributions in the United Kingdom to the extent arising from the grant, exercise, assignment, release, cancellation or any other disposal of an Option or arising out of the acquisition, retention and disposal of the Shares acquired under this Plan.

Personal Representative ” means the personal representative(s) of a Participant (being either the executors of his will or if he dies intestate the duly appointed administrator(s) of his estate) who have provided to the Board evidence of their appointment as such.

Secondary Contributor ” means a person or company who has a liability to account (or pay) the Secondary NIC Liability to HM Revenue & Customs.

Secondary NIC Liability ” means any liability to employer’s Class 1 National Insurance Contributions to the extent arising from the grant, exercise, release or cancellation of an Option or arising out of the acquisition, retention and disposal of the Shares acquired pursuant to an Option.

Section 431 Election ” means an election made under section 431 of ITEPA.

Taxable Event ” means any occasion on which an Option Tax Liability or Award Tax Liability or Secondary NIC Liability arises in connection with an Option or a Restricted Stock Unit or any award of Stock under it.

UK Subsidiary ” means a Subsidiary of the Company which is incorporated in the UK.

Unapproved Option ” means an Option over shares in the Company that is neither HM Revenue & Customs approved company share option (under Schedule 4 ITEPA) nor an enterprise management incentive (EMI) option which meets the requirements of Schedule 5 ITEPA.

US Plan ” means the Bazaarvoice, Inc. 2012 Equity Incentive Plan.


The following definitions shall be amended to read as follows:

Award ” means, individually or collectively, a grant under the Plan of Unapproved Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares.

Disability ” means total and permanent disability as defined in the Section 22(e)(3) of the Code, provided that in the case of Awards, the Administrator in its discretion may determine whether a permanent and total disability exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time to time.

Employee ” means any person employed by the Company or any Parent or Subsidiary of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.

Plan ” means this UK Sub-Plan to the Bazaarvoice, Inc. 2012 Equity Incentive Plan.

Service Provider ” means an Employee.

 

8. SECTION 3. Stock Subject to the Plan .

The first sentence of Subsection (a) shall be amended to read as follows:

Stock Subject to the Plan . Subject to the provisions of Section 13 of the US Plan (together with the Plan), the maximum aggregate number of Shares that may be issued under the Plan is 4,313,274 Shares.”

The last sentence of Subsection (c) shall be deleted.

 

9. SECTION 4. Administration of the Plan .

The wording in brackets in Subsection (b)(ix) shall be deleted.

 

10. SECTION 5. Eligibility

This section shall be amended to read: “Unapproved Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares and Performance Units may be granted to Service Providers.”

 

11. SECTION 6. Stock Options .

Subsection (a) shall be amended to read as follows:

Limitations . Each Option will be designated in the Award Agreement as an Unapproved Option.”

Subsection (b) shall be amended to read as follows:

Term of Option . The term of each Option will be stated in the Award Agreement.”

Subsection (c)(i)(1)(A) and subsection (c)(i)(1)(B) shall be deleted.

Subsection (c)(i)(2) shall be amended to read as follows:

“In the case of an Unapproved Option, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.”


The second sentence of subsection (e)(iii) ( Option Exercise Price and Consideration: Form of Consideration ) shall be deleted, as shall the words “(3) promissory note, to the extent permitted by Applicable Laws, (4) other Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines in its sole discretion”.

The word “check” will be replaced with “cheque” where it appears in this subsection.

In subsection (d)(i) ( Exercise of Option: Procedure for Exercise: Rights as a Stockholder ), the words “together with the signed Joint Election and the signed Section 431 Election, and (ii) full payment for the Shares with respect to which the Option is exercised (together with any Option Tax Liability and any Secondary NIC Liability)” shall be inserted after “from the person entitled to exercise their Option”.

The words “or, if requested by the Participant, in the name of the Participant and his or her spouse” shall be deleted and replaced with the word “only”.

Subsection (d)(iv) ( Exercise of Option: Death of Participant ) shall be amended in the following manner:

The words:

“designated beneficiary, provided such beneficiary has been designated prior to the Participant’s death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then such Option may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution”

shall be deleted and replaced with “Personal Representative only”.

 

12. SECTION 7. Restricted Stock

The words “ Specific UK securities laws and tax advice must be taken where Restricted Stock is acquired by Participants other than on exercise of an Option. ” shall be added to this section and emphasised in bold.

 

13. SECTON 10. Performance Units and Performance Shares .

In subsection (c) the words “applicable federal or state securities laws” shall be deleted and replaced with the words “any applicable laws”.

 

14. SECTION 11. Leaves of Absence/Transfer Between Locations .

The third and fourth sentences of this section shall be deleted

 

15. SECTION 12. Transferability of Awards .

The words “by will or by the laws of descent and distribution” shall be deleted, and replaced with “on the Participant’s death only to the Participant’s Personal Representative”.

The final sentence of this subsection shall also be deleted


16. SECTION 13. Adjustments; Dissolution or Liquidation; Merger or Change in Control .

Subsection (d) ( Outside Director Awards ) shall be deleted in its entirety.

 

17. SECTION 14. Tax .

Subsection (a) ( Withholding Requirements ) and subsection (b) ( Withholding Arrangements) shall be deleted and replaced with:

Withholding Obligations . In the event that the Company or any Subsidiary determines that it is required to account to HM Revenue & Customs for any Award Tax Liability or Option Tax Liability or Secondary NIC Liability arising from the grant, exercise, assignment, vesting, release, cancellation or any other disposal of an Option or a Restricted Stock Unit or arising out of the acquisition, retention and disposal of the Shares acquired pursuant to an Option or a Restricted Stock Unit, the Participant, as a condition to the issue of Shares in connection with the exercise of an Option, the vesting of a Restricted Stock Unit or on the grant, assignment, release or cancellation of an Option or a Restricted Stock Unit, shall make such arrangements satisfactory to the Company to enable it or any Subsidiary to satisfy any requirement to account for any Award Tax Liability or Option Tax Liability (and, if applicable, any Secondary NIC Liability) that may arise in connection with the Option or the award of Shares pursuant to it including, but not limited to, arrangements satisfactory to the Company for withholding Shares that would otherwise be issued to the Participant.”

 

18. SECTION 15. No Effect on Employment or Service .

The words “with or without cause,” shall be deleted.

 

19. SECTION 17. Term of Plan .

This section shall be amended to read as follows:

“The Plan will become effective upon its adoption by the Board. The Plan will terminate automatically on the termination of the US Plan, unless terminated earlier under Section 17 of the Plan.”

 

20. SECTION 18. Amendment and Termination of the Plan .

Subsection (b) ( Stockholder Approval .) shall be deleted in its entirety.

 

22. SECTION 21. Stockholder Approval .

This section shall be deleted in its entirety.

Exhibit 10.4

UK SUB-PLAN TO THE

BAZAARVOICE, INC.

2012 EQUITY INCENTIVE PLAN

STOCK OPTION AWARD AGREEMENT

Unless otherwise defined herein, the terms defined in the UK Sub-Plan to the Bazaarvoice, Inc. 2012 Equity Incentive Plan (the “Plan”) will have the same defined meanings in this Stock Option Award Agreement (the “Award Agreement”).

 

I. NOTICE OF STOCK OPTION GRANT

You have been granted an Unapproved Option to purchase Common Stock of Bazaarvoice, Inc. (the “Company”), subject to the terms and conditions of the Plan and this Award Agreement, as follows:

Vesting Schedule :

Subject to any acceleration provisions contained in the Plan or set forth below, this Option may be exercised, in whole or in part, in accordance with the following schedule:

[One fourth (  1 4 th) of the shares of Common Stock subject to the Option shall vest on the first anniversary of the Vesting Commencement Date and an additional one forty-eighth (1/48th) of the total number of shares of Common Stock subject to the Option shall vest on the corresponding day of each month thereafter, or to the extent such a month does not have the corresponding day, on the last day of any such month, such that the options subject to the Stock Option Grant shall be fully vested as of the four year anniversary of the Vesting Commencement Date, provided that the Participant continues to be a Service Provider (as defined in the Company’s 2012 Stock Plan) on such dates.]

Termination Period :

This Option will be exercisable for three (3) months after Participant ceases to be a Service Provider, unless such termination is due to Participant’s death or Disability, in which case this Option will be exercisable for twelve (12) months after Participant ceases to be Service Provider. Notwithstanding the foregoing, in no event may this Option be exercised after the Term/Expiration Date as provided above and may be subject to earlier termination as provided in Section 14 of the Plan.

By Participant’s acceptance of award grant, Participant and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Award Agreement, including the Terms and Conditions of Stock Option Grant, attached hereto as Exhibit A, the Joint Election and the Section 431 Election, all of which are made a part of this document. Participant has reviewed the Plan and this Award Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Award Agreement and fully understands all provisions of the Plan, Award Agreement, the Joint Election and the Section 431


Election. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan, Award Agreement the Joint Election and the Section 431 Election. Participant further agrees to notify the Company upon any change in the residence address indicated below.


EXHIBIT A

TERMS AND CONDITIONS OF STOCK OPTION GRANT

1. Grant of Option . The Company hereby grants to the Participant named in the Notice of Stock Option Grant attached as Part I of this Award Agreement (the “Participant”) an option (the “Option”) to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per Share set forth in the Notice of Grant (the “Exercise Price”), subject to all of the terms and conditions in this Award Agreement and the Plan, which is incorporated herein by reference. Subject to Section 17 of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Award Agreement, the terms and conditions of the Plan will prevail.

This Option is not intended to qualify as an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).

2. Vesting Schedule . To the extent permitted by Applicable Law, except as provided in Section 3, the Option awarded by this Award Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant. Shares scheduled to vest on a certain date or upon the occurrence of a certain condition will not vest in Participant in accordance with any of the provisions of this Award Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs.

3. Administrator Discretion . The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Option at any time, subject to the terms of the Plan. If so accelerated, such Option will be considered as having vested as of the date specified by the Administrator.

4. Exercise of Option .

(a) Right to Exercise . If permitted by Applicable Law, this Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Award Agreement.

(b) Method of Exercise . This Option is exercisable in a manner and pursuant to such procedures as the Administrator may determine, which will state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. This Option will be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice, along with a signed Joint Election and signed Section 431 Election in the form set out in Exhibit B hereto, accompanied by such aggregate Exercise Price and any Option Tax Liability and any Secondary NIC Liability.

5. Method of Payment . Payment of the aggregate Exercise Price and any Option Tax Liability and any Secondary NIC Liability will be by any of the following, or a combination thereof, at the election of Participant.


(a) cash;

(b) cheque; or

(c) consideration received by the Company under a formal cashless exercise program adopted by the Company in connection with the Plan.

6. Tax Obligations .

(a) Withholding . In the event that the Company determines that it or any Subsidiary is required to account to HM Revenue & Customs for the Option Tax Liability and any Secondary NIC Liability or to withhold any other tax as a result of the exercise of this Option, the Participant, as a condition to the exercise of the Option, shall make arrangements satisfactory to the Company to enable it or any Subsidiary to satisfy all withholding liabilities. The Participant shall also make arrangements satisfactory to the Company to enable it to satisfy any withholding requirements that may arise in connection with the vesting or disposition of Shares purchased by exercising this Option.

(b) Tax Consultation . Participant understands that he or she may suffer adverse tax consequences as a result of Participant’s purchase or disposition of the Shares. Participant represents that he or she will consult with any tax advisors Participant deems appropriate in connection with the purchase or disposition of the Shares and that Participant is not relying on the Company or any Affiliate for any tax advice.

(c) Section 431 Election . As a further condition of the exercise of this Option, the Participant shall have signed a Section 431 Election in the form set out in Exhibit B or in such other form as may be determined by HM Revenue & Customs from time to time.

(d) Employer’s National Insurance Charges . As a further condition of the exercise of an Option under the Plan the Participant shall join with the Company or any other company or person who is or becomes a Secondary Contributor in making a Joint Election which has been approved by HM Revenue & Customs, for the transfer of the whole of any Secondary NIC Liability.

(e) Participant’s Tax Indemnity .

(i) Indemnity . To the extent permitted by law, the Participant hereby agrees to indemnify and keep indemnified the Company, and the Company as trustee for and on behalf of any related corporation, for any Option Tax Liability and Secondary NIC Liability.

(ii) No Obligation to Issue Shares . The Company shall not be obliged to allot and issue any Shares or any interest in Shares pursuant to the exercise of this Option unless and until the Participant has paid to the Company such sum as is, in the opinion of the Company, sufficient to indemnify the Company in full against the Option Tax Liability and the Secondary NIC Liability, or the Participant has made such other arrangement as in the opinion of the Company will ensure that the full amount of any Option Tax Liability and any Secondary NIC Liability will be recovered from the Participant within such period as the Company may then determine.

 

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(iii) Right of Retention . In the absence of any such other arrangement being made, the Company shall have the right to retain out of the aggregate number of shares to which the Participant would have otherwise been entitled upon the exercise of this Option, such number of Shares as, in the opinion of the Company, will enable the Company to sell as agent for the Participant (at the best price which can reasonably expect to be obtained at the time of the sale) and to pay over to the Company sufficient monies out of the net proceeds of sale, after deduction of all fees, commissions and expenses incurred in relation to such sale, to satisfy the Participant’s liability under such indemnity.

(f) Code Section 409A . To the extent Participant is or becomes subject to U.S. Federal income taxation, this subsection (b) shall apply. Under Code Section 409A, an option that vests after December 31, 2004 (or that vested on or prior to such date but which was materially modified after October 3, 2004) that was granted with a per Share exercise price that is determined by the Internal Revenue Service (the “IRS”) to be less than the Fair Market Value of a Share on the date of grant (a “Discount Option”) or that covers other than “service recipient stock” (as defined under Code Section 409A) may be considered “deferred compensation.” An Option that is a Discount Option or that covers other than service recipient stock may result in (i) income recognition by Participant prior to the exercise of the option, (ii) an additional twenty percent (20%) U.S. Federal income tax, and (iii) potential penalty and interest charges. The Option may also result in additional state income, penalty and interest charges to the Participant. Participant acknowledges that the Company cannot and has not guaranteed that the IRS will agree that the per Share exercise price of this Option equals or exceeds the Fair Market Value of a Share on the Date of Grant or that the Shares covered by this Option will be classified as service recipient stock in a later examination. Participant agrees that if the IRS determines that the Option was granted with a per Share exercise price that was less than the Fair Market Value of a Share on the date of grant or covers other than service recipient stock, Participant will be solely responsible for Participant’s costs related to such a determination.

7. Acknowledgements .

(a) Participant acknowledges receipt of a copy of the Plan (including any applicable appendixes or sub-plans thereunder) and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions thereof. Participant has reviewed the Plan (including any applicable appendixes or sub-plans thereunder) and this Option Agreement in their entirety has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Option. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Option Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

(b) The Company (which may or may not be Participant’s Employer) is granting the Option. The Company will administer the Plan from outside Participant’s country of residence, and an United States law will govern all Options granted under the Plan. The Section 431 Election and the Joint Election shall be governed by the laws of England and Wales.

 

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(c) Participant acknowledges that benefits and rights provided under the Plan are wholly discretionary and, although provided by the Company, do not constitute regular or periodic payments. Unless otherwise required by Applicable Law, the benefits and rights provided under the Plan are not to be considered part of Participant’s salary or compensation for purposes of calculating any severance, resignation, redundancy or other end of service payments, vacation, bonuses, long-term service awards, indemnification, pension or retirement benefits, or any other payments, benefits or rights of any kind. Participant waives any and all rights to compensation or damages as a result of the termination of employment with the Company for any reason whatsoever insofar as those rights result or may result from: (i) the loss or diminution in value of such rights under the Plan, or (ii) Participant ceasing to have any rights under, or ceasing to be entitled to any rights under the Plan as a result of such termination.

(d) The grant of the Option, and any future grant of Options under the Plan is entirely voluntary, and at the complete discretion of the Company. Neither the grant of the Option nor any future grant of an Option by the Company will be deemed to create any obligation to grant any further Options, whether or not such a reservation is explicitly stated at the time of such a grant. The Company has the right, at any time to amend, suspend or terminate the Plan.

(e) The Plan will not be deemed to constitute, and will not be construed by Participant to constitute, part of the terms and conditions of employment, and the Company will not incur any liability of any kind to Participant as a result of any change or amendment, or any cancellation, of the Plan at any time.

(f) Participation in the Plan will not be deemed to constitute, and will not be deemed by Participant to constitute, an employment or employment relationship of any kind with the Company.

(g) In the event of termination of Participant’s employment (whether or not in breach of local employment laws), Participant’s right to receive the Option and vest in the Option under the Plan, if any, will terminate effective as of the date that Participant is no longer actively employed and will not be extended by any notice period mandated under local law (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); furthermore, in the event of termination of employment (whether or not in breach of local employment laws), Participant’s right to exercise the Option after termination of employment, if any, will be measured by the date of termination of Participant’s active employment and will not be extended by any notice period mandated under local law; the Administrator shall have the exclusive discretion to determine when Participant is no longer actively employed for purposes of his or her Option grant.

8. Data protection .

(a) By entering into this Option Agreement, and as a condition of the grant of the Option, Participant consents to the collection, use, and transfer of personal data as described in this paragraph to the full extent permitted by and in full compliance with applicable laws.

 

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(i) Participant understands that the Company and its Subsidiaries hold Data about the Participant for the purpose of managing and administering the Plan.

(ii) Participant further understands that the Company and/or its Subsidiaries will transfer Data among themselves as necessary for the purposes of implementation, administration, and management of Participant’s participation in the Plan, and that the Company and/or its Subsidiary may each further transfer Data to any Data Recipients.

(iii) Participant understands that these Data Recipients may be located in Participant’s country of residence or elsewhere, such as the United States. Participant authorises the Data Recipients to receive, possess, use, retain, and transfer Data in electronic or other form, for the purposes of implementing, administering, and managing Participant’s participation in the Plan, including any transfer of such Data, as may be required for the administration of the Plan and/or the subsequent holding of Shares on Participant’s behalf, to a broker or third party with whom the Shares acquired on exercise may be deposited. Where the transfer is to be to a destination outside the European Economic Area, the Company shall take reasonable steps to ensure that the Participant’s personal data continues to be adequately protected and securely held.

(iv) Participant understands that Participant may, at any time, review the Data, request that any necessary amendments be made to it, or withdraw Participant’s consent herein in writing by contacting the Company. Participant further understands that withdrawing consent may affect Participant’s ability to participate in the Plan.

9. English Language . Participant has received the terms and conditions of this Option Agreement and any other related communications, and Participant consents to having received these documents in English. If Participant has received this Option Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

10. Rights as Stockholder . Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant. After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.

11. No Guarantee of Continued Service . PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING EMPLOYED, BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF

 

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CONTINUED EMPLOYMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER.

12. Additional Terms

(a) Participant has no right to compensation or damages for any loss in respect of the Option where such loss arises (or is claimed to arise), in whole or in part, from the termination of Participant’s employment; or notice to terminate employment given by or to Participant. This exclusion of liability shall apply however termination of employment, or the giving of notice, is caused other than in a case where a competent tribunal or court, from which there can be no appeal (or which the relevant employing company has decided not to appeal), has found that the cessation of the Participant’s employment amounted to unfair or constructive dismissal of Participant and however compensation or damages may be claimed.

(b) Participant has no right to compensation or damages for any loss in respect of an Option where such loss arises (or is claimed to arise), in whole or in part, from any company ceasing to be a Subsidiary of the Company; or the transfer of any business from a Subsidiary of the Company to any person which is not a Subsidiary of the Company. This exclusion of liability shall apply however the change of status of the relevant company, or the transfer of the relevant business, is caused, and however compensation or damages may be claimed.

13. Address for Notices . Any notice to be given to the Company under the terms of this Award Agreement will be addressed to the Company, in care of Stock Administration at Bazaarvoice, Inc. at 3900 N. Capital of Texas Highway, Suite 300, Austin, Texas 78746, or at such other address as the Company may hereafter designate in writing.

14. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than on the Participant’s death only to the Participant’s Personal Representative and may be exercised during the lifetime of Participant only by Participant.

15. Binding Agreement . Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

16. Additional Conditions to Issuance of Stock . If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any applicable law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any applicable law or securities exchange and to obtain any such consent or approval of any such governmental authority. Assuming such compliance, for income tax purposes the Exercised Shares will be considered transferred to Participant on the date the Option is exercised with respect to such Exercised Shares.

 

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17. Plan Governs . This Award Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and not defined in this Award Agreement will have the meaning set forth in the Plan.

18. Administrator Authority . The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Shares subject to the Option have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to Options awarded under the Plan or future options that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Captions . Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

21. Agreement Severable . In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.

22. Modifications to the Agreement . This Award Agreement, the Plan, the Section 431 Election and the Joint Election constitute the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Award Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Award Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection to this Option.

23. Amendment, Suspension or Termination of the Plan . By accepting this Award, Participant expressly warrants that he or she has received an Option under the Plan, and has received, read and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.

 

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24. Governing Law . This Award Agreement will be governed by the laws of the State of Texas, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Option or this Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Texas, and agree that such litigation will be conducted in the courts of Travis County, Texas, or the federal courts for the United States for the Western District of Texas, and no other courts, where this Option is made and/or to be performed. The Section 431 Election and Joint Election shall be governed by the laws of England and Wales.

 

PARTICIPANT BAZAARVOICE, INC.

 

 

Signature By

 

 

Print Name Print Name

 

 

Title

 

Residence Address

 

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EXHIBIT B

SECTION 431 ELECTION

 

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Exhibit 10.5

UK SUB-PLAN TO THE

BAZAARVOICE, INC.

2012 EQUITY INCENTIVE PLAN

RESTRICTED STOCK UNIT AWARD AGREEMENT

Unless otherwise defined herein, the terms defined in the UK Sub-Plan to the Bazaarvoice, Inc. 2012 Equity Incentive Plan (the “Plan”) will have the same defined meanings in this Restricted Stock Unit Award Agreement (the “Award Agreement”).

 

I. NOTICE OF RESTRICTED STOCK UNIT GRANT

Participant Name:

Address:

You have been granted the right to receive an Award of Restricted Stock Units, subject to the terms and conditions of the Plan and this Award Agreement, as follows:

 

Grant Number

 

 
Date of Grant

 

Vesting Commencement Date

 

Total Number of Shares Granted

 

Vesting Schedule :

Subject to any acceleration provisions contained in the Plan or set forth below, the Restricted Stock Unit will vest in accordance with the following schedule:

[ insert vesting schedule ]

In the event Participant ceases to be a Service Provider for any or no reason before Participant vests in the Restricted Stock Unit, the Restricted Stock Unit and Participant’s right to acquire any Shares hereunder will immediately terminate.

By Participant’s signature and the signature of the representative of Bazaarvoice, Inc. (the “Company”) below, Participant and the Company agree that this Award of Restricted Stock Units is granted under and governed by the terms and conditions of the Plan and this Award Agreement, including the Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit A , the Stock Trading Plan for Mandatory Sale of Shares to Cover Tax Withholding Obligations attached as Exhibit B (the “Stock Trading Plan”), the Joint Election and the Section 431 Election, all of which are made a part of this document. Participant has reviewed the Plan and this Award Agreement in their entirety, has had an opportunity to obtain the advice of


counsel prior to executing this Award Agreement and fully understands all provisions of the Plan, Award Agreement, Joint Election and Section 431 Election. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan, Award Agreement, the Joint Election and the Section 431 Election. Participant further agrees to notify the Company upon any change in the residence address indicated below.

 

PARTICIPANT: BAZAARVOICE, INC.

 

 

Signature By

 

 

Print Name Title
Residence Address :

 

 

 

 

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EXHIBIT A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT

1. Grant of Restricted Stock Units . The Company hereby grants to the individual named in the UK Notice of Restricted Stock Unit Grant attached as Part I of this Award Agreement (the “Participant”) under the Plan an Award of Restricted Stock Units, subject to all of the terms and conditions in this Award Agreement and the Plan, which is incorporated herein by reference. Subject to Section 17 of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Award Agreement, the terms and conditions of the Plan will prevail.

2. Company’s Obligation to Pay . Each Restricted Stock Unit represents the right to receive a Share on the date it vests. Unless and until the Restricted Stock Units will have vested in the manner set forth in Section 3, Participant will have no right to payment of any such Restricted Stock Units. Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Unit will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company. Any Restricted Stock Units that vest in accordance with Sections 3 or 4 will be paid to Participant (or in the event of Participant’s death, to the Participant’s Personal Representative) in whole Shares, subject to Participant satisfying any applicable tax withholding obligations as set forth in Section 7. Subject to the provisions of Section 4, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the date that is two and one-half (2  1 2 ) months from the end of the Company’s tax year that includes the vesting date.

3. Vesting Schedule . Except as provided in Section 4, and subject to Section 5, the Restricted Stock Units awarded by this Award Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant. Restricted Stock Units scheduled to vest on a certain date or upon the occurrence of a certain condition will not vest in Participant in accordance with any of the provisions of this Award Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs.

4. Administrator Discretion . The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time, subject to the terms of the Plan. If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company), other than due to death , and if (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6)

 

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month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider, unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s Personal Representative as soon as practicable following his or her death. It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from time to time.

5. Forfeiture upon Termination of Status as a Service Provider . Notwithstanding any contrary provision of this Award Agreement, the balance of the Restricted Stock Units that have not vested as of the time of Participant’s termination as a Service Provider for any or no reason and Participant’s right to acquire any Shares hereunder will immediately terminate.

6. Death of Participant . Any distribution or delivery to be made to Participant under this Award Agreement will, if Participant is then deceased, be made to Participant’s Personal Representative. Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

7. Tax Obligations

(a) Withholding . In the event that the Company determines that it or any Subsidiary is required to account to HM Revenue & Customs for the Award Tax Liability and any Secondary NIC Liability or to withhold any other tax as a result of the vesting of this Award, the Participant, as a condition to the vesting of the Award, shall make arrangements satisfactory to the Company to enable it or any Subsidiary to satisfy all withholding liabilities. The Participant shall also make arrangements satisfactory to the Company to enable it to satisfy any withholding requirements that may arise in connection with the vesting or disposition of Shares purchased by exercising this Award.

(b) Tax Consultation . Participant understands that he or she may suffer adverse tax consequences as a result of Participant’s purchase or disposition of the Shares. Participant represents that he or she will consult with any tax advisors Participant deems appropriate in connection with the purchase or disposition of the Shares and that Participant is not relying on the Company or any Affiliate for any tax advice.

(c) Section 431 Election . As a further condition of the vesting of this Award, the Participant shall have signed a Section 431 Election in the form set out in Exhibit C or in such other form as may be determined by HM Revenue & Customs from time to time.

 

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(d) Employer’s National Insurance Charges . As a further condition of the vesting of an Award under the Plan the Participant shall join with the Company or any other company or person who is or becomes a Secondary Contributor in making a Joint Election which has been approved by HM Revenue & Customs, for the transfer of the whole of any Secondary NIC Liability.

(e) Participant’s Tax Indemnity .

(i) Indemnity . To the extent permitted by law, the Participant hereby agrees to indemnify and keep indemnified the Company, and the Company as trustee for and on behalf of any related corporation, for any Award Tax Liability and Secondary NIC Liability.

(ii) No Obligation to Issue Shares . The Company shall not be obliged to allot and issue any Shares or any interest in Shares pursuant to the vesting of this Award unless and until the Participant has paid to the Company such sum as is, in the opinion of the Company, sufficient to indemnify the Company in full against the Award Tax Liability and the Secondary NIC Liability, or the Participant has made such other arrangement as in the opinion of the Company will ensure that the full amount of any Award Tax Liability and any Secondary NIC Liability will be recovered from the Participant within such period as the Company may then determine.

(iii) Right of Retention . In the absence of any such other arrangement being made, the Company shall have the right to retain out of the aggregate number of shares to which the Participant would have otherwise been entitled upon the vesting of this Award, such number of Shares as, in the opinion of the Company, will enable the Company to sell as agent for the Participant (at the best price which can reasonably expect to be obtained at the time of the sale) and to pay over to the Company sufficient monies out of the net proceeds of sale, after deduction of all fees, commissions and expenses incurred in relation to such sale, to satisfy the Participant’s liability under such indemnity. By accepting this Award Agreement, you expressly consent to the sale of Shares to cover the Tax Obligations (and any associated broker or other fees) pursuant to Stock Trading Plan set forth in Exhibit B and agree and acknowledge that you may not satisfy them by any means other than such sale of Shares, unless required to do so by the Administrator or pursuant to the Administrator’s express written consen t

8. Acknowledgements .

(a) Participant acknowledges receipt of a copy of the Plan (including any applicable appendixes or sub-plans thereunder) and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Award of Restricted Stock Units subject to all of the terms and provisions thereof. Participant has reviewed the Plan (including any applicable appendixes or sub-plans thereunder), this Agreement, the Joint Election and the Section 431 Election in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of the Award. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

 

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(b) The Company (which may or may not be Participant’s Employer) is granting the Restricted Stock Units. The Company will administer the Plan from outside Participant’s country of residence, and United States law will govern all Restricted Stock Units granted under the Plan. The Section 431 Election and the Joint Election shall be governed by the laws of England and Wales.

(c) Participant acknowledges that benefits and rights provided under the Plan are wholly discretionary and, although provided by the Company, do not constitute regular or periodic payments. Unless otherwise required by Applicable Laws, the benefits and rights provided under the Plan are not to be considered part of Participant’s salary or compensation for purposes of calculating any severance, resignation, redundancy or other end of service payments, vacation, bonuses, long-term service awards, indemnification, pension or retirement benefits, or any other payments, benefits or rights of any kind. Participant waives any and all rights to compensation or damages as a result of the termination of employment with the Company for any reason whatsoever insofar as those rights result or may result from:

(i) the loss or diminution in value of such rights under the Plan, or

(ii) Participant ceasing to have any rights under, or ceasing to be entitled to any rights under the Plan as a result of such termination.

(d) The grant of the Restricted Stock Units, and any future grant of Restricted Stock Units under the Plan is entirely voluntary, and at the complete discretion of the Company. Neither the grant of the Restricted Stock Units nor any future grant of Restricted Stock Units by the Company will be deemed to create any obligation to grant any further Restricted Stock Units, whether or not such a reservation is explicitly stated at the time of such a grant. The Company has the right, at any time to amend, suspend or terminate the Plan.

(e) The Plan will not be deemed to constitute, and will not be construed by Participant to constitute, part of the terms and conditions of employment, and the Company will not incur any liability of any kind to Participant as a result of any change or amendment, or any cancellation, of the Plan at any time.

(f) Participation in the Plan will not be deemed to constitute, and will not be deemed by Participant to constitute, an employment or employment relationship of any kind with the Company.

10. Data protection .

(a) By entering into this Award Agreement, and as a condition of the grant of the Award, Participant consents to the collection, use, and transfer of personal data as described in this paragraph to the full extent permitted by and in full compliance with applicable laws.

 

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(b) Participant understands that the Company and its Subsidiaries hold Data about the Participant for the purpose of managing and administering the Plan.

(c) Participant further understands that the Company and/or its Subsidiaries will transfer Data among themselves as necessary for the purposes of implementation, administration, and management of Participant’s participation in the Plan, and that the Company and/or its Subsidiary may each further transfer Data to any Data Recipients.

(d) Participant understands that these Data Recipients may be located in Participant’s country of residence or elsewhere, such as the United States. Participant authorises the Data Recipients to receive, possess, use, retain, and transfer Data in electronic or other form, for the purposes of implementing, administering, and managing Participant’s participation in the Plan, including any transfer of such Data, as may be required for the administration of the Plan and/or the subsequent holding of Shares on Participant’s behalf, to a broker or third party with whom the Shares acquired on vesting may be deposited. Where the transfer is to be to a destination outside the European Economic Area, the Company shall take reasonable steps to ensure that the Participant’s personal data continues to be adequately protected and securely held.

(e) Participant understands that Participant may, at any time, review the Data, request that any necessary amendments be made to it, or withdraw Participant’s consent herein in writing by contacting the Company. Participant further understands that withdrawing consent may affect Participant’s ability to participate in the Plan.

11. English Language . Participant has received the terms and conditions of this Agreement and any other related communications, and Participant consents to having received these documents in English. If Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

12. Rights as Stockholder . Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant. After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.

13. No Guarantee of Continued Service . PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING EMPLOYED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN

 

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DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER.

13. Additional terms .

(a) Participant has no right to compensation or damages for any loss in respect of the Award where such loss arises (or is claimed to arise), in whole or in part, from the termination of Participant’s employment; or notice to terminate employment given by or to Participant. This exclusion of liability shall apply however termination of employment, or the giving of notice, is caused other than in a case where a competent tribunal or court, from which there can be no appeal (or which the relevant employing company has decided not to appeal), has found that the cessation of the Participant’s employment amounted to unfair or constructive dismissal of Participant and however compensation or damages may be claimed.

(b) Participant has no right to compensation or damages for any loss in respect of an Award where such loss arises (or is claimed to arise), in whole or in part, from any company ceasing to be a Subsidiary of the Company; or the transfer of any business from a Subsidiary of the Company to any person which is not a Subsidiary of the Company. This exclusion of liability shall apply however the change of status of the relevant company, or the transfer of the relevant business, is caused, and however compensation or damages may be claimed.

14. Address for Notices . Any notice to be given to the Company under the terms of this Award Agreement will be addressed to the Company, in care of Stock Administration at Bazaarvoice, Inc. at 3900 N. Capital of Texas Highway, Suite 300, Austin, Texas 78746, or at such other address as the Company may hereafter designate in writing.

15. Grant is Not Transferable . Except to the limited extent provided in Section 6, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

16. Binding Agreement . Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

17. Additional Conditions to Issuance of Stock . If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any

 

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governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. Where the Company determines that the delivery of the payment of any Shares will violate federal securities laws or other applicable laws, the Company will defer delivery until the earliest date at which the Company reasonably anticipates that the delivery of Shares will no longer cause such violation. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority.

18. Plan Governs . This Award Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and not defined in this Award Agreement will have the meaning set forth in the Plan.

19. Administrator Authority . The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

20. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to Restricted Stock Units awarded under the Plan or future Restricted Stock Units that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any on-line or electronic system established and maintained by the Company or another third party designated by the Company.

21. Captions . Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

22. Agreement Severable . In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.

23. Modifications to the Agreement . This Award Agreement, the Joint Election and the Section 431 Election constitute the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Award Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Award Agreement or the Plan can be made only in an express written

 

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contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection to this Award of Restricted Stock Units.

24. Amendment, Suspension or Termination of the Plan . By accepting this Award, Participant expressly warrants that he or she has received an Award of Restricted Stock Units under the Plan, and has received, read and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.

25. Governing Law . This Award Agreement will be governed by the laws of the State of Texas, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Award of Restricted Stock Units or this Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Texas , and agree that such litigation will be conducted in the courts of Travis County, Texas , or the federal courts for the United States for the Western District of Texas no other courts, where this Award of Restricted Stock Units is made and/or to be performed. The Section 431 Election and Joint Election shall be governed by the laws of England and Wales.

EXHIBIT B

STOCK TRADING PLAN FOR MANDATORY SALE OF SHARES TO COVER

TAX WITHHOLDING OBLIGATIONS

By accepting the Award of Restricted Stock Units, I am adopting and entering into this stock trading plan (the “Sales Plan”) so that I may receive the necessary proceeds to satisfy any requirements to pay the minimum income taxes, employment taxes, social security taxes, social

 

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insurance, payroll taxes, contributions, payment on account obligations, national taxes and other applicable taxes and payments (collectively, “Taxes”) required to be withheld by Bazaarvoice, Inc. (the “Company”) (or the parent or subsidiary of the Company employing me) on my behalf if and when such tax withholding obligations arise as a result of the grant of the Award of Restricted Stock Units or any other grant by the Company to me of any restricted stock units, shares of restricted stock or performance shares. I agree and acknowledge that I am not selling shares of Company common stock (“Shares”) on the basis of or while aware of material nonpublic information or that such sales evidence my awareness of material nonpublic information or information at variance with the Company’s statements to investors.

1. Recitals .

(a) I intend for this Sales Plan to comply with the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Therefore, all provisions hereof will be interpreted consistent with Rule 10b5-1 and will be automatically modified to the extent necessary to comply therewith.

(b) I am establishing this Sales Plan in order to permit the orderly disposition of a portion of the Shares that I acquired (or will acquire) pursuant to an award of restricted stock units, restricted stock or performance shares (each, an “Equity Award”). The Shares are being sold to provide the necessary proceeds to satisfy any Taxes if and when any tax withholding obligations arise, as well any broker or other fees associated with such sales. By adopting and entering into this Sales Plan, I agree and acknowledge that I may not satisfy such Taxes and associated broker and other fees by any means other than the sale of Shares pursuant to the terms and conditions of this Sales Plan. This Sales Plan will apply to the mandatory sale of Shares under all future Equity Awards received by me from the Company.

(c) Unless otherwise defined herein, the terms in this Sales Plan will have the same defined meanings as in the Company’s 2012 Equity Incentive Plan (the “Plan”).

2. Representations, Warranties and Covenants . I hereby represent, warrant and covenant that:

(a) I am not aware of any material nonpublic information concerning the Company or its securities. I am entering into this Sales Plan in good faith and not as part of a plan or scheme to evade compliance with the United States federal securities laws.

(b) Once vested, the Shares to be sold under this Sales Plan will be owned free and clear by me and are not subject to any liens, security interests or other encumbrances or limitations on disposition other than those imposed by Rule 144 under the Securities Act of 1933, as amended.

(c) If I am an executive officer or director of the Company, I acknowledge that any filings required under Section 16 of the Exchange Act are my sole responsibility.

 

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(d) I am aware that in order for this Sales Plan to constitute a plan pursuant to Rule 10b5-1(c) of the Exchange Act, I must not enter into or alter a corresponding or hedging transaction with respect to the Shares.

(e) I will not directly or indirectly communicate any information relating to the Company or the Company’s securities to any employee of the Broker (defined below) or its affiliates who is directly or indirectly involved in executing this Sales Plan at any time while this Sales Plan is in effect.

3. Implementation of the Plan .

(a) I hereby appoint the Company to appoint a broker (the “Broker”) to sell Shares pursuant to the terms and conditions set forth below.

(b) The Broker is authorized to begin selling Shares pursuant to this Sales Plan commencing on the date that the first Shares under the Equity Award vest or at the time a tax withholding obligation arises with respect to the Equity Award. The Broker will sell such number of Shares as will be required to satisfy (i) any applicable Taxes in accordance with my then current applicable withholding rate (including any supplemental rate), and (ii) any associated broker or other fees.

(c) I understand that the Broker may not be able to effect a sale due to a market disruption or a legal, regulatory or contractual restriction applicable to the Broker or any other event or circumstance (a “Blackout”). I also understand that even in the absence of a Blackout, the Broker may be unable to effect sales consistent with ordinary principles of best execution, due to insufficient volume of trading, or other market factors in effect on the date of a sale. I agree that neither the Company and its affiliates and their directors, officers, employees, and agents nor the Broker and its affiliates and their directors, officers, employees, and agents (collectively, “Persons”) will have any liability whatsoever to me for any action taken or omitted to be taken in connection with the Sales Plan, the making of any sale, or any amendment, modification or termination of this Sales Plan, unless such liability is determined in a non-appealable order of a court of competent jurisdiction to have resulted solely from the gross negligence, willful misconduct or bad faith of the Person. I further agree to hold each Person free and harmless from any and all losses, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) incurred or sustained by such Person in connection with or arising out of any suit, action or proceeding relating to this Sales Plan, any sale, or any amendment, modification or termination of this Sales Plan (each an “Action”) and to reimburse each Person for its expenses, as they are incurred, in connection with any Action, unless such loss, damage, liability or expense is determined in a non-appealable order of a court of competent jurisdiction to be solely the result of such Person’s gross negligence, willful misconduct, or bad faith.

(d) The Company is authorized to make special handling trade services available to me through the Broker (by or through its affiliates and/or other third party broker dealers designated by the Broker), under which the Shares may be aggregated as one order with Shares in all other participants’ Sales Plans, thereby resulting in non-preferential pricing of order execution and an average sale execution price of Shares under all participants’ Sales Plans. I

 

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understand that the Company may suspend the special handling trade services in its sole discretion and that the Company or the Broker may terminate the special handling trade services agreement at any time.

4. Termination . This Sales Plan will terminate upon the last day of my service with the Company, or Company subsidiary employing me. This Sales Plan may not be terminated, modified or amended at any time without the prior approval of the Administrator.

 

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EXHIBIT C

SECTION 431 ELECTION

 

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Exhibit 10.6

[International]

BAZAARVOICE, INC.

2012 EQUITY INCENTIVE PLAN

RESTRICTED STOCK UNIT AWARD AGREEMENT

Unless otherwise defined herein, the terms defined in the Bazaarvoice, Inc. 2012 Equity Incentive Plan (the “Plan”) will have the same defined meanings in this Restricted Stock Unit Award Agreement (the “Award Agreement”).

 

I. NOTICE OF RESTRICTED STOCK UNIT GRANT

Participant Name:

Address:

You have been granted the right to receive an Award of Restricted Stock Units, subject to the terms and conditions of the Plan and this Award Agreement, as follows:

 

Grant Number

 

Date of Grant

 

Vesting Commencement Date

 

Total Number of Shares Granted

 

Vesting Schedule :

Subject to any acceleration provisions contained in the Plan or set forth below, the Restricted Stock Unit will vest in accordance with the following schedule:

[ insert vesting schedule ]

In the event Participant ceases to be a Service Provider for any or no reason before Participant vests in the Restricted Stock Unit, the Restricted Stock Unit and Participant’s right to acquire any Shares hereunder will immediately terminate.

 

LOGO


By Participant’s signature and the signature of the representative of Bazaarvoice, Inc. (the “Company”) below, Participant and the Company agree that this Award of Restricted Stock Units is granted under and governed by the terms and conditions of the Plan and this Award Agreement, including the Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit A and the Stock Trading Plan for Mandatory Sale of Shares to Cover Tax Withholding Obligations attached as Exhibit B (the “Stock Trading Plan”), all of which are made a part of this document. Participant has reviewed the Plan and this Award Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Award Agreement and fully understands all provisions of the Plan and Award Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Award Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

 

PARTICIPANT: BAZAARVOICE, INC.

 

 

Signature By

 

 

Print Name Title
Residence Address :

 

 

 

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EXHIBIT A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT

1. Grant of Restricted Stock Units . The Company hereby grants to the individual named in the Notice of Restricted Stock Unit Grant attached as Part I of this Award Agreement (the “Participant”) under the Plan an Award of Restricted Stock Units, subject to all of the terms and conditions in this Award Agreement and the Plan, which is incorporated herein by reference. Subject to Section 18 of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Award Agreement, the terms and conditions of the Plan will prevail.

2. Company’s Obligation to Pay . Each Restricted Stock Unit represents the right to receive a Share on the date it vests. Unless and until the Restricted Stock Units will have vested in the manner set forth in Section 3, Participant will have no right to payment of any such Restricted Stock Units. Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Unit will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company. Any Restricted Stock Units that vest in accordance with Sections 3 or 4 will be paid to Participant (or in the event of Participant’s death, to his or her estate) in whole Shares, subject to Participant satisfying any applicable tax withholding obligations as set forth in Section 7. Subject to the provisions of Section 4, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the date that is two and one-half (2  1 2 ) months from the end of the Company’s tax year that includes the vesting date.

3. Vesting Schedule . Except as provided in Section 4, and subject to Section 5, the Restricted Stock Units awarded by this Award Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant. Restricted Stock Units scheduled to vest on a certain date or upon the occurrence of a certain condition will not vest in Participant in accordance with any of the provisions of this Award Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs.

4. Administrator Discretion . The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time, subject to the terms of the Plan. If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company), other than due to death , and if (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6)

 

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month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider, unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death. It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from time to time.

5. Forfeiture upon Termination of Status as a Service Provider . Notwithstanding any contrary provision of this Award Agreement, the balance of the Restricted Stock Units that have not vested as of the time of Participant’s termination as a Service Provider for any or no reason and Participant’s right to acquire any Shares hereunder will immediately terminate.

6. Death of Participant . Any distribution or delivery to be made to Participant under this Award Agreement will, if Participant is then deceased, be made to Participant’s designated beneficiary, or if no beneficiary survives Participant, the administrator or executor of Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

7. Withholding of Taxes .

(a) General . Notwithstanding any contrary provision of this Award Agreement, no certificate representing the Shares will be issued to Participant, unless and until satisfactory arrangements (as determined by the Administrator) will have been made by Participant with respect to the payment of income, employment and other taxes which the Company determines must be withheld with respect to such Shares. If Participant fails to make satisfactory arrangements for the payment of any required tax withholding obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, as determined by the Administrator in its sole discretion, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.

(b) Default Method of Tax Withholding . The minimum federal, state, and local and foreign income, social insurance, employment and any other applicable taxes which the Company determines must be withheld with respect to and the Restricted Stock Units subject to this Award Agreement (“Tax Withholding Obligation”) will be satisfied by Shares being sold on your behalf pursuant to such procedures as the Company may specify from time to time (it being understood that the Shares to be sold must have vested pursuant to the terms of this Agreement and the Plan). The proceeds from such sale will be used to satisfy your Tax Withholding Obligation (and any associated broker or other fees) arising with respect to your Restricted Stock

 

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Units. Only whole Shares will be sold to satisfy any Tax Withholding Obligation. Any proceeds from the sale of Shares in excess of the Tax Withholding Obligation (and any associated broker or other fees) will be paid to you in accordance with procedures the Company may specify from time to time. By accepting this Award Agreement, you expressly consent to the sale of Shares to cover the Tax Withholding Obligations (and any associated broker or other fees) pursuant to Stock Trading Plan set forth in Exhibit B and agree and acknowledge that you may not satisfy them by any means other than such sale of Shares, unless required to do so by the Administrator or pursuant to the Administrator’s express written consent.

8. Acknowledgements .

(a) Participant acknowledges receipt of a copy of the Plan (including any applicable appendixes or sub-plans thereunder) and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Award of Restricted Stock Units subject to all of the terms and provisions thereof. Participant has reviewed the Plan (including any applicable appendixes or sub-plans thereunder) and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of the Award. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

(b) The Company (which may or may not be Participant’s Employer) is granting the Restricted Stock Units. The Company will administer the Plan from outside Participant’s country of residence, and United States law will govern all Restricted Stock Units granted under the Plan.

(c) Participant acknowledges that benefits and rights provided under the Plan are wholly discretionary and, although provided by the Company, do not constitute regular or periodic payments. Unless otherwise required by Applicable Laws, the benefits and rights provided under the Plan are not to be considered part of Participant’s salary or compensation for purposes of calculating any severance, resignation, redundancy or other end of service payments, vacation, bonuses, long-term service awards, indemnification, pension or retirement benefits, or any other payments, benefits or rights of any kind. Participant waives any and all rights to compensation or damages as a result of the termination of employment with the Company for any reason whatsoever insofar as those rights result or may result from:

(i) the loss or diminution in value of such rights under the Plan, or

(ii) Participant ceasing to have any rights under, or ceasing to be entitled to any rights under the Plan as a result of such termination.

(d) The grant of the Restricted Stock Units, and any future grant of Restricted Stock Units under the Plan is entirely voluntary, and at the complete discretion of the Company. Neither the grant of the Restricted Stock Units nor any future grant of Restricted Stock Units by the Company will be deemed to create any obligation to grant any further Restricted Stock Units, whether or not such a reservation is explicitly stated at the time of such a grant. The Company has the right, at any time to amend, suspend or terminate the Plan.

 

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(e) The Plan will not be deemed to constitute, and will not be construed by Participant to constitute, part of the terms and conditions of employment, and the Company will not incur any liability of any kind to Participant as a result of any change or amendment, or any cancellation, of the Plan at any time.

(f) Participation in the Plan will not be deemed to constitute, and will not be deemed by Participant to constitute, an employment or labor relationship of any kind with the Company.

9. Data Privacy . By entering into this Agreement, and as a condition of the grant of the Restricted Stock Units, Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this document by and among, as applicable, the Employer, and Company and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer, its Parent or any Subsidiary may hold certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all Restricted Stock Units or any other entitlement to Shares awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor, for the purpose of implementing, administering and managing the Plan (“Data”). Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in Participant’s country or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting Participant’s local human resources representative. Participant authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom Participant may elect to deposit any shares of stock acquired upon settlement of the Restricted Stock Units. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing Participant’s local human resources representative. Participant understands, however, that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.

 

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10. English Language . Participant has received the terms and conditions of this Agreement and any other related communications, and Participant consents to having received these documents in English. If Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

11. Rights as Stockholder . Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant. After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.

12. No Guarantee of Continued Service . PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

13. Address for Notices . Any notice to be given to the Company under the terms of this Award Agreement will be addressed to the Company, in care of Stock Administration at Bazaarvoice, Inc. at 3900 N. Capital of Texas Highway, Suite 300, Austin, Texas 78746, or at such other address as the Company may hereafter designate in writing.

14. Grant is Not Transferable . Except to the limited extent provided in Section 6, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

 

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15. Binding Agreement . Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

16. Additional Conditions to Issuance of Stock . If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. Where the Company determines that the delivery of the payment of any Shares will violate federal securities laws or other applicable laws, the Company will defer delivery until the earliest date at which the Company reasonably anticipates that the delivery of Shares will no longer cause such violation. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority.

17. Plan Governs . This Award Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and not defined in this Award Agreement will have the meaning set forth in the Plan.

18. Administrator Authority . The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to Restricted Stock Units awarded under the Plan or future Restricted Stock Units that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Captions . Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

21. Agreement Severable . In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.

 

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22. Modifications to the Agreement . This Award Agreement constitutes the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Award Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Award Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection to this Award of Restricted Stock Units.

23. Amendment, Suspension or Termination of the Plan . By accepting this Award, Participant expressly warrants that he or she has received an Award of Restricted Stock Units under the Plan, and has received, read and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.

24. Governing Law . This Award Agreement will be governed by the laws of the State of Texas, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Award of Restricted Stock Units or this Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Texas , and agree that such litigation will be conducted in the courts of Travis County, Texas , or the federal courts for the United States for the Western District of Texas no other courts, where this Award of Restricted Stock Units is made and/or to be performed.

 

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EXHIBIT B

STOCK TRADING PLAN FOR MANDATORY SALE OF SHARES TO COVER TAX WITHHOLDING OBLIGATIONS

By accepting the Award of Restricted Stock Units, I am adopting and entering into this stock trading plan (the “Sales Plan”) so that I may receive the necessary proceeds to satisfy any requirements to pay the minimum income taxes, employment taxes, social security taxes, social insurance, payroll taxes, contributions, payment on account obligations, national taxes and other applicable taxes and payments (collectively, “Taxes”) required to be withheld by Bazaarvoice, Inc. (the “Company”) (or the parent or subsidiary of the Company employing me) on my behalf if and when such tax withholding obligations arise as a result of the grant of the Award of Restricted Stock Units or any other grant by the Company to me of any restricted stock units, shares of restricted stock or performance shares. I agree and acknowledge that I am not selling shares of Company common stock (“Shares”) on the basis of or while aware of material nonpublic information or that such sales evidence my awareness of material nonpublic information or information at variance with the Company’s statements to investors.

1. Recitals .

(a) I intend for this Sales Plan to comply with the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Therefore, all provisions hereof will be interpreted consistent with Rule 10b5-1 and will be automatically modified to the extent necessary to comply therewith.

(b) I am establishing this Sales Plan in order to permit the orderly disposition of a portion of the Shares that I acquired (or will acquire) pursuant to an award of restricted stock units, restricted stock or performance shares (each, an “Equity Award”). The Shares are being sold to provide the necessary proceeds to satisfy any Taxes if and when any tax withholding obligations arise, as well any broker or other fees associated with such sales. By adopting and entering into this Sales Plan, I agree and acknowledge that I may not satisfy such Taxes and associated broker and other fees by any means other than the sale of Shares pursuant to the terms and conditions of this Sales Plan. This Sales Plan will apply to the mandatory sale of Shares under all future Equity Awards received by me from the Company.

(c) Unless otherwise defined herein, the terms in this Sales Plan will have the same defined meanings as in the Company’s 2012 Equity Incentive Plan (the “Plan”).

 

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2. Representations, Warranties and Covenants . I hereby represent, warrant and covenant that:

(a) I am not aware of any material nonpublic information concerning the Company or its securities. I am entering into this Sales Plan in good faith and not as part of a plan or scheme to evade compliance with the United States federal securities laws.

(b) Once vested, the Shares to be sold under this Sales Plan will be owned free and clear by me and are not subject to any liens, security interests or other encumbrances or limitations on disposition other than those imposed by Rule 144 under the Securities Act of 1933, as amended.

(c) If I am an executive officer or director of the Company, I acknowledge that any filings required under Section 16 of the Exchange Act are my sole responsibility.

(d) I am aware that in order for this Sales Plan to constitute a plan pursuant to Rule 10b5-1(c) of the Exchange Act, I must not enter into or alter a corresponding or hedging transaction with respect to the Shares.

(e) I will not directly or indirectly communicate any information relating to the Company or the Company’s securities to any employee of the Broker (defined below) or its affiliates who is directly or indirectly involved in executing this Sales Plan at any time while this Sales Plan is in effect.

3. Implementation of the Plan .

(a) I hereby appoint the Company to appoint a broker (the “Broker”) to sell Shares pursuant to the terms and conditions set forth below.

(b) The Broker is authorized to begin selling Shares pursuant to this Sales Plan commencing on the date that the first Shares under the Equity Award vest or at the time a tax withholding obligation arises with respect to the Equity Award. The Broker will sell such number of Shares as will be required to satisfy (i) any applicable Taxes in accordance with my then current applicable withholding rate (including any supplemental rate), and (ii) any associated broker or other fees.

(c) I understand that the Broker may not be able to effect a sale due to a market disruption or a legal, regulatory or contractual restriction applicable to the Broker or any other event or circumstance (a “Blackout”). I also understand that even in the absence of a Blackout, the Broker may be unable to effect sales consistent with ordinary principles of best execution, due to insufficient volume of trading, or other market factors in effect on the date of a sale. I agree that neither the Company and its affiliates and their directors, officers, employees, and agents nor the Broker and its affiliates and their directors, officers, employees, and agents (collectively, “Persons”) will have any liability whatsoever to me for any action taken or omitted to be taken in connection with the Sales Plan, the making of any sale, or any amendment, modification or termination of this Sales Plan, unless such liability is determined in a non-appealable order of a court of competent jurisdiction to have resulted solely from the gross

 

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negligence, willful misconduct or bad faith of the Person. I further agree to hold each Person free and harmless from any and all losses, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) incurred or sustained by such Person in connection with or arising out of any suit, action or proceeding relating to this Sales Plan, any sale, or any amendment, modification or termination of this Sales Plan (each an “Action”) and to reimburse each Person for its expenses, as they are incurred, in connection with any Action, unless such loss, damage, liability or expense is determined in a non-appealable order of a court of competent jurisdiction to be solely the result of such Person’s gross negligence, willful misconduct, or bad faith.

(d) The Company is authorized to make special handling trade services available to me through the Broker (by or through its affiliates and/or other third party broker dealers designated by the Broker), under which the Shares may be aggregated as one order with Shares in all other participants’ Sales Plans, thereby resulting in non-preferential pricing of order execution and an average sale execution price of Shares under all participants’ Sales Plans. I understand that the Company may suspend the special handling trade services in its sole discretion and that the Company or the Broker may terminate the special handling trade services agreement at any time.

4. Termination . This Sales Plan will terminate upon the last day of my service with the Company, or Company subsidiary employing me. This Sales Plan may not be terminated, modified or amended at any time without the prior approval of the Administrator.

 

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Exhibit 10.7

[International]