ý
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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22-2267658
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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111 Nueces Street, Austin TX
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78701
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(Address of Principal Executive Offices)
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(Zip Code)
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Large Accelerated Filer
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¨
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Accelerated Filer
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ý
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Non-accelerated Filer
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¨
(do not check if smaller reporting company)
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Smaller Reporting Company
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¨
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Emerging Growth Company
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¨
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Item 1.
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Item 2.
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Item 3.
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Item 4.
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Item 1.
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Item 1 (A).
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Item 2.
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Item 3.
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Item 4.
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Item 5.
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September 30, 2018
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March 31, 2018
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||||
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(Unaudited)
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ASSETS
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Current assets
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||||
Cash
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$
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8,349
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$
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12,720
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Restricted cash
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431
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331
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Accounts receivable, net of allowances of $866 and $512, respectively
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20,862
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17,050
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Deposits
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152
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151
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Prepaid expenses and other current assets
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716
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750
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Current assets held for disposal
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3,672
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8,753
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Total current assets
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34,182
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39,755
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Property and equipment, net
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3,053
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2,757
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Deferred tax assets
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655
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596
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Intangible assets, net
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561
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1,231
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Goodwill
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42,266
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42,268
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TOTAL ASSETS
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$
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80,717
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$
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86,607
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LIABILITIES AND STOCKHOLDERS' EQUITY
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||||
Current liabilities
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||||
Accounts payable
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$
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26,752
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$
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19,895
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Accrued license fees and revenue share
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5,717
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8,232
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Accrued compensation
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581
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2,966
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Short-term debt, net of debt issuance costs of $120 and $205, respectively
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1,480
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1,445
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Other current liabilities
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1,477
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1,142
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Current liabilities held for disposal
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5,915
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12,726
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Total current liabilities
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41,922
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46,406
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Convertible notes, net of debt issuance costs and discounts of $1,482 and $1,827, respectively
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3,418
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3,873
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Convertible note embedded derivative liability
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1,728
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4,676
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Warrant liability
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1,484
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3,980
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Total liabilities
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48,552
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58,935
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Stockholders' equity
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Preferred stock
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Series A convertible preferred stock at $0.0001 par value; 2,000,000 shares authorized, 100,000 issued and outstanding (liquidation preference of $1,000)
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100
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100
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Common stock
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$0.0001 par value: 200,000,000 shares authorized; 78,214,570 issued and 77,480,114 outstanding at September 30, 2018; 76,843,278 issued and 76,108,822 outstanding at March 31, 2018
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10
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10
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Additional paid-in capital
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320,361
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318,066
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Treasury stock (754,599 shares at September 30, 2018 and March 31, 2018)
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(71
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)
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(71
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)
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Accumulated other comprehensive loss
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(323
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)
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(325
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)
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Accumulated deficit
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(287,912
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)
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(290,108
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)
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Total stockholders' equity
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32,165
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27,672
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY
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$
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80,717
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$
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86,607
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Three months ended September 30,
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Six months ended September 30,
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2018
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2017
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2018
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2017
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Net revenues
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$
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23,854
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$
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15,905
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$
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45,966
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$
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31,058
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Cost of revenues
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||||||||
License fees and revenue share
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15,802
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9,865
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31,018
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19,457
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Other direct cost of revenues
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508
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430
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1,015
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839
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Total cost of revenues
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16,310
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10,295
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32,033
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20,296
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Gross profit
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7,544
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5,610
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13,933
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10,762
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Operating expenses
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Product development
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2,637
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2,241
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5,746
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4,415
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Sales and marketing
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1,913
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1,284
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3,749
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2,421
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General and administrative
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2,679
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3,551
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5,383
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6,909
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Total operating expenses
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7,229
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7,076
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14,878
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13,745
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Income / (loss) from operations
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315
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(1,466
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)
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(945
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)
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(2,983
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)
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Interest and other income / (expense), net
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Interest expense
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(135
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)
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(662
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)
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(454
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)
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(1,369
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)
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Foreign exchange transaction gain / (loss)
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1
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(47
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)
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9
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(110
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)
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Change in fair value of convertible note embedded derivative liability
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952
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(3,344
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)
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2,572
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(4,652
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)
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Change in fair value of warrant liability
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926
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(1,164
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)
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2,496
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(1,628
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)
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Loss on extinguishment of debt
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(15
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)
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(882
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)
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(15
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)
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(882
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)
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Other income / (expense)
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1
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78
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(126
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)
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81
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Total interest and other income / (expense), net
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1,730
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(6,021
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)
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4,482
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(8,560
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)
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||||
Income / (loss) from continuing operations before income taxes
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2,045
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(7,487
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)
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3,537
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(11,543
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)
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||||
Income tax benefit
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(23
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)
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(884
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)
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(59
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)
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(853
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)
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||||
Net income / (loss) from continuing operations, net of taxes
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2,068
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(6,603
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)
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3,596
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(10,690
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)
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Income / (loss) from discontinued operations
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(356
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)
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145
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(1,400
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)
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57
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|
||||
Net income / (loss) from discontinued operations, net of taxes
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(356
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)
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145
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(1,400
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)
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57
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|
||||
Net income / (loss)
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$
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1,712
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|
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$
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(6,458
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)
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$
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2,196
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|
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$
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(10,633
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)
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Foreign currency translation adjustment
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—
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|
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(5
|
)
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—
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|
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(5
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)
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||||
Comprehensive income / (loss)
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$
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1,712
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|
|
$
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(6,463
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)
|
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$
|
2,196
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|
|
$
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(10,638
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)
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Basic and diluted net income / (loss) per common share
|
|
|
|
|
|
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||||||||
Continuing operations
|
|
0.03
|
|
|
(0.10
|
)
|
|
0.05
|
|
|
(0.16
|
)
|
||||
Discontinued operations
|
|
(0.01
|
)
|
|
—
|
|
|
(0.02
|
)
|
|
—
|
|
||||
Net income / (loss)
|
|
0.02
|
|
|
(0.10
|
)
|
|
0.03
|
|
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(0.16
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)
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||||
Weighted-average common shares outstanding, basic
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|
77,193
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|
|
66,846
|
|
|
76,644
|
|
|
66,723
|
|
||||
Weighted-average common shares outstanding, diluted
|
|
78,780
|
|
|
66,846
|
|
|
79,019
|
|
|
66,723
|
|
|
|
Six months ended September 30,
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||||||
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2018
|
|
2017
|
||||
Cash flows from operating activities
|
|
|
|
|
|
|
||
Net income / (loss) from continuing operations, net of taxes
|
|
$
|
3,596
|
|
|
$
|
(10,690
|
)
|
Adjustments to reconcile net income / (loss) to net cash used in operating activities:
|
|
|
|
|
||||
Depreciation and amortization
|
|
1,436
|
|
|
1,289
|
|
||
Loss on disposal of fixed assets
|
|
—
|
|
|
—
|
|
||
Change in allowance for doubtful accounts
|
|
354
|
|
|
204
|
|
||
Amortization of debt discount and debt issuance costs
|
|
188
|
|
|
680
|
|
||
Stock-based compensation
|
|
942
|
|
|
1,360
|
|
||
Stock-based compensation for services rendered
|
|
208
|
|
|
150
|
|
||
Change in fair value of convertible note embedded derivative liability
|
|
(2,572
|
)
|
|
4,652
|
|
||
Change in fair value of warrant liability
|
|
(2,496
|
)
|
|
1,628
|
|
||
Loss on extinguishment of debt
|
|
15
|
|
|
882
|
|
||
(Increase) / decrease in assets:
|
|
|
|
|
||||
Accounts receivable
|
|
(4,166
|
)
|
|
(5,482
|
)
|
||
Deposits
|
|
—
|
|
|
4
|
|
||
Deferred tax assets
|
|
(59
|
)
|
|
(336
|
)
|
||
Prepaid expenses and other current assets
|
|
33
|
|
|
52
|
|
||
Increase / (decrease) in liabilities:
|
|
|
|
|
||||
Accounts payable
|
|
6,857
|
|
|
4,699
|
|
||
Accrued license fees and revenue share
|
|
(2,515
|
)
|
|
828
|
|
||
Accrued compensation
|
|
(2,378
|
)
|
|
665
|
|
||
Accrued interest
|
|
3
|
|
|
(24
|
)
|
||
Other current liabilities
|
|
408
|
|
|
(73
|
)
|
||
Other non-current liabilities
|
|
(11
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)
|
|
(529
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)
|
||
Net cash used in operating activities - continuing operations
|
|
(157
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)
|
|
(41
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)
|
||
Net cash used in operating activities - discontinued operations
|
|
(3,098
|
)
|
|
(1,339
|
)
|
||
Net cash used in operating activities
|
|
(3,255
|
)
|
|
(1,380
|
)
|
||
|
|
|
|
|
||||
Cash flows from investing activities
|
|
|
|
|
|
|
||
Capital expenditures
|
|
(1,085
|
)
|
|
(748
|
)
|
||
Net cash used in investing activities - continuing operations
|
|
(1,085
|
)
|
|
(748
|
)
|
||
Net cash used in investing activities - discontinued operations
|
|
(41
|
)
|
|
(75
|
)
|
||
Net cash used in investing activities
|
|
(1,126
|
)
|
|
(823
|
)
|
||
|
|
|
|
|
||||
Cash flows from financing activities
|
|
|
|
|
|
|
||
Proceeds from short-term borrowings
|
|
—
|
|
|
2,500
|
|
||
Options exercised
|
|
160
|
|
|
19
|
|
||
Repayment of debt obligations
|
|
(50
|
)
|
|
(247
|
)
|
||
Payment of debt issuance costs
|
|
—
|
|
|
(346
|
)
|
||
Net cash provided by financing activities
|
|
110
|
|
|
1,926
|
|
||
|
|
|
|
|
||||
Effect of exchange rate changes on cash
|
|
—
|
|
|
(5
|
)
|
||
|
|
|
|
|
||||
Net change in cash
|
|
(4,271
|
)
|
|
(282
|
)
|
||
|
|
|
|
|
||||
Cash and restricted cash, beginning of period
|
|
13,051
|
|
|
6,480
|
|
||
|
|
|
|
|
||||
Cash and restricted cash, end of period
|
|
$
|
8,780
|
|
|
$
|
6,198
|
|
|
|
|
|
|
||||
Supplemental disclosure of cash flow information
|
|
|
|
|
|
|
||
Interest paid
|
|
$
|
264
|
|
|
$
|
283
|
|
Supplemental disclosure of non-cash financing activities
|
|
|
|
|
||||
Common stock of the Company issued for extinguishment of debt
|
|
$
|
948
|
|
|
$
|
7,187
|
|
•
|
Ignite™ ("Ignite"), a mobile device management platform with targeted application distribution capabilities, and
|
•
|
Other products and professional services directly related to the Ignite platform.
|
•
|
Ignite, a mobile application management software that enables mobile operators and OEMs to control, manage, and monetize applications installed at the time of activation and over the life of a mobile device. Ignite allows mobile operators to personalize the application activation experience for customers and monetize their home screens via Cost-Per-Install or CPI arrangements, Cost-Per-Placement or CPP arrangements, and/or Cost-Per-Action or CPA arrangements with third party advertisers. There are several different delivery methods available to operators and OEMs on first boot of the device: Wizard, Silent, or Software Development Kit ("SDK"). Optional notification features are available throughout the life-cycle of the device, providing operators additional opportunity for advertising revenue streams.
|
•
|
Other products and professional services directly related to the Ignite platform.
|
|
|
Three months ended September 30,
|
|
Six months ended September 30,
|
||||
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Net revenues
|
|
$7
|
|
$11,986
|
|
$3,877
|
|
$22,953
|
Total cost of revenues
|
|
(4)
|
|
10,234
|
|
3,070
|
|
19,736
|
Gross profit
|
|
11
|
|
1,752
|
|
807
|
|
3,217
|
Product development
|
|
95
|
|
596
|
|
666
|
|
1,180
|
Sales and marketing
|
|
116
|
|
404
|
|
343
|
|
825
|
General and administrative
|
|
142
|
|
537
|
|
1,052
|
|
1,003
|
Income / (loss) from operations
|
|
(342)
|
|
215
|
|
(1,254)
|
|
209
|
Interest and other income / (expense), net
|
|
(14)
|
|
(70)
|
|
(146)
|
|
(152)
|
Net income / (loss) from discontinued operations, net of taxes
|
|
$(356)
|
|
$145
|
|
$(1,400)
|
|
$57
|
Comprehensive income / (loss)
|
|
$(356)
|
|
$145
|
|
$(1,400)
|
|
$57
|
Basic and diluted net loss per common share
|
|
—
|
|
—
|
|
(0.02)
|
|
—
|
Weighted-average common shares outstanding, basic
|
|
77,193
|
|
66,846
|
|
76,644
|
|
66,723
|
Weighted-average common shares outstanding, diluted
|
|
78,780
|
|
66,846
|
|
79,019
|
|
66,723
|
|
|
Six months ended September 30,
|
|||
|
|
2018
|
|
2017
|
|
|
|
(Unaudited)
|
|
(Unaudited)
|
|
Cash flows from operating activities
|
|
|
|
|
|
Net income / (loss) from discontinued operations, net of taxes
|
|
$(1,400)
|
|
$57
|
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
|
|
|
|
|
Depreciation and amortization
|
|
214
|
|
519
|
|
Change in allowance for doubtful accounts
|
|
(369)
|
|
31
|
|
Stock-based compensation
|
|
37
|
|
119
|
|
Loss on disposal of fixed assets
|
|
—
|
|
—
|
|
(Increase) / decrease in assets:
|
|
|
|
|
|
Accounts receivable
|
|
5,328
|
|
(1,986)
|
|
Goodwill
|
|
309
|
|
|
—
|
Prepaid expenses and other current assets
|
|
(406)
|
|
14
|
|
Increase / (decrease) in liabilities:
|
|
|
|
|
|
Accounts payable
|
|
(4,357)
|
|
(1,290)
|
|
Accrued license fees and revenue share
|
|
(1,935)
|
|
1,084
|
|
Accrued compensation
|
|
(230)
|
|
138
|
|
Other current liabilities
|
|
(289)
|
|
(25)
|
|
Cash used in operating activities
|
|
(3,098)
|
|
(1,339)
|
|
|
|
|
|
|
|
Cash flows from investing activities
|
|
|
|
|
|
Capital expenditures
|
|
(41)
|
|
(75)
|
|
Cash used in investing activities
|
|
(41)
|
|
(75)
|
|
|
|
|
|
|
|
Cash used in discontinued operations
|
|
$(3,139)
|
|
$(1,414)
|
|
|
September 30, 2018
|
|
March 31, 2018
|
||||
|
|
(Unaudited)
|
|
|
||||
Billed
|
|
$
|
13,794
|
|
|
$
|
9,172
|
|
Unbilled
|
|
7,934
|
|
|
8,390
|
|
||
Allowance for doubtful accounts
|
|
(866
|
)
|
|
(512
|
)
|
||
Accounts receivable, net
|
|
$
|
20,862
|
|
|
$
|
17,050
|
|
|
|
September 30, 2018
|
|
March 31, 2018
|
||||
|
|
(Unaudited)
|
|
|
||||
Computer-related equipment
|
|
$
|
5,994
|
|
|
$
|
5,464
|
|
Furniture and fixtures
|
|
116
|
|
|
115
|
|
||
Leasehold improvements
|
|
412
|
|
|
166
|
|
||
Property and equipment, gross
|
|
6,522
|
|
|
5,745
|
|
||
Accumulated depreciation
|
|
(3,469
|
)
|
|
(2,988
|
)
|
||
Property and equipment, net
|
|
$
|
3,053
|
|
|
$
|
2,757
|
|
|
|
As of September 30, 2018
|
||||||||||
|
|
(Unaudited)
|
||||||||||
|
|
Cost
|
|
Accumulated Amortization
|
|
Net
|
||||||
Software
|
|
$
|
5,826
|
|
|
$
|
(5,265
|
)
|
|
$
|
561
|
|
Total
|
|
$
|
5,826
|
|
|
$
|
(5,265
|
)
|
|
$
|
561
|
|
|
|
As of March 31, 2018
|
||||||||||
|
|
Cost
|
|
Accumulated Amortization
|
|
Net
|
||||||
Software
|
|
$
|
5,826
|
|
|
$
|
(4,595
|
)
|
|
$
|
1,231
|
|
Total
|
|
$
|
5,826
|
|
|
$
|
(4,595
|
)
|
|
$
|
1,231
|
|
|
|
September 30, 2018
|
|
March 31, 2018
|
||||
|
|
(Unaudited)
|
|
|
||||
Short-term debt
|
|
|
|
|
||||
Short-term debt, net of debt issuance costs of $120 and $205, respectively
|
|
$
|
1,480
|
|
|
$
|
1,445
|
|
Total short-term debt
|
|
$
|
1,480
|
|
|
$
|
1,445
|
|
|
|
September 30, 2018
|
|
March 31, 2018
|
||||
|
|
(Unaudited)
|
|
|
||||
Long-term debt
|
|
|
|
|
||||
Convertible notes, net of debt issuance costs and discounts of $1,482 and $1,827, respectively
|
|
$
|
3,418
|
|
|
$
|
3,873
|
|
Total long-term debt
|
|
$
|
3,418
|
|
|
$
|
3,873
|
|
•
|
a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, the Company’s Subsidiaries or the Company’s or the Company’s Subsidiaries’ employee benefit plans files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than
50%
of the voting power of all outstanding classes of the Company’s common equity entitled to vote generally in the election of the Company’s directors;
|
•
|
consummation of (A) any share exchange, consolidation or merger involving the Company pursuant to which the Common Stock will be converted into cash, securities or other property or (B) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to any person other than one or more of the Company’s Subsidiaries; provided, however, that a share exchange, consolidation or merger transaction described in clause (A) above in which the holders of more than
50%
of all shares of Common Stock entitled to vote generally in the election of the Company’s directors immediately prior to such transaction own, directly or indirectly, more than
50%
of all shares of Common Stock entitled to vote generally in the election of the directors of the continuing or surviving entity or the parent entity thereof immediately after such transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction will not, in either case, be a Fundamental Change;
|
•
|
the Company’s shareholders approve any plan or proposal for the liquidation or dissolution of the Company; or
|
•
|
the Common Stock (or other Capital Stock into which the Notes are then convertible pursuant to the terms of this Indenture) ceases to be listed on any of The New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market, or The NYSE MKT (or their respective successors) (each, an “ Eligible Market ”).
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Balance at Inception
|
||||||||
Financial Liabilities
|
|
|
|
|
|
|
|
|
||||||||
Convertible note embedded derivative liability
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
3,693
|
|
|
$
|
3,693
|
|
Warrant liability
|
|
—
|
|
|
—
|
|
|
1,223
|
|
|
1,223
|
|
||||
Total
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
4,916
|
|
|
$
|
4,916
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Balance as of September 30, 2018
|
||||||||
|
|
|
|
|
|
|
|
(Unaudited)
|
||||||||
Financial Liabilities
|
|
|
|
|
|
|
|
|
||||||||
Convertible note embedded derivative liability
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,728
|
|
|
$
|
1,728
|
|
Warrant liability
|
|
—
|
|
|
—
|
|
|
1,484
|
|
|
1,484
|
|
||||
Total
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
3,212
|
|
|
$
|
3,212
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Balance as of March 31, 2018
|
||||||||
Financial Liabilities
|
|
|
|
|
|
|
|
|
||||||||
Convertible note embedded derivative liability
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
4,676
|
|
|
$
|
4,676
|
|
Warrant liability
|
|
—
|
|
|
—
|
|
|
3,980
|
|
|
3,980
|
|
||||
Total
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
8,656
|
|
|
$
|
8,656
|
|
|
|
Level 3
|
||
Balance at March 31, 2018
|
|
$
|
4,676
|
|
Change in fair value of convertible note embedded derivative liability
|
|
(2,572
|
)
|
|
Derecognition on extinguishment or conversion
|
|
(376
|
)
|
|
Balance at September 30, 2018
|
|
$
|
1,728
|
|
|
September 30, 2018
|
|
Stock price volatility
|
60
|
%
|
Probability of change in control
|
1.75
|
%
|
Stock price (per share)
|
$1.24
|
|
Expected term
|
2.00 years
|
|
Risk-free rate (1)
|
2.77
|
%
|
Assumed early conversion/exercise price (per share)
|
$2.73
|
|
|
Level 3
|
||
Balance at March 31, 2018
|
|
$
|
3,980
|
|
Change in fair value of warrant liability
|
|
(2,496
|
)
|
|
Balance at September 30, 2018
|
|
$
|
1,484
|
|
|
September 30, 2018
|
|
Stock price volatility
|
60
|
%
|
Probability of change in control
|
1.75
|
%
|
Stock price (per share)
|
$1.24
|
|
Expected term
|
2.00 years
|
|
Risk-free rate (1)
|
2.77
|
%
|
Assumed early conversion/exercise price (per share)
|
$2.73
|
|
|
Number of
Shares |
|
Weighted Average
Exercise Price (per share) |
|
Weighted Average
Remaining Contractual Life (in years) |
|
Aggregate Intrinsic
Value (in thousands) |
|||||
Options Outstanding, March 31, 2018
|
|
9,741,969
|
|
|
$
|
2.08
|
|
|
7.82
|
|
$
|
6,286
|
|
Granted
|
|
1,240,425
|
|
|
1.67
|
|
|
|
|
|
|||
Forfeited / Cancelled
|
|
(964,863
|
)
|
|
4.71
|
|
|
|
|
|
|||
Exercised
|
|
(261,201
|
)
|
|
0.88
|
|
|
|
|
|
|||
Options Outstanding, September 30, 2018
|
|
9,756,330
|
|
|
1.80
|
|
|
6.64
|
|
380
|
|
||
Vested and expected to vest (net of estimated forfeitures) at September 30, 2018 (a)
|
|
8,298,074
|
|
|
1.89
|
|
|
7.44
|
|
1,205
|
|
||
Exercisable, September 30, 2018
|
|
4,836,214
|
|
|
$
|
2.37
|
|
|
6.64
|
|
$
|
381
|
|
|
|
Options Outstanding
|
|
Options Exercisable
|
||||||||||||
Exercise Price
|
|
Number of Shares
|
|
Weighted-Average Exercise Price
|
|
Weighted-Average Remaining Life (Years)
|
|
Number of Shares
|
|
Weighted-Average Exercise Price
|
||||||
$0.00 - 0.50
|
|
6,204
|
|
|
$
|
0.24
|
|
|
1.48
|
|
6,204
|
|
|
$
|
0.24
|
|
$0.51 - 1.00
|
|
2,696,614
|
|
|
$
|
0.73
|
|
|
8.08
|
|
582,288
|
|
|
$
|
0.75
|
|
$1.01 - 1.50
|
|
2,567,615
|
|
|
$
|
1.28
|
|
|
7.68
|
|
1,517,113
|
|
|
$
|
1.28
|
|
$1.51 - 2.00
|
|
1,534,339
|
|
|
$
|
1.65
|
|
|
9.23
|
|
309,398
|
|
|
$
|
1.58
|
|
$2.01 - 2.50
|
|
597,766
|
|
|
$
|
2.18
|
|
|
9.37
|
|
67,419
|
|
|
$
|
2.04
|
|
$2.51 - 3.00
|
|
827,992
|
|
|
$
|
2.61
|
|
|
5.63
|
|
827,992
|
|
|
$
|
2.61
|
|
$3.51 - 4.00
|
|
757,800
|
|
|
$
|
3.96
|
|
|
5.84
|
|
757,800
|
|
|
$
|
3.96
|
|
$4.01 - 4.50
|
|
658,000
|
|
|
$
|
4.15
|
|
|
5.53
|
|
658,000
|
|
|
$
|
4.15
|
|
$4.51 - 5.00
|
|
60,000
|
|
|
$
|
4.65
|
|
|
4.49
|
|
60,000
|
|
|
$
|
4.65
|
|
$5.01 and over
|
|
50,000
|
|
|
$
|
5.89
|
|
|
5.95
|
|
50,000
|
|
|
$
|
5.89
|
|
|
|
9,756,330
|
|
|
|
|
|
|
4,836,214
|
|
|
|
|
|
September 30,
|
||||||
|
|
2018
|
|
2017
|
||||
Total fair value of options vested
|
|
$
|
855
|
|
|
$
|
1,461
|
|
Total intrinsic value of options exercised (a)
|
|
$
|
162
|
|
|
$
|
9
|
|
|
|
September 30, 2018
|
Risk-free interest rate
|
|
2.79% to 3.04%
|
Expected life of the options
|
|
5.62 to 9.69 years
|
Expected volatility
|
|
66%
|
Expected dividend yield
|
|
—%
|
Expected forfeitures
|
|
29%
|
|
|
Number of Warrants Outstanding
|
|
Weighted-Average Exercise Price
|
||
Outstanding as of March 31, 2018
|
|
4,536,857
|
|
|
1.56
|
|
Expired
|
|
(412,857
|
)
|
|
3.43
|
|
Outstanding as of September 30, 2018
|
|
4,124,000
|
|
|
1.37
|
|
|
|
Number of Shares
|
|
Weighted-Average Grant Date Fair Value
|
||
Unvested restricted stock outstanding as of March 31, 2018
|
|
132,569
|
|
|
1.09
|
|
Granted
|
|
539,213
|
|
|
1.53
|
|
Vested
|
|
(132,569
|
)
|
|
1.09
|
|
Unvested restricted stock outstanding as of September 30, 2018
|
|
539,213
|
|
|
1.53
|
|
|
|
Three months ended September 30,
|
|
Six months ended September 30,
|
||||||||||||
|
|
2018
|
|
2017
|
|
2018
|
|
2017
|
||||||||
Net income / (loss) from continuing operations, net of taxes
|
|
$
|
2,068
|
|
|
$
|
(6,603
|
)
|
|
$
|
3,596
|
|
|
$
|
(10,690
|
)
|
Weighted-average common shares outstanding, basic
|
|
77,193
|
|
|
66,846
|
|
|
76,644
|
|
|
66,723
|
|
||||
Weighted-average common shares outstanding, diluted
|
|
78,780
|
|
|
66,846
|
|
|
79,019
|
|
|
66,723
|
|
||||
Basic and diluted net income / (loss) per common share
|
|
$
|
0.03
|
|
|
$
|
(0.10
|
)
|
|
$
|
0.05
|
|
|
$
|
(0.16
|
)
|
Common stock equivalents included in net income per diluted share
|
|
1,587
|
|
|
—
|
|
|
2,375
|
|
|
—
|
|
||||
Common stock equivalents excluded from net loss per diluted share because their effect would have been anti-dilutive
|
|
—
|
|
|
1,428
|
|
|
—
|
|
|
1,238
|
|
|
|
Three months ended September 30,
|
||||||
|
|
2018
|
|
2017
|
||||
|
|
(Unaudited)
|
||||||
Net revenues
|
|
|
|
|
||||
United States and Canada
|
|
$
|
17,141
|
|
|
$
|
8,780
|
|
Europe, Middle East, and Africa
|
|
3,246
|
|
|
1,234
|
|
||
Asia Pacific and China
|
|
2,393
|
|
|
5,070
|
|
||
Mexico, Central America, and South America
|
|
1,074
|
|
|
821
|
|
||
Consolidated net revenues
|
|
$
|
23,854
|
|
|
$
|
15,905
|
|
|
|
Six months ended September 30,
|
||||||
|
|
2018
|
|
2017
|
||||
|
|
(Unaudited)
|
||||||
Net revenues
|
|
|
|
|
||||
United States and Canada
|
|
$
|
32,919
|
|
|
$
|
14,834
|
|
Europe, Middle East, and Africa
|
|
7,084
|
|
|
2,497
|
|
||
Asia Pacific and China
|
|
4,397
|
|
|
11,300
|
|
||
Mexico, Central America, and South America
|
|
1,566
|
|
|
2,427
|
|
||
Consolidated net revenues
|
|
$
|
45,966
|
|
|
$
|
31,058
|
|
•
|
The parent company;
|
•
|
The subsidiary guarantors on a combined basis;
|
•
|
Any other subsidiaries of the parent company on a combined basis;
|
•
|
Consolidating adjustments; and
|
•
|
The total consolidated amounts.
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Consolidated Total
|
||||||||
ASSETS
|
|
|
|
|
|
|
|
|
||||||||
Current assets
|
|
|
|
|
|
|
|
|
||||||||
Cash
|
|
$
|
205
|
|
|
$
|
7,823
|
|
|
$
|
321
|
|
|
$
|
8,349
|
|
Restricted cash
|
|
256
|
|
|
175
|
|
|
—
|
|
|
431
|
|
||||
Accounts receivable, net of allowance of $866
|
|
—
|
|
|
20,604
|
|
|
258
|
|
|
20,862
|
|
||||
Deposits
|
|
34
|
|
|
114
|
|
|
4
|
|
|
152
|
|
||||
Prepaid expenses and other current assets
|
|
312
|
|
|
394
|
|
|
10
|
|
|
716
|
|
||||
Current assets held for disposal
|
|
—
|
|
|
3,515
|
|
|
157
|
|
|
3,672
|
|
||||
Total current assets
|
|
807
|
|
|
32,625
|
|
|
750
|
|
|
34,182
|
|
||||
Property and equipment, net
|
|
576
|
|
|
2,470
|
|
|
7
|
|
|
3,053
|
|
||||
Deferred tax assets
|
|
655
|
|
|
—
|
|
|
—
|
|
|
655
|
|
||||
Intangible assets, net
|
|
1
|
|
|
560
|
|
|
—
|
|
|
561
|
|
||||
Goodwill
|
|
1,065
|
|
|
40,201
|
|
|
1,000
|
|
|
42,266
|
|
||||
TOTAL ASSETS
|
|
$
|
3,104
|
|
|
$
|
75,856
|
|
|
$
|
1,757
|
|
|
$
|
80,717
|
|
INTERCOMPANY
|
|
|
|
|
|
|
|
|
||||||||
Intercompany payable / (receivable), net
|
|
113,747
|
|
|
(96,749
|
)
|
|
(16,998
|
)
|
|
—
|
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
|
||||||||
Current liabilities
|
|
|
|
|
|
|
|
|
||||||||
Accounts payable
|
|
$
|
1,068
|
|
|
$
|
25,684
|
|
|
$
|
—
|
|
|
$
|
26,752
|
|
Accrued license fees and revenue share
|
|
—
|
|
|
5,322
|
|
|
395
|
|
|
5,717
|
|
||||
Accrued compensation
|
|
34
|
|
|
512
|
|
|
35
|
|
|
581
|
|
||||
Short-term debt, net of debt issuance costs and discounts of $120
|
|
1,480
|
|
|
—
|
|
|
—
|
|
|
1,480
|
|
||||
Other current liabilities
|
|
1,060
|
|
|
376
|
|
|
41
|
|
|
1,477
|
|
||||
Current liabilities held for disposal
|
|
—
|
|
|
5,639
|
|
|
276
|
|
|
5,915
|
|
||||
Total current liabilities
|
|
3,642
|
|
|
37,533
|
|
|
747
|
|
|
41,922
|
|
||||
Convertible notes, net of debt issuance costs and discounts of $1,482
|
|
3,418
|
|
|
—
|
|
|
—
|
|
|
3,418
|
|
||||
Convertible note embedded derivative liability
|
|
1,728
|
|
|
—
|
|
|
—
|
|
|
1,728
|
|
||||
Warrant liability
|
|
1,484
|
|
|
—
|
|
|
—
|
|
|
1,484
|
|
||||
Total liabilities
|
|
10,272
|
|
|
37,533
|
|
|
747
|
|
|
48,552
|
|
||||
Stockholders' equity
|
|
|
|
|
|
|
|
|
||||||||
Preferred stock
|
|
|
|
|
|
|
|
|
||||||||
Series A convertible preferred stock at $0.0001 par value; 2,000,000 shares authorized, 100,000 issued and outstanding (liquidation preference of $1,000)
|
|
100
|
|
|
—
|
|
|
—
|
|
|
100
|
|
||||
Common stock
|
|
|
|
|
|
|
|
|
||||||||
$0.0001 par value: 200,000,000 shares authorized; 78,214,570 issued and 77,480,114 outstanding at September 30, 2018
|
|
10
|
|
|
—
|
|
|
—
|
|
|
10
|
|
||||
Additional paid-in capital
|
|
320,361
|
|
|
—
|
|
|
—
|
|
|
320,361
|
|
||||
Treasury stock (754,599 shares at September 30, 2018)
|
|
(71
|
)
|
|
—
|
|
|
—
|
|
|
(71
|
)
|
||||
Accumulated other comprehensive loss
|
|
30
|
|
|
(1,489
|
)
|
|
1,136
|
|
|
(323
|
)
|
||||
Accumulated deficit
|
|
(213,851
|
)
|
|
(56,937
|
)
|
|
(17,124
|
)
|
|
(287,912
|
)
|
||||
Total stockholders' equity
|
|
106,579
|
|
|
(58,426
|
)
|
|
(15,988
|
)
|
|
32,165
|
|
||||
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
$
|
116,851
|
|
|
$
|
(20,893
|
)
|
|
$
|
(15,241
|
)
|
|
$
|
80,717
|
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Consolidated Total
|
||||||||
ASSETS
|
|
|
|
|
|
|
|
|
||||||||
Current assets
|
|
|
|
|
|
|
|
|
||||||||
Cash
|
|
$
|
501
|
|
|
$
|
11,800
|
|
|
$
|
419
|
|
|
$
|
12,720
|
|
Restricted cash
|
|
156
|
|
|
175
|
|
|
—
|
|
|
331
|
|
||||
Accounts receivable, net of allowance of $512
|
|
—
|
|
|
16,777
|
|
|
273
|
|
|
17,050
|
|
||||
Deposits
|
|
34
|
|
|
113
|
|
|
4
|
|
|
151
|
|
||||
Prepaid expenses and other current assets
|
|
330
|
|
|
406
|
|
|
14
|
|
|
750
|
|
||||
Current assets held for disposal
|
|
—
|
|
|
8,610
|
|
|
143
|
|
|
8,753
|
|
||||
Total current assets
|
|
1,021
|
|
|
37,881
|
|
|
853
|
|
|
39,755
|
|
||||
Property and equipment, net
|
|
257
|
|
|
2,485
|
|
|
15
|
|
|
2,757
|
|
||||
Deferred tax assets
|
|
596
|
|
|
—
|
|
|
—
|
|
|
596
|
|
||||
Intangible assets, net
|
|
—
|
|
|
1,231
|
|
|
—
|
|
|
1,231
|
|
||||
Goodwill
|
|
—
|
|
|
41,268
|
|
|
1,000
|
|
|
42,268
|
|
||||
TOTAL ASSETS
|
|
$
|
1,874
|
|
|
$
|
82,865
|
|
|
$
|
1,868
|
|
|
$
|
86,607
|
|
INTERCOMPANY
|
|
|
|
|
|
|
|
|
||||||||
Intercompany payable / (receivable), net
|
|
117,873
|
|
|
(114,234
|
)
|
|
(3,639
|
)
|
|
—
|
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
|
||||||||
Current liabilities
|
|
|
|
|
|
|
|
|
||||||||
Accounts payable
|
|
$
|
1,031
|
|
|
$
|
18,841
|
|
|
$
|
23
|
|
|
$
|
19,895
|
|
Accrued license fees and revenue share
|
|
—
|
|
|
7,989
|
|
|
243
|
|
|
8,232
|
|
||||
Accrued compensation
|
|
2,285
|
|
|
661
|
|
|
20
|
|
|
2,966
|
|
||||
Short-term debt, net of debt issuance costs and discounts of $205
|
|
1,445
|
|
|
—
|
|
|
—
|
|
|
1,445
|
|
||||
Other current liabilities
|
|
911
|
|
|
231
|
|
|
—
|
|
|
1,142
|
|
||||
Current liabilities held for disposal
|
|
—
|
|
|
12,246
|
|
|
480
|
|
|
12,726
|
|
||||
Total current liabilities
|
|
5,672
|
|
|
39,968
|
|
|
766
|
|
|
46,406
|
|
||||
Convertible notes, net of debt issuance costs and discounts of $1,827
|
|
3,873
|
|
|
—
|
|
|
—
|
|
|
3,873
|
|
||||
Convertible note embedded derivative liability
|
|
4,676
|
|
|
—
|
|
|
—
|
|
|
4,676
|
|
||||
Warrant liability
|
|
3,980
|
|
|
—
|
|
|
—
|
|
|
3,980
|
|
||||
Total liabilities
|
|
18,201
|
|
|
39,968
|
|
|
766
|
|
|
58,935
|
|
||||
Stockholders' equity
|
|
|
|
|
|
|
|
|
||||||||
Preferred stock
|
|
|
|
|
|
|
|
|
||||||||
Series A convertible preferred stock at $0.0001 par value; 2,000,000 shares authorized, 100,000 issued and outstanding (liquidation preference of $1,000)
|
|
100
|
|
|
—
|
|
|
—
|
|
|
100
|
|
||||
Common stock
|
|
|
|
|
|
|
|
|
||||||||
$0.0001 par value: 200,000,000 shares authorized; 76,843,278 issued and 76,108,822 outstanding at March 31, 2018
|
|
10
|
|
|
—
|
|
|
—
|
|
|
10
|
|
||||
Additional paid-in capital
|
|
318,066
|
|
|
—
|
|
|
—
|
|
|
318,066
|
|
||||
Treasury stock (754,599 shares at March 31, 2018)
|
|
(71
|
)
|
|
—
|
|
|
—
|
|
|
(71
|
)
|
||||
Accumulated other comprehensive loss
|
|
(15
|
)
|
|
(621
|
)
|
|
311
|
|
|
(325
|
)
|
||||
Accumulated deficit
|
|
(216,544
|
)
|
|
(70,716
|
)
|
|
(2,848
|
)
|
|
(290,108
|
)
|
||||
Total stockholders' equity
|
|
101,546
|
|
|
(71,337
|
)
|
|
(2,537
|
)
|
|
27,672
|
|
||||
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
$
|
119,747
|
|
|
$
|
(31,369
|
)
|
|
$
|
(1,771
|
)
|
|
$
|
86,607
|
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Elimination
|
|
Consolidated Total
|
||||||||||
Net revenues
|
|
$
|
—
|
|
|
$
|
43,766
|
|
|
$
|
180
|
|
|
$
|
(20,092
|
)
|
|
$
|
23,854
|
|
Cost of revenues
|
|
|
|
|
|
|
|
|
|
|
||||||||||
License fees and revenue share
|
|
—
|
|
|
35,804
|
|
|
90
|
|
|
(20,092
|
)
|
|
15,802
|
|
|||||
Other direct cost of revenues
|
|
—
|
|
|
508
|
|
|
—
|
|
|
—
|
|
|
508
|
|
|||||
Total cost of revenues
|
|
—
|
|
|
36,312
|
|
|
90
|
|
|
(20,092
|
)
|
|
16,310
|
|
|||||
Gross profit
|
|
—
|
|
|
7,454
|
|
|
90
|
|
|
—
|
|
|
7,544
|
|
|||||
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Product development
|
|
82
|
|
|
2,435
|
|
|
120
|
|
|
—
|
|
|
2,637
|
|
|||||
Sales and marketing
|
|
234
|
|
|
1,483
|
|
|
196
|
|
|
—
|
|
|
1,913
|
|
|||||
General and administrative
|
|
1,252
|
|
|
1,345
|
|
|
82
|
|
|
—
|
|
|
2,679
|
|
|||||
Total operating expenses
|
|
1,568
|
|
|
5,263
|
|
|
398
|
|
|
—
|
|
|
7,229
|
|
|||||
Income / (loss) from operations
|
|
(1,568
|
)
|
|
2,191
|
|
|
(308
|
)
|
|
—
|
|
|
315
|
|
|||||
Interest and other income / (expense), net
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest expense
|
|
(134
|
)
|
|
(1
|
)
|
|
—
|
|
|
—
|
|
|
(135
|
)
|
|||||
Foreign exchange transaction gain / (loss)
|
|
—
|
|
|
15
|
|
|
(14
|
)
|
|
—
|
|
|
1
|
|
|||||
Change in fair value of convertible note embedded derivative liability
|
|
952
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
952
|
|
|||||
Change in fair value of warrant liability
|
|
926
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
926
|
|
|||||
Loss on extinguishment of debt
|
|
(15
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(15
|
)
|
|||||
Other income / (expense)
|
|
24
|
|
|
(24
|
)
|
|
1
|
|
|
—
|
|
|
1
|
|
|||||
Total interest and other income / (expense), net
|
|
1,753
|
|
|
(10
|
)
|
|
(13
|
)
|
|
—
|
|
|
1,730
|
|
|||||
Income / (loss) from continuing operations before income taxes
|
|
185
|
|
|
2,181
|
|
|
(321
|
)
|
|
—
|
|
|
2,045
|
|
|||||
Income tax benefit
|
|
(23
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(23
|
)
|
|||||
Net income / (loss) from continuing operations, net of taxes
|
|
208
|
|
|
2,181
|
|
|
(321
|
)
|
|
—
|
|
|
2,068
|
|
|||||
Loss from discontinued operations
|
|
—
|
|
|
(356
|
)
|
|
—
|
|
|
—
|
|
|
(356
|
)
|
|||||
Net loss from discontinued operations, net of taxes
|
|
—
|
|
|
(356
|
)
|
|
—
|
|
|
—
|
|
|
(356
|
)
|
|||||
Net income / (loss)
|
|
$
|
208
|
|
|
$
|
1,825
|
|
|
$
|
(321
|
)
|
|
$
|
—
|
|
|
$
|
1,712
|
|
Comprehensive income / (loss)
|
|
$
|
208
|
|
|
$
|
1,825
|
|
|
$
|
(321
|
)
|
|
$
|
—
|
|
|
$
|
1,712
|
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Elimination
|
|
Consolidated Total
|
||||||||||
Net revenues
|
|
$
|
—
|
|
|
$
|
84,693
|
|
|
$
|
384
|
|
|
$
|
(39,111
|
)
|
|
$
|
45,966
|
|
Cost of revenues
|
|
|
|
|
|
|
|
|
|
|
||||||||||
License fees and revenue share
|
|
—
|
|
|
69,949
|
|
|
180
|
|
|
(39,111
|
)
|
|
31,018
|
|
|||||
Other direct cost of revenues
|
|
—
|
|
|
1,015
|
|
|
—
|
|
|
—
|
|
|
1,015
|
|
|||||
Total cost of revenues
|
|
—
|
|
|
70,964
|
|
|
180
|
|
|
(39,111
|
)
|
|
32,033
|
|
|||||
Gross profit
|
|
—
|
|
|
13,729
|
|
|
204
|
|
|
—
|
|
|
13,933
|
|
|||||
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Product development
|
|
172
|
|
|
5,339
|
|
|
235
|
|
|
—
|
|
|
5,746
|
|
|||||
Sales and marketing
|
|
358
|
|
|
2,991
|
|
|
400
|
|
|
—
|
|
|
3,749
|
|
|||||
General and administrative
|
|
2,414
|
|
|
2,835
|
|
|
134
|
|
|
—
|
|
|
5,383
|
|
|||||
Total operating expenses
|
|
2,944
|
|
|
11,165
|
|
|
769
|
|
|
—
|
|
|
14,878
|
|
|||||
Income / (loss) from operations
|
|
(2,944
|
)
|
|
2,564
|
|
|
(565
|
)
|
|
—
|
|
|
(945
|
)
|
|||||
Interest and other income / (expense), net
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest expense
|
|
(454
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(454
|
)
|
|||||
Foreign exchange transaction gain / (loss)
|
|
—
|
|
|
25
|
|
|
(16
|
)
|
|
—
|
|
|
9
|
|
|||||
Change in fair value of convertible note embedded derivative liability
|
|
2,572
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,572
|
|
|||||
Change in fair value of warrant liability
|
|
2,496
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,496
|
|
|||||
Loss on extinguishment of debt
|
|
(15
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(15
|
)
|
|||||
Other income / (expense)
|
|
918
|
|
|
(1,040
|
)
|
|
(4
|
)
|
|
—
|
|
|
(126
|
)
|
|||||
Total interest and other income / (expense), net
|
|
5,517
|
|
|
(1,015
|
)
|
|
(20
|
)
|
|
—
|
|
|
4,482
|
|
|||||
Income / (loss) from continuing operations before income taxes
|
|
2,573
|
|
|
1,549
|
|
|
(585
|
)
|
|
—
|
|
|
3,537
|
|
|||||
Income tax benefit
|
|
(59
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(59
|
)
|
|||||
Net income / (loss) from continuing operations, net of taxes
|
|
2,632
|
|
|
1,549
|
|
|
(585
|
)
|
|
—
|
|
|
3,596
|
|
|||||
Income / (loss) from discontinued operations
|
|
(37
|
)
|
|
(1,372
|
)
|
|
9
|
|
|
—
|
|
|
(1,400
|
)
|
|||||
Net income / (loss) from discontinued operations, net of taxes
|
|
(37
|
)
|
|
(1,372
|
)
|
|
9
|
|
|
—
|
|
|
(1,400
|
)
|
|||||
Net income / (loss)
|
|
$
|
2,595
|
|
|
$
|
177
|
|
|
$
|
(576
|
)
|
|
$
|
—
|
|
|
$
|
2,196
|
|
Comprehensive income / (loss)
|
|
$
|
2,595
|
|
|
$
|
177
|
|
|
$
|
(576
|
)
|
|
$
|
—
|
|
|
$
|
2,196
|
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Elimination
|
|
Consolidated Total
|
||||||||||
Net revenues
|
|
$
|
—
|
|
|
$
|
29,026
|
|
|
$
|
267
|
|
|
$
|
(13,388
|
)
|
|
$
|
15,905
|
|
Cost of revenues
|
|
|
|
|
|
|
|
|
|
|
||||||||||
License fees and revenue share
|
|
—
|
|
|
23,183
|
|
|
70
|
|
|
(13,388
|
)
|
|
9,865
|
|
|||||
Other direct cost of revenues
|
|
—
|
|
|
430
|
|
|
—
|
|
|
—
|
|
|
430
|
|
|||||
Total cost of revenues
|
|
—
|
|
|
23,613
|
|
|
70
|
|
|
(13,388
|
)
|
|
10,295
|
|
|||||
Gross profit
|
|
—
|
|
|
5,413
|
|
|
197
|
|
|
—
|
|
|
5,610
|
|
|||||
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Product development
|
|
7
|
|
|
2,216
|
|
|
18
|
|
|
—
|
|
|
2,241
|
|
|||||
Sales and marketing
|
|
72
|
|
|
1,143
|
|
|
69
|
|
|
—
|
|
|
1,284
|
|
|||||
General and administrative
|
|
2,393
|
|
|
1,038
|
|
|
120
|
|
|
—
|
|
|
3,551
|
|
|||||
Total operating expenses
|
|
2,472
|
|
|
4,397
|
|
|
207
|
|
|
—
|
|
|
7,076
|
|
|||||
Income / (loss) from operations
|
|
(2,472
|
)
|
|
1,016
|
|
|
(10
|
)
|
|
—
|
|
|
(1,466
|
)
|
|||||
Interest and other income / (expense), net
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest expense
|
|
(659
|
)
|
|
(3
|
)
|
|
—
|
|
|
—
|
|
|
(662
|
)
|
|||||
Foreign exchange transaction loss
|
|
—
|
|
|
(47
|
)
|
|
—
|
|
|
—
|
|
|
(47
|
)
|
|||||
Change in fair value of convertible note embedded derivative liability
|
|
(3,344
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(3,344
|
)
|
|||||
Change in fair value of warrant liability
|
|
(1,164
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,164
|
)
|
|||||
Loss on extinguishment of debt
|
|
(882
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(882
|
)
|
|||||
Other income
|
|
(24
|
)
|
|
102
|
|
|
—
|
|
|
—
|
|
|
78
|
|
|||||
Total interest and other income / (expense), net
|
|
(6,073
|
)
|
|
52
|
|
|
—
|
|
|
—
|
|
|
(6,021
|
)
|
|||||
Income / (loss) from continuing operations before income taxes
|
|
(8,545
|
)
|
|
1,068
|
|
|
(10
|
)
|
|
—
|
|
|
(7,487
|
)
|
|||||
Income tax provision
|
|
(884
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(884
|
)
|
|||||
Net income / (loss) from continuing operations, net of taxes
|
|
(7,661
|
)
|
|
1,068
|
|
|
(10
|
)
|
|
—
|
|
|
(6,603
|
)
|
|||||
Income / (loss) from discontinued operations
|
|
(73
|
)
|
|
620
|
|
|
(402
|
)
|
|
—
|
|
|
145
|
|
|||||
Net income / (loss) from discontinued operations, net of taxes
|
|
(73
|
)
|
|
620
|
|
|
(402
|
)
|
|
—
|
|
|
145
|
|
|||||
Net income / (loss)
|
|
$
|
(7,734
|
)
|
|
$
|
1,688
|
|
|
$
|
(412
|
)
|
|
$
|
—
|
|
|
$
|
(6,458
|
)
|
Other comprehensive income / (loss)
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Foreign currency translation adjustment
|
|
—
|
|
|
211
|
|
|
(216
|
)
|
|
—
|
|
|
(5
|
)
|
|||||
Comprehensive income / (loss)
|
|
$
|
(7,734
|
)
|
|
$
|
1,899
|
|
|
$
|
(628
|
)
|
|
$
|
—
|
|
|
$
|
(6,463
|
)
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Elimination
|
|
Consolidated Total
|
|||||
Net revenues
|
|
—
|
|
|
56,093
|
|
|
517
|
|
|
(25,552
|
)
|
|
31,058
|
|
Cost of revenues
|
|
|
|
|
|
|
|
|
|
|
|||||
License fees and revenue share
|
|
—
|
|
|
44,904
|
|
|
105
|
|
|
(25,552
|
)
|
|
19,457
|
|
Other direct cost of revenues
|
|
—
|
|
|
839
|
|
|
—
|
|
|
|
|
839
|
|
|
Total cost of revenues
|
|
—
|
|
|
45,743
|
|
|
105
|
|
|
(25,552
|
)
|
|
20,296
|
|
Gross profit
|
|
—
|
|
|
10,350
|
|
|
412
|
|
|
—
|
|
|
10,762
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|||||
Product development
|
|
12
|
|
|
4,373
|
|
|
30
|
|
|
—
|
|
|
4,415
|
|
Sales and marketing
|
|
174
|
|
|
2,125
|
|
|
122
|
|
|
—
|
|
|
2,421
|
|
General and administrative
|
|
4,645
|
|
|
2,070
|
|
|
194
|
|
|
—
|
|
|
6,909
|
|
Total operating expenses
|
|
4,831
|
|
|
8,568
|
|
|
346
|
|
|
—
|
|
|
13,745
|
|
Income / (loss) from operations
|
|
(4,831
|
)
|
|
1,782
|
|
|
66
|
|
|
—
|
|
|
(2,983
|
)
|
Interest and other income / (expense), net
|
|
|
|
|
|
|
|
|
|
|
|||||
Interest expense
|
|
(1,369
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,369
|
)
|
Foreign exchange transaction loss
|
|
—
|
|
|
(110
|
)
|
|
—
|
|
|
—
|
|
|
(110
|
)
|
Change in fair value of convertible note embedded derivative liability
|
|
(4,652
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(4,652
|
)
|
Change in fair value of warrant liability
|
|
(1,628
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,628
|
)
|
Loss on extinguishment of debt
|
|
(882
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(882
|
)
|
Other income
|
|
(21
|
)
|
|
102
|
|
|
—
|
|
|
—
|
|
|
81
|
|
Total interest and other income / (expense), net
|
|
(8,552
|
)
|
|
(8
|
)
|
|
—
|
|
|
—
|
|
|
(8,560
|
)
|
Income / (loss) from continuing operations before income taxes
|
|
(13,383
|
)
|
|
1,774
|
|
|
66
|
|
|
—
|
|
|
(11,543
|
)
|
Income tax provision
|
|
(853
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(853
|
)
|
Net income / (loss) from continuing operations, net of taxes
|
|
(12,530
|
)
|
|
1,774
|
|
|
66
|
|
|
—
|
|
|
(10,690
|
)
|
Income / (loss) from discontinued operations
|
|
(73
|
)
|
|
576
|
|
|
(446
|
)
|
|
—
|
|
|
57
|
|
Net income / (loss) from discontinued operations, net of taxes
|
|
(73
|
)
|
|
576
|
|
|
(446
|
)
|
|
—
|
|
|
57
|
|
Net income / (loss)
|
|
(12,603
|
)
|
|
2,350
|
|
|
(380
|
)
|
|
—
|
|
|
(10,633
|
)
|
Other comprehensive income / (loss)
|
|
|
|
|
|
|
|
|
|
|
|||||
Foreign currency translation adjustment
|
|
—
|
|
|
(5
|
)
|
|
—
|
|
|
—
|
|
|
(5
|
)
|
Comprehensive income / (loss)
|
|
(12,603
|
)
|
|
2,345
|
|
|
(380
|
)
|
|
—
|
|
|
(10,638
|
)
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Consolidated Total
|
||||||||
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
||||||||
Net income / (loss) from continuing operations, net of taxes
|
|
$
|
2,632
|
|
|
$
|
1,549
|
|
|
$
|
(585
|
)
|
|
$
|
3,596
|
|
Adjustments to reconcile net income / (loss) from continuing operations to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
||||||||
Depreciation and amortization
|
|
17
|
|
|
1,417
|
|
|
2
|
|
|
1,436
|
|
||||
Loss on disposal of fixed assets
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Change in allowance for doubtful accounts
|
|
—
|
|
|
319
|
|
|
35
|
|
|
354
|
|
||||
Amortization of debt discount and debt issuance costs
|
|
188
|
|
|
—
|
|
|
—
|
|
|
188
|
|
||||
Stock-based compensation
|
|
942
|
|
|
—
|
|
|
—
|
|
|
942
|
|
||||
Stock-based compensation for services rendered
|
|
208
|
|
|
—
|
|
|
—
|
|
|
208
|
|
||||
Change in fair value of convertible note embedded derivative liability
|
|
(2,572
|
)
|
|
—
|
|
|
—
|
|
|
(2,572
|
)
|
||||
Change in fair value of warrant liability
|
|
(2,496
|
)
|
|
—
|
|
|
—
|
|
|
(2,496
|
)
|
||||
Loss on extinguishment of debt
|
|
15
|
|
|
—
|
|
|
—
|
|
|
15
|
|
||||
(Increase) / decrease in assets:
|
|
|
|
|
|
|
|
|
||||||||
Accounts receivable
|
|
—
|
|
|
(4,549
|
)
|
|
383
|
|
|
(4,166
|
)
|
||||
Deferred tax assets
|
|
(59
|
)
|
|
—
|
|
|
—
|
|
|
(59
|
)
|
||||
Prepaid expenses and other current assets
|
|
18
|
|
|
10
|
|
|
5
|
|
|
33
|
|
||||
Increase / (decrease) in liabilities:
|
|
|
|
|
|
|
|
|
||||||||
Accounts payable
|
|
38
|
|
|
6,986
|
|
|
(167
|
)
|
|
6,857
|
|
||||
Accrued license fees and revenue share
|
|
—
|
|
|
(2,594
|
)
|
|
79
|
|
|
(2,515
|
)
|
||||
Accrued compensation
|
|
(2,250
|
)
|
|
(113
|
)
|
|
(15
|
)
|
|
(2,378
|
)
|
||||
Accrued interest
|
|
3
|
|
|
—
|
|
|
—
|
|
|
3
|
|
||||
Other current liabilities
|
|
4,422
|
|
|
(3,564
|
)
|
|
(450
|
)
|
|
408
|
|
||||
Other non-current liabilities
|
|
(11
|
)
|
|
—
|
|
|
—
|
|
|
(11
|
)
|
||||
Cash provided by / (used in) operating activities - continuing operations
|
|
1,095
|
|
|
(539
|
)
|
|
(713
|
)
|
|
(157
|
)
|
||||
Cash used in operating activities - discontinued operations
|
|
—
|
|
|
(2,648
|
)
|
|
(450
|
)
|
|
(3,098
|
)
|
||||
Net cash provided by / (used in) operating activities
|
|
1,095
|
|
|
(3,187
|
)
|
|
(1,163
|
)
|
|
(3,255
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash flows from investing activities
|
|
|
|
|
|
|
|
|
||||||||
Capital expenditures
|
|
(336
|
)
|
|
(749
|
)
|
|
—
|
|
|
(1,085
|
)
|
||||
Proceeds from intercompany transfer of assets between subsidiaries
|
|
(1,065
|
)
|
|
—
|
|
|
1,065
|
|
|
—
|
|
||||
Cash provided by / (used in) investing activities - continuing operations
|
|
(1,401
|
)
|
|
(749
|
)
|
|
1,065
|
|
|
(1,085
|
)
|
||||
Cash used in investing activities - discontinued operations
|
|
—
|
|
|
(41
|
)
|
|
—
|
|
|
(41
|
)
|
||||
Net cash provided by / (used in) investing activities
|
|
(1,401
|
)
|
|
(790
|
)
|
|
1,065
|
|
|
(1,126
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash flows from financing activities
|
|
|
|
|
|
|
|
|
||||||||
Options exercised
|
|
160
|
|
|
—
|
|
|
—
|
|
|
160
|
|
||||
Repayment of debt obligations
|
|
(50
|
)
|
|
—
|
|
|
—
|
|
|
(50
|
)
|
||||
Net cash used in financing activities
|
|
110
|
|
|
—
|
|
|
—
|
|
|
110
|
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Net change in cash
|
|
(196
|
)
|
|
(3,977
|
)
|
|
(98
|
)
|
|
(4,271
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash and restricted cash, beginning of period
|
|
657
|
|
|
11,975
|
|
|
419
|
|
|
13,051
|
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash and restricted cash, end of period
|
|
$
|
461
|
|
|
$
|
7,998
|
|
|
$
|
321
|
|
|
$
|
8,780
|
|
|
|
Parent
|
|
Guarantor Subsidiaries
|
|
Non-Guarantor Subsidiaries
|
|
Consolidated Total
|
||||||||
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
||||||||
Net income / (loss) from continuing operations, net of taxes
|
|
$
|
(12,530
|
)
|
|
$
|
1,774
|
|
|
$
|
66
|
|
|
$
|
(10,690
|
)
|
Adjustments to reconcile net income / (loss) from continuing operations to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
||||||||
Depreciation and amortization
|
|
9
|
|
|
872
|
|
|
408
|
|
|
1,289
|
|
||||
Amortization of debt discount and debt issuance costs
|
|
680
|
|
|
—
|
|
|
—
|
|
|
680
|
|
||||
Change in allowance for doubtful accounts
|
|
—
|
|
|
219
|
|
|
(15
|
)
|
|
204
|
|
||||
Stock-based compensation
|
|
1,360
|
|
|
—
|
|
|
—
|
|
|
1,360
|
|
||||
Stock-based compensation for services rendered
|
|
150
|
|
|
—
|
|
|
—
|
|
|
150
|
|
||||
Change in fair value of convertible note embedded derivative liability
|
|
4,652
|
|
|
—
|
|
|
—
|
|
|
4,652
|
|
||||
Change in fair value of warrant liability
|
|
1,628
|
|
|
—
|
|
|
—
|
|
|
1,628
|
|
||||
Loss on extinguishment of debt
|
|
882
|
|
|
—
|
|
|
—
|
|
|
882
|
|
||||
(Increase) / decrease in assets:
|
|
|
|
|
|
|
|
|
||||||||
Accounts receivable
|
|
—
|
|
|
(5,697
|
)
|
|
215
|
|
|
(5,482
|
)
|
||||
Deposits
|
|
—
|
|
|
4
|
|
|
—
|
|
|
4
|
|
||||
Deferred tax assets
|
|
(336
|
)
|
|
—
|
|
|
—
|
|
|
(336
|
)
|
||||
Prepaid expenses and other current assets
|
|
33
|
|
|
30
|
|
|
(11
|
)
|
|
52
|
|
||||
Increase / (decrease) in liabilities:
|
|
|
|
|
|
|
|
|
||||||||
Accounts payable
|
|
(272
|
)
|
|
5,006
|
|
|
(35
|
)
|
|
4,699
|
|
||||
Accrued license fees and revenue share
|
|
—
|
|
|
740
|
|
|
88
|
|
|
828
|
|
||||
Accrued compensation
|
|
501
|
|
|
164
|
|
|
—
|
|
|
665
|
|
||||
Accrued interest
|
|
(24
|
)
|
|
—
|
|
|
—
|
|
|
(24
|
)
|
||||
Other current liabilities
|
|
2,096
|
|
|
(1,669
|
)
|
|
(500
|
)
|
|
(73
|
)
|
||||
Other non-current liabilities
|
|
(529
|
)
|
|
—
|
|
|
—
|
|
|
(529
|
)
|
||||
Intercompany movement of cash
|
|
3
|
|
|
(28
|
)
|
|
25
|
|
|
—
|
|
||||
Cash provided by / (used in) operating activities - continuing operations
|
|
(1,697
|
)
|
|
1,415
|
|
|
241
|
|
|
(41
|
)
|
||||
Cash provided by / (used in) operating activities - discontinued operations
|
|
46
|
|
|
(1,047
|
)
|
|
(338
|
)
|
|
(1,339
|
)
|
||||
Net cash provided by / (used in) operating activities
|
|
(1,651
|
)
|
|
368
|
|
|
(97
|
)
|
|
(1,380
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash flows from investing activities
|
|
|
|
|
|
|
|
|
||||||||
Capital expenditures
|
|
—
|
|
|
(743
|
)
|
|
(5
|
)
|
|
(748
|
)
|
||||
Cash provided by / (used in) investing activities - continuing operations
|
|
|
|
(743
|
)
|
|
(5
|
)
|
|
(748
|
)
|
|||||
Cash provided by / (used in) investing activities - discontinued operations
|
|
—
|
|
|
(75
|
)
|
|
—
|
|
|
(75
|
)
|
||||
Net cash used in investing activities
|
|
—
|
|
|
(818
|
)
|
|
(5
|
)
|
|
(823
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash flows from financing activities
|
|
|
|
|
|
|
|
|
||||||||
Proceeds from short-term borrowings
|
|
2,500
|
|
|
—
|
|
|
—
|
|
|
2,500
|
|
||||
Payment of debt issuance costs
|
|
(346
|
)
|
|
—
|
|
|
—
|
|
|
(346
|
)
|
||||
Options exercised
|
|
19
|
|
|
—
|
|
|
—
|
|
|
19
|
|
||||
Repayment of debt obligations
|
|
(247
|
)
|
|
—
|
|
|
—
|
|
|
(247
|
)
|
||||
Net cash provided by financing activities
|
|
1,926
|
|
|
—
|
|
|
—
|
|
|
1,926
|
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Effect of exchange rate changes on cash
|
|
—
|
|
|
(5
|
)
|
|
—
|
|
|
(5
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Net change in cash
|
|
275
|
|
|
(455
|
)
|
|
(102
|
)
|
|
(282
|
)
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash and restricted cash, beginning of period
|
|
414
|
|
|
5,508
|
|
|
558
|
|
|
6,480
|
|
||||
|
|
|
|
|
|
|
|
|
||||||||
Cash and restricted cash, end of period
|
|
$
|
689
|
|
|
$
|
5,053
|
|
|
$
|
456
|
|
|
$
|
6,198
|
|
ITEM 2.
|
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
•
|
Ignite™ ("Ignite"), a mobile device management platform with targeted application distribution capabilities, and
|
•
|
Other products and professional services directly related to the Ignite platform.
|
|
|
Three months ended September 30,
|
|
|
|
Six months ended September 30,
|
|
|
||||||||||||||
|
|
2018
|
|
2017
|
|
% of Change
|
|
2018
|
|
2017
|
|
% of Change
|
||||||||||
|
|
(in thousands, except per share amounts)
|
|
|
|
(in thousands, except per share amounts)
|
|
|
||||||||||||||
Net revenues
|
|
$
|
23,854
|
|
|
$
|
15,905
|
|
|
50.0
|
%
|
|
$
|
45,966
|
|
|
$
|
31,058
|
|
|
48.0
|
%
|
License fees and revenue share
|
|
15,802
|
|
|
9,865
|
|
|
60.2
|
%
|
|
31,018
|
|
|
19,457
|
|
|
59.4
|
%
|
||||
Other direct cost of revenues
|
|
508
|
|
|
430
|
|
|
18.1
|
%
|
|
1,015
|
|
|
839
|
|
|
21.0
|
%
|
||||
Gross profit
|
|
7,544
|
|
|
5,610
|
|
|
34.5
|
%
|
|
13,933
|
|
|
10,762
|
|
|
29.5
|
%
|
||||
Total operating expenses
|
|
7,229
|
|
|
7,076
|
|
|
2.2
|
%
|
|
14,878
|
|
|
13,745
|
|
|
8.2
|
%
|
||||
Income / (loss) from operations
|
|
315
|
|
|
(1,466
|
)
|
|
(121.5
|
)%
|
|
(945
|
)
|
|
(2,983
|
)
|
|
(68.3
|
)%
|
||||
Interest expense
|
|
(135
|
)
|
|
(662
|
)
|
|
(79.6
|
)%
|
|
(454
|
)
|
|
(1,369
|
)
|
|
(66.8
|
)%
|
||||
Foreign exchange transaction gain / (loss)
|
|
1
|
|
|
(47
|
)
|
|
(102.1
|
)%
|
|
9
|
|
|
(110
|
)
|
|
(108.2
|
)%
|
||||
Change in fair value of convertible note embedded derivative liability
|
|
952
|
|
|
(3,344
|
)
|
|
(128.5
|
)%
|
|
2,572
|
|
|
(4,652
|
)
|
|
(155.3
|
)%
|
||||
Change in fair value of warrant liability
|
|
926
|
|
|
(1,164
|
)
|
|
(179.6
|
)%
|
|
2,496
|
|
|
(1,628
|
)
|
|
(253.3
|
)%
|
||||
Loss on extinguishment of debt
|
|
(15
|
)
|
|
(882
|
)
|
|
(98.3
|
)%
|
|
(15
|
)
|
|
(882
|
)
|
|
(98.3
|
)%
|
||||
Other income / (expense)
|
|
1
|
|
|
78
|
|
|
(98.7
|
)%
|
|
(126
|
)
|
|
81
|
|
|
(255.6
|
)%
|
||||
Income / (loss) from continuing operations before income taxes
|
|
2,045
|
|
|
(7,487
|
)
|
|
(127.3
|
)%
|
|
3,537
|
|
|
(11,543
|
)
|
|
(130.6
|
)%
|
||||
Income tax benefit
|
|
(23
|
)
|
|
(884
|
)
|
|
(97.4
|
)%
|
|
(59
|
)
|
|
(853
|
)
|
|
(93.1
|
)%
|
||||
Net income / (loss) from continuing operations, net of taxes
|
|
2,068
|
|
|
(6,603
|
)
|
|
(131.3
|
)%
|
|
3,596
|
|
|
(10,690
|
)
|
|
(133.6
|
)%
|
||||
Net income / (loss)
|
|
$
|
1,712
|
|
|
$
|
(6,458
|
)
|
|
(126.5
|
)%
|
|
$
|
2,196
|
|
|
$
|
(10,633
|
)
|
|
(120.7
|
)%
|
Basic and diluted net income / (loss) per common share
|
|
$
|
0.03
|
|
|
$
|
(0.10
|
)
|
|
(130.0
|
)%
|
|
$
|
0.03
|
|
|
$
|
(0.16
|
)
|
|
(118.8
|
)%
|
Weighted-average common shares outstanding, basic
|
|
77,193
|
|
|
66,846
|
|
|
15.5
|
%
|
|
76,644
|
|
|
66,723
|
|
|
14.9
|
%
|
||||
Weighted-average common shares outstanding, diluted
|
|
78,780
|
|
|
66,846
|
|
|
17.9
|
%
|
|
79,019
|
|
|
66,723
|
|
|
18.4
|
%
|
|
|
Three months ended September 30,
|
|
|
|
Six months ended September 30,
|
|
|
||||||||||||||
|
|
2018
|
|
2017
|
|
% of Change
|
|
2018
|
|
2017
|
|
% of Change
|
||||||||||
|
|
(in thousands)
|
|
|
|
(in thousands)
|
|
|
||||||||||||||
Gross margin $
|
|
$
|
7,544
|
|
|
$
|
5,610
|
|
|
34.5
|
%
|
|
$
|
13,933
|
|
|
$
|
10,762
|
|
|
29.5
|
%
|
Gross margin %
|
|
31.6
|
%
|
|
35.3
|
%
|
|
(10.5
|
)%
|
|
30.3
|
%
|
|
34.7
|
%
|
|
(12.7
|
)%
|
|
|
Three months ended September 30,
|
|
|
|
Six months ended September 30,
|
|
|
||||||||||||||
|
|
2018
|
|
2017
|
|
% of Change
|
|
2018
|
|
2017
|
|
% of Change
|
||||||||||
|
|
(in thousands)
|
|
|
|
(in thousands)
|
|
|
||||||||||||||
Product development
|
|
$
|
2,637
|
|
|
$
|
2,241
|
|
|
17.7
|
%
|
|
$
|
5,746
|
|
|
$
|
4,415
|
|
|
30.1
|
%
|
Sales and marketing
|
|
1,913
|
|
|
1,284
|
|
|
49.0
|
%
|
|
3,749
|
|
|
2,421
|
|
|
54.9
|
%
|
||||
General and administrative
|
|
2,679
|
|
|
3,551
|
|
|
(24.6
|
)%
|
|
5,383
|
|
|
6,909
|
|
|
(22.1
|
)%
|
||||
Total operating expenses
|
|
$
|
7,229
|
|
|
$
|
7,076
|
|
|
2.2
|
%
|
|
$
|
14,878
|
|
|
$
|
13,745
|
|
|
8.2
|
%
|
|
|
Three months ended September 30,
|
|
|
|
Six months ended September 30,
|
|
|
||||||||||||||
|
|
2018
|
|
2017
|
|
% of Change
|
|
2018
|
|
2017
|
|
% of Change
|
||||||||||
|
|
(in thousands)
|
|
|
|
(in thousands)
|
|
|
||||||||||||||
Interest expense
|
|
$
|
(135
|
)
|
|
$
|
(662
|
)
|
|
(79.6
|
)%
|
|
$
|
(454
|
)
|
|
$
|
(1,369
|
)
|
|
(66.8
|
)%
|
Foreign exchange transaction gain / (loss)
|
|
1
|
|
|
(47
|
)
|
|
(102.1
|
)%
|
|
9
|
|
|
(110
|
)
|
|
(108.2
|
)%
|
||||
Change in fair value of convertible note embedded derivative liability
|
|
952
|
|
|
(3,344
|
)
|
|
(128.5
|
)%
|
|
2,572
|
|
|
(4,652
|
)
|
|
(155.3
|
)%
|
||||
Change in fair value of warrant liability
|
|
926
|
|
|
(1,164
|
)
|
|
(179.6
|
)%
|
|
2,496
|
|
|
(1,628
|
)
|
|
(253.3
|
)%
|
||||
Loss on extinguishment of debt
|
|
(15
|
)
|
|
(882
|
)
|
|
(98.3
|
)%
|
|
(15
|
)
|
|
(882
|
)
|
|
(98.3
|
)%
|
||||
Other income / (expense)
|
|
1
|
|
|
78
|
|
|
(98.7
|
)%
|
|
(126
|
)
|
|
81
|
|
|
(255.6
|
)%
|
||||
Total interest and other income / (expense), net
|
|
$
|
1,730
|
|
|
$
|
(6,021
|
)
|
|
(128.7
|
)%
|
|
$
|
4,482
|
|
|
$
|
(8,560
|
)
|
|
(152.4
|
)%
|
|
|
September 30, 2018
|
|
March 31, 2018
|
||||
|
|
(unaudited)
|
|
|
||||
|
|
(in thousands)
|
||||||
Cash
|
|
|
|
|
||||
Cash
|
|
$
|
8,349
|
|
|
$
|
12,720
|
|
Restricted cash
|
|
431
|
|
|
331
|
|
||
Total cash and restricted cash
|
|
8,780
|
|
|
13,051
|
|
||
|
|
|
|
|
||||
Short-term debt
|
|
|
|
|
||||
Short-term debt, net of debt issuance costs of $120 and $205, respectively
|
|
1,480
|
|
|
1,445
|
|
||
Total short-term debt
|
|
$
|
1,480
|
|
|
$
|
1,445
|
|
|
|
|
|
|
||||
Long-term debt
|
|
|
|
|
||||
Convertible notes, net of debt issuance costs and discounts of $1,482 and $1,827, respectively
|
|
3,418
|
|
|
3,873
|
|
||
Total long-term debt
|
|
$
|
3,418
|
|
|
$
|
3,873
|
|
Total debt
|
|
$
|
4,898
|
|
|
$
|
5,318
|
|
|
|
|
|
|
||||
Working capital
(1)
|
|
|
|
|
||||
Current assets
|
|
$
|
30,510
|
|
|
$
|
31,002
|
|
Current liabilities
|
|
36,007
|
|
|
33,680
|
|
||
Working capital
(1)
|
|
$
|
(5,497
|
)
|
|
$
|
(2,678
|
)
|
|
|
Six months ended September 30,
|
|
|
|||||||
|
|
2018
|
|
2017
|
|
% of Change
|
|||||
|
|
(in thousands)
|
|
|
|||||||
Consolidated statement of cash flows data:
|
|
|
|
|
|
|
|||||
Net cash used in operating activities - continuing operations
|
|
$
|
(157
|
)
|
|
$
|
(41
|
)
|
|
(282.9
|
)%
|
Capital expenditures
|
|
(1,085
|
)
|
|
(748
|
)
|
|
(45.1
|
)%
|
||
Proceeds from short-term borrowings
|
|
—
|
|
|
2,500
|
|
|
(100.0
|
)%
|
||
Options exercised
|
|
160
|
|
|
19
|
|
|
742.1
|
%
|
||
Repayment of debt obligations
|
|
(50
|
)
|
|
(247
|
)
|
|
79.8
|
%
|
||
Payment of debt issuance costs
|
|
—
|
|
|
(346
|
)
|
|
100.0
|
%
|
||
Effect of exchange rate changes on cash
|
|
—
|
|
|
(5
|
)
|
|
100.0
|
%
|
|
|
Payments Due by Period
|
||||||||||||||||||
|
|
Total
|
|
Within the Next 12 Months
|
|
1 to 3 Years
|
|
3 to 5 Years
|
|
More Than 5 Years
|
||||||||||
Contractual cash obligations
|
|
(in thousands)
|
||||||||||||||||||
Convertible notes (a)
|
|
$
|
4,900
|
|
|
$
|
—
|
|
|
$
|
4,900
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Operating leases (b)
|
|
5,106
|
|
|
1,078
|
|
|
1,711
|
|
|
1,772
|
|
|
545
|
|
|||||
Interest and bank fees
|
|
1,094
|
|
|
551
|
|
|
543
|
|
|
—
|
|
|
—
|
|
|||||
Uncertain tax positions (c)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Total contractual cash obligations
|
|
$
|
11,100
|
|
|
$
|
1,629
|
|
|
$
|
7,154
|
|
|
$
|
1,772
|
|
|
$
|
545
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
101
|
|
INS XBRL Instance Document. *
|
|
|
|
101
|
|
SCH XBRL Schema Document.
*
|
|
|
|
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.
|
†
|
Management contract or compensatory plan or arrangement
|
††
|
Confidential treatment has been requested for certain confidential portions of this exhibit pursuant to Rule 406 under the Securities Act. In accordance with Rule 406, these confidential portions have been omitted from this exhibit and filed separately with the Securities and Exchange Commission.
|
+
|
In accordance with SEC Release No. 33-8212, these exhibits are being furnished, and are not being filed, as part of the Report on Form 10-Q or as a separate disclosure document, and are not being incorporated by reference into any Securities Act registration statement.
|
|
|
Digital Turbine, Inc.
|
||
Dated: November 5, 2018
|
|
|
||
|
|
By:
|
|
/s/ William Stone
|
|
|
|
|
William Stone
|
|
|
|
|
Chief Executive Officer
|
|
|
|
|
(Principal Executive Officer)
|
|
|
Digital Turbine, Inc.
|
||
Dated: November 5, 2018
|
|
|
||
|
|
By:
|
|
/s/ Barrett Garrison
|
|
|
|
|
Barrett Garrison
|
|
|
|
|
Chief Financial Officer
|
|
|
|
|
(Principal Financial Officer)
|
1.
|
Definitions.
|
1.1
|
Affiliate.
An entity that Controls, is Controlled by, or is under common Control with a Party. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, partnership, person or other entity, whether through the ownership of voting securities, or by contract or otherwise.
|
1.2
|
Confidential Information.
Information (in written, graphic, oral, or other tangible or intangible form) concerning the disclosing party’s business, customers, products, services, technology, trade secrets, and personnel, and designated as confidential by the disclosing party (if tangible information) by conspicuous markings or (if oral information) by announcement at the time of initial disclosure and written documentation thereof within thirty days thereafter, or, if not so marked or announced and documented, should reasonably have been understood as being Confidential Information of the disclosing party either because of other legends or markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may include proprietary material as well as material subject to and protected by laws regarding secrecy of communications or trade secrets, and may include information acquired by the disclosing party from a third party under an obligation of confidentiality. Confidential Information shall not include any information to the extent that it (a) is or becomes publicly available without breach of this Renewal Agreement; (b) can be shown by documentation to have been independently developed by recipient without reference to discloser’s Confidential Information; or (c) is rightfully received from a third party without any obligation of confidentiality.
|
1.3
|
CPI Inventory.
An application placed in the Digital Turbine App Server for which an application developer, distributor, advertiser or other party pays a fee to Digital Turbine (directly or indirectly) when a Subscriber installs, downloads, opens, or activates such application or otherwise responds to an advertising call-to-action. All applications placed by Digital Turbine into the Digital Turbine App Server pursuant to this Renewal Agreement shall be CPI Inventory, except that any application placed by Digital Turbine into the Digital Turbine App Server that meets the definition of Verizon Non-CPI Inventory below is excluded from the definition of CPI Inventory.
|
1.4
|
Digital Turbine App.
Digital Turbine’s mobile application, and all updates thereto, installed on an Interactive Wireless Device, that allows for the retrieval and installation of pre-selected applications at the initial setup of an Interactive Wireless Device or post-setup based upon conditions mutually agreed by the Parties.
|
1.5
|
Digital Turbine App Server. Digital Turbine’s back-end system supporting the Digital Turbine App which includes the stored applications for installation, the management platform for developing installation queues, activating campaigns and pushing applications to devices, and the system for campaign verification and reporting.
|
1.6
|
Interactive Wireless Devices. Any and all wireless devices approved by Verizon for use on the Verizon network.
|
1.7
|
Preload. A method of distributing applications by Verizon on Interactive Wireless Devices prior to the completion of initial setup of the devices via factory pre-install, or delivery via the Digital Turbine App.
|
1.8
|
Subscribers. Any persons, including natural persons, corporations, partnerships, or other entities, who subscribe to Verizon services.
|
1.9
|
Unauthorized Code. Unauthorized Code means any virus, Trojan horse, worm, back door, trap door, time bomb, drop-dead device, timer, clock, counter or other limiting routine, as well as any other instructions, designs, software routines, or hardware components designed to: (a) disable, erase, or otherwise harm software, hardware, data, text or any other information stored in electronic form; (b) cause any of the foregoing with the passage of time; or (c) place a program or hardware under the positive control of a person other than an owner or licensee of the program or hardware. Unauthorized Code does not include software routines in a computer program, if any, designed to permit the owner or licensor of the program, or any other person acting by authority of the owner or licensor, to obtain access to a licensee’s computer system(s) for purposes of maintenance or technical support.
|
1.10
|
Verizon LTE Services. The package of wireless communications, entertainment, and/or voice services, including data, messaging, voice, and web access services, offered by Verizon that let Subscribers use their Interactive Wireless Devices on the Verizon LTE network.
|
1.11
|
Verizon Non-CPI Inventory
. Any Verizon-branded or co-branded application, any Oath-branded or Yahoo-branded or co-branded application, any application developed for Verizon by a third party, any third-party application that is used in whole or in part to deliver a service for which Verizon directly bills a Subscriber, and any other application, installed via the Digital Turbine App by Verizon. No installation or activation fee shall be paid to Digital Turbine for the installation or download of Verizon Non-CPI Inventory by a Subscriber unless otherwise agreed in writing by the Parties.
|
2.
|
The Service.
|
2.1.
|
The Service
. Subject to the terms of this Renewal Agreement, Digital Turbine shall provide the service and hosting, administration and maintenance services described herein, including Digital Turbine’s obligations as set forth in Sections 4.1, 4.6 and
|
2.2.
|
Scope and Duration. The Service shall be provided to Verizon pursuant to Section
|
2.3.
|
Except as provided in Sections 2.1 and 2.2, this Renewal Agreement does not grant either Party any express or implied right or license in any of the other Party’s patents, copyrights, trade secrets, trademarks, trade names, service marks, logos, or other property. Neither Party may use the marks or other trade indicia of the other Party except as otherwise agreed in writing in advance. Subject to the licenses granted herein, Digital Turbine is and will remain the owner of all right, title, and interest in and to those features and functionalities of the Digital Turbine App which Verizon elects to utilize in Interactive Wireless Devices, including but not limited to, all trade secret, confidential, and proprietary information Digital Turbine supplies to Verizon in connection with the Digital Turbine App.
|
3.
|
Use of the Digital Turbine App.
|
3.1.
|
Correction of Errors. For any version of the Digital Turbine App that Digital Turbine or Verizon plans to Preload on an Interactive Wireless Device, Digital Turbine must comply, at its sole expense, with standard testing required by Verizon and the supplier of the applicable Interactive Wireless Device. Verizon or the supplier of the applicable Interactive Wireless Device may notify Digital Turbine of any bugs or errors associated with the use of the Digital Turbine App on such Interactive Wireless Device by providing Digital Turbine a prioritized list, as testing is performed in accordance with standard testing processes. Digital Turbine will correct such bugs or errors at Digital Turbine’s own expense within the time specified by Verizon or the supplier of the Interactive Wireless Device.
|
3.2.
|
Schedule and Milestones. Verizon will specify, in consultation with Digital Turbine and with Verizon’s suppliers, the delivery schedule and the project milestones that must be met to enable the Digital Turbine App to be Preloaded on each Interactive Wireless Device. However, even if Digital Turbine meets the specified schedule or project milestones and corrects any reported bugs and errors, as provided in Section
|
3.3.
|
Unauthorized Code. The Digital Turbine App will contain no Unauthorized Code. Digital Turbine will not use the Digital Turbine App to engage in any fraudulent, illegal, or unauthorized use. Digital Turbine will continuously monitor the Digital Turbine App for the presence of any Unauthorized Code. In the event Digital Turbine detects the presence of any Unauthorized Code, it will: (a) notify Verizon in writing the same day the Unauthorized Code is detected; (b) promptly remove the Unauthorized Code; and (c) promptly remedy any condition caused by the Unauthorized Code.
|
4.
|
Application Features.
|
4.1.
|
Digital Turbine shall host the Digital Turbine Server in the United States.
|
4.2.
|
Verizon may elect, in its sole and absolute discretion, to mediate the data usage charges incurred by Subscribers who download applications via the Digital Turbine App; in other words, Verizon may elect to not apply data charges against a Subscriber’s data plan or allowance if such charges were incurred as the direct result of downloading or installing an application via the Digital Turbine App.
|
4.3.
|
Placement of the applications distributed to an Interactive Wireless Device via the Digital Turbine App within the application tray will be determined by the Interactive Wireless Device’s default setting, unless otherwise agreed by the Parties.
|
4.4.
|
Any branding of the Digital Turbine App will be determined by Verizon in its sole and absolute discretion.
|
4.5.
|
The Digital Turbine App must complete the installation and delivery of each Verizon Non-CPI Inventory application to at least [***] of Interactive Wireless Devices within [***] days of such Interactive Wireless Device’s initial setup. In the event that Verizon can show that the Digital Turbine App has failed to meet this requirement for a Verizon Non-CPI Inventory application (a “Performance Failure”), Digital Turbine shall increase the revenue share paid to Verizon for CPI Inventory by [***] for each instance of a Performance Failure for the duration of such Performance Failure. The [***] target rate does not include failures stemming from a lack of network connectivity or device failure.
|
4.6.
|
Digital Turbine shall provide first tier customer support to Verizon for any customer- facing issues stemming from the installation, delivery or hosting of applications by the Digital Turbine App. Verizon shall provide first-tier customer support for all network and device related issues.
|
4.7.
|
Digital Turbine agrees to comply with the requirements set forth in Exhibit B when scheduling maintenance windows to provide maintenance to the Digital Turbine App.
|
4.8.
|
This Renewal Agreement does not provide for carrier billing, however, the Parties agree in good faith to discuss and work toward the future implementation of carrier billing, either directly through Verizon by integrating Verizon’s Direct Carrier Billing API into the Digital Turbine App or through a third party billing vendor. The Parties further agree to discuss in good faith the possibility of integrating the Digital Turbine App with other Verizon billing systems, at Verizon’s request.
|
5.
|
Submission, Testing, and Acceptance of Applications.
|
5.1.
|
Application Submission. Digital Turbine will submit the Digital Turbine App, including any updates or upgrades thereto, to Verizon for testing and certification as agreed by the Parties.
|
5.2.
|
Application Testing and Certification.
Verizon, or the manufacturer of an Interactive Wireless Device, will test and certify each version of the Digital Turbine App to be included with each Interactive Wireless Device. In connection with testing and certification, the Parties will agree to a plan for testing the functionality and features of the Digital Turbine App. The Parties acknowledge that any information and tools provided by the other Party under this Section 5.2 are Confidential Information subject to the confidentiality obligations in Section 12 below.
|
6.
|
CPI Inventory and Revenue Shares.
|
6.1.
|
Verizon, in its sole and absolute discretion, shall have the right to designate any number of inventory spots for use by Digital Turbine to place its CPI Inventory into the Digital Turbine App on Interactive Wireless Devices (“DT Placed CPI Inventory”). Verizon, in its sole and absolute discretion, shall also have the right to review and approve the applications selected by Digital Turbine prior to their inclusion in CPI Inventory. As between Verizon and Digital Turbine, Digital Turbine will be responsible for securing all necessary rights, including licensing rights and IP clearances, to display and distribute the applications included in DT Placed CPI Inventory.
|
6.2.
|
Verizon, in its sole and absolute discretion, shall have the right to place, deliver and distribute on Interactive Wireless Devices via the Digital Turbine App applications that it has sold as CPI Inventory (“Verizon Sold CPI Inventory”).
|
6.3.
|
Verizon shall have the right to place, deliver and distribute, at no cost to Verizon and subject to
[***]
set forth in Section 6.4, an unlimited quantity of Verizon Non-CPI Inventory on an Interactive Wireless Device via the Digital Turbine App (with the exception of third-party applications for which Verizon receives a revenue share, which shall be limited to
[***]
such applications per Interactive Wireless Device), provided that Verizon authorizes on that Interactive Wireless Device at least
[***]
slots for applications to be offered as CPI Inventory.
|
6.4.
|
In consideration for the Service provided by Digital Turbine to Verizon hereunder, the Parties shall pay to one another a share of all revenues generated from CPI Inventory for as long as the Interactive Wireless Devices on which the Digital Turbine App is installed are in use within the Verizon Wireless Network. The schedule of revenue share for the Term is as follows:
|
Annual Gross Revenue Tiers
|
DT Placed CPI Inventory
|
Verizon Sold CPI Inventory (Including Oath Sold CPI Inventory)
|
||
|
Digital Turbine Revenue Share (%)
|
Verizon Revenue Share (%)
|
Digital Turbine Revenue Share (%)
|
Verizon Revenue Share (%)
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
7.
|
Taxes.
|
7.1.
|
If taxes are legally required to be withheld on any amounts to be paid by one Party to the other, the paying Party will deduct such taxes from the amount otherwise owed and pay the tax directly to the appropriate taxing authority. The paying Party will furnish the other Party with a tax certificate or other appropriate documentation evidencing such payment. The Parties will use reasonable efforts to help ensure that any taxes withheld are minimized to the extent possible under applicable law.
|
7.2
|
If Digital Turbine is obligated to make payment to a third party content provider (“Provider”) for content or services provided on Interactive Wireless Devices, Digital Turbine shall not make payment to any Provider, unless it first obtains valid withholding exemption documentation (e.g. US Form W-9 and California withholding exemption forms). Unless prior approval is obtained from Verizon, Digital Turbine shall not make payment to Providers outside the United States that could be subject to income tax withholding under 26 U.S.C. § 1441 or § 1442. Should Digital Turbine fail to remit any withholding tax on payments made to a Provider, Digital Turbine shall indemnify Verizon for any resulting liability, including tax, penalty, interest, and reasonable litigation expenses.
|
7.3.
|
If any product or service provided by Digital Turbine is subject to a transaction tax imposed on Verizon and required to be collected by Digital Turbine, then Digital Turbine shall bill Verizon such tax and Verizon shall pay such tax, unless Verizon has provided valid exemption documentation to Digital Turbine. If any product or service provided by Verizon is subject to a transaction tax imposed on Digital Turbine and required to be collected by Verizon, then Verizon shall bill Digital Turbine such tax and Digital Turbine shall pay such tax, unless Digital Turbine has provided valid exemption documentation to Verizon. As to any other tax, such as income, payroll, property, privilege, excise, occupation, franchise, or gross receipts tax, the Party with the legal incidence of such tax shall pay such tax. Each Party will bear financial responsibility for Tax, interest, and penalties resulting from its own failure to comply with applicable law. Both Parties agree that the delivery location of any good and the location of beneficial enjoyment of any service is the address shown on the first page of this Renewal Agreement, unless advance written notice of a substitute location is provided.
|
7.4.
|
Digital Turbine shall be responsible for any sales, use, excise, value added, service, consumption, property, franchise, income, or other taxes and duties based upon or measured by Digital Turbine’s cost in acquiring goods or services furnished or used by Digital Turbine in performing its obligations under this Renewal Agreement.
|
7.5.
|
If either Party is audited by a taxing authority or other governmental entity the other Party agrees to reasonably cooperate with the Party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or any resulting controversy may be resolved expeditiously.
|
7.6.
|
If applicable law places the responsibility on Digital Turbine to collect a Tax from Verizon and Digital Turbine fails to do so, Verizon will not be responsible for any interest or penalties associated with Digital Turbine’s failure to collect such Tax. Furthermore, Digital Turbine shall not invoice a Tax to Verizon on products and/or services under this Renewal Agreement which are, by law, not taxable. Any rebate, refund or other credit for any Taxes paid by Verizon shall be credited, refunded, or otherwise returned to Verizon within 30 days of Digital Turbine’s receipt of such rebate, refund or credit.
|
8.
|
Charges and Accounting.
|
8.1.
|
Charges for Verizon LTE Services
. The amounts charged by Verizon to Subscribers for their use of Verizon LTE Services needed to use the Digital Turbine App will be determined by Verizon in its sole discretion. Verizon will be responsible for billing Subscribers, as well as for all associated collection activity for such charges.
|
8.2.
|
Application Cost
. The Digital Turbine App shall be at no cost to Subscribers for download and use.
|
8.3.
|
No Additional Fees
. Except to the extent otherwise mutually agreed under a SOW, Addendum or Amendment with respect to future functionalities of the Digital Turbine App or other services which may be rendered by Digital Turbine from time to time, there shall be no additional fee or royalties paid to Digital Turbine for the Digital Turbine App and Service provided pursuant to this Renewal Agreement.
|
8.4.
|
Activity Reports. Within ten (10) calendar days after the end of each calendar month, each Party that has received revenue subject to the sharing obligations of Section 6.4 shall provide a monthly report that allows the receiving Party to properly and independently validate the revenue share to be paid pursuant to Section 6.4 (each an “Activity Report”). The Activity Reports will include the following information at a minimum, or such other information as the Parties may agree to in writing: month and year that is covered by the report, total monthly revenue, identity of each CPI Inventory application on which revenue was received (a “CPI Revenue Application”), number of units on which payment was made for each CPI Revenue Application, per-unit payment amount for each CPI Revenue Application, and revenue share due to the other Party. The Parties will provide Activity Reports in
|
8.5.
|
Payment Process. In the event that both Parties submit an Activity Report to the other in a given month, the Parties shall, within five (5) days of the receipt of these reports, determine the net amount due to the Party that is owed the larger payment for that month. The net owing Party shall make payment to the other Party of the net owed amount within
[***]
calendar days of the date on which the reconciliation is completed. In the event that only one Party submits an Activity Report to the other in a given month, that Party shall make payment to the other Party of the owed amount within
[***]
calendar days of the date on which the Activity Report was sent.
|
8.6.
|
Payment. Digital Turbine is responsible for keeping remittance and address information up-to-date. Payments to Verizon shall be made by wire as follows, unless Verizon designates an alternative preferred method of payment: [Omitted]
|
9.
|
Reporting Records and Audits
.
|
9.1.
|
Testing
. From time to time, with reasonable frequency and in a manner that is not disruptive to the business of Digital Turbine, Verizon may perform testing to ensure that any qualifying actions that qualify for the revenue share are properly captured by the processes Digital Turbine uses to compile Activity Reports and make payment to Verizon. Digital Turbine will support Verizon’s test scenarios to verify proper reporting of these transactions.
|
9.2.
|
Payment Audit
. Digital Turbine will allow a nationally recognized accounting firm (“Auditor”) upon thirty (30) days prior written notice to audit Digital Turbine’s books and records (in whatever form kept) solely to verify Digital Turbine’s compliance with all payment provisions of this Renewal Agreement. At Verizon’s request and not more than twice during any 12-month period during which Digital Turbine is required to maintain records, the Auditor shall have access to Digital Turbine’s books and records at reasonable times and in such a manner as to not unreasonably interfere with Digital Turbine’s business operations. Verizon agrees that it will require any such Auditor to be subject to a written confidentiality agreement requiring such Auditor and its agents to treat all books and records and any other materials necessary for the Auditor to conduct the audit as confidential information of Digital Turbine and not to disclose any such confidential information to any party and to use all such confidential information solely for the purposes of performing the audit. Digital Turbine shall maintain complete records of all charges payable to Verizon under the terms of this Renewal Agreement for one year after termination of the Agreement. All such records shall be maintained in accordance with recognized accounting practices. The correctness of Digital Turbine’s payments shall be determined by such audits. This audit right will survive for the one (1) year period following expiration or termination of this Renewal Agreement. Prompt adjustments shall be made to compensate for any errors or omissions disclosed by such review or examination. If such review or examination reveals an underpayment by Digital Turbine with respect to the revenue share of more than ten percent (10%) and at least twenty-five thousand dollars ($25,000) for any calendar month, then Digital Turbine will promptly reimburse Verizon for all reasonable, third-party audit fees.
|
10.
|
Limitation of Obligations
.
|
11.
|
Network Usage Guidelines
.
|
12.
|
Confidentiality and Publicity.
|
12.1
|
Confidentiality
. The Parties have entered into a Non-Disclosure Agreement (“NDA”) dated as of October 14, 2013, attached as Exhibit C and incorporated herein by reference. The Parties hereby agree that the expiration date of the NDA shall be extended to be coterminous with this Renewal Agreement, and that the terms of this Renewal Agreement will be deemed Confidential Information under the terms of the NDA.
|
12.2
|
Subscriber Information
. Verizon will not provide Digital Turbine with any individualized information about Subscribers under this Renewal Agreement. Digital Turbine may not collect any information about Subscribers from the Digital Turbine App for any purpose without Verizon’s prior written approval; provided however that Digital Turbine may use device identifiers for the sole purpose of providing its Service.
|
12.3
|
Publicity. Verizon and Digital Turbine agree to announce the nature of the business relationship between the Parties, using mutually-agreed upon language and distribution. Digital Turbine may not issue any further marketing or other communications intended for public disclosure, including press releases, advertisements and web sites, which reference Verizon without Verizon’s prior written consent. Similarly, Digital Turbine may not use the Verizon logo or Verizon’s trademarks, trade names, service marks or other proprietary indicia without Verizon’s prior written consent. Verizon may not issue any marketing or other communications intended for public disclosure, including press releases, advertisements and websites, which reference Digital Turbine without Digital Turbine’s prior written consent. Similarly, Verizon may not use the Digital Turbine logo or Digital Turbine’s trademarks, trade names, service marks or other proprietary indicia without Digital Turbine’s prior written consent. Notwithstanding the foregoing, any Party may disclose information concerning this Renewal Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other Party.
|
13.
|
Insurance
.
|
13.1
|
Digital Turbine shall maintain, during the Term of this Renewal Agreement, at its own expense, the following insurance:
|
13.1.1
|
Professional Liability (Errors and Omissions) with limits of not less than
|
13.1.2
|
Commercial general liability insurance (including, but not limited to, premises operations, broad-form property damage, products/completed operations, contractual liability, independent contractors, personal injury) and, if the use of automobiles is required, comprehensive automobile liability insurance, each with limits of at least $
[***]
for combined single limit per occurrence.
|
13.2
|
The insuring carriers shall be rated AM Best A- or better. Such policies shall be primary and non-contributory by Verizon. Verizon shall be named as an additional insured on all such policies. Digital Turbine shall furnish to Verizon certificates of such insurance within ten (10) days of the execution of this Renewal Agreement. The certificates shall provide that ten (10) days prior written notice of cancellation or material change of the insurance to which the certificates relate shall be given to Verizon. The fulfillment of the obligations hereunder in no way modifies any indemnification obligations under this Renewal Agreement.
|
13.3
|
Digital Turbine shall also require Digital Turbine’s subcontractors, if any, who may enter upon Verizon’s premises to maintain insurance policies with the same coverage and limits as those listed in Section 13.1 above, and to agree to furnish Verizon, if requested, certificates or adequate proof of such insurance. Certificates furnished by Digital Turbine’s subcontractors shall contain a clause stating that Verizon is to be notified in writing at least ten (10) days prior to cancellation of, or any material change in, the policy.
|
14.
|
Representations and Warranties.
|
14.1
|
General Representations and Warranties
. Digital Turbine represents and warrants that: (i) Digital Turbine has the full right, power, and authority to enter into this Renewal Agreement; (ii) Digital Turbine’s acceptance of this Renewal Agreement, as well as Digital Turbine’s performance of the obligations set forth in this Renewal Agreement, do not and will not violate any other agreement to which Digital Turbine is a party; and (iii) any and all activities that Digital Turbine undertakes in connection with this Renewal Agreement will be performed in compliance with all applicable laws, rules, and regulations. Verizon represents and warrants that: (i) Verizon has the full right, power, and authority to enter into this Renewal Agreement; (ii) Verizon’s acceptance of this Renewal Agreement, as well as Verizon’s performance of the obligations set forth in this Renewal Agreement, do not and will not violate any other agreement to which Verizon is a party; (iii) any and all activities that Verizon undertakes in connection with this Renewal Agreement will be performed in compliance with all applicable laws, rules, and regulations; and (iv) to the extent required under applicable laws and regulations, as between the Parties Verizon is responsible for obtaining Subscriber consent for the features and functionalities of the Digital Turbine App which Verizon elects to utilize on Interactive Wireless Devices.
|
14.2
|
Application Representation and Warranty
. Digital Turbine represents and warrants that, for as long as the Digital Turbine App continues to be available for Preload on Interactive Wireless Devices, the Digital Turbine App will perform as described by Digital Turbine at the time that the Digital Turbine App was submitted to Verizon, and that the Digital Turbine App will comply with other applicable documentation and standards, including but not limited to the functionality and specifications set forth in
Exhibit A
hereto. If Verizon believes that this representation and warranty is breached, Verizon will so notify Digital Turbine in writing and, within 10 days, Digital Turbine will: (i) repair the Digital Turbine App to conform its performance with applicable documentation and standards; or (ii) replace such Digital Turbine App with a version that performs in accordance with applicable documentation and standards.
|
14.3
|
Digital Turbine Representations and Warranties
. Digital Turbine represents and warrants that the Digital Turbine App and Digital Turbine App Server do not violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of any third Parties, will not contain any Unauthorized Code, and will not be used for any fraudulent, illegal or unauthorized use. Digital Turbine represents and warrants that it has the authority to license the Digital Turbine App, as well as any content, material or services that Digital Turbine makes available in or with the Digital Turbine App, for use by Verizon and Subscribers in accordance with this Renewal Agreement.
|
14.4
|
Verizon Representations and Warranties
. Verizon represents and warrants that it has the authority to provide any Verizon Sold Inventory, any Verizon Non-CPI Inventory, as well as any content, material or services that Verizon makes available in or with the Digital Turbine App, for use by Verizon and Subscribers in accordance with this Renewal Agreement.
|
14.5
|
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT OR THE NDA, NEITHER DIGITAL TURBINE NOR VERIZON MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
|
15.
|
Indemnification.
|
15.1
|
Indemnification by Digital Turbine
. Digital Turbine shall defend, indemnify and hold harmless Verizon, Verizon’s Affiliates, the officers, directors, employees and representatives of Verizon and Verizon’s Affiliates, and all Subscribers (each a “Verizon Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, whether under a theory of negligence, strict liability, contract, or otherwise, incurred or to be incurred by a Verizon Indemnified Party (each a “Claim”), including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from or related to: (i) the Digital Turbine App or Digital Turbine App Server, including any third party claim that the Digital Turbine App or Digital Turbine App Server contains Unauthorized Code or any other code that is alleged to disrupt, disable, harm or otherwise impede the operation of any software, firmware, hardware, Interactive Wireless Device, computer system or network; (ii) a breach by Digital Turbine of any of the representations or warranties contained in this Renewal Agreement or the NDA; (iii) any actual or alleged infringement or misappropriation of any patent, trademark, copyright, trade secret or any actual or alleged violation of any other intellectual property or proprietary rights arising from or in connection with the Digital Turbine App or Digital Turbine App Server; (iv) any copying, reproduction, display, performance, storage, exploitation, use, distribution, transmission, sublicensing, transfer, or assignment of the Digital Turbine App or related documentation permitted under this Renewal Agreement that allegedly causes harm or infringement of any patent, copyright, trademark, trade secret, or other property rights of one or more third Parties arising in any jurisdiction throughout the world; (v) a claim that the Digital Turbine App or Digital Turbine App Server infringes any right of publicity or right of privacy or (vi) any failure by Digital Turbine to obtain rights or licenses to content, services, or material made available in or through the Digital Turbine App.
|
15.2
|
Without limitation of Section 15.1, if sale, use, or distribution of the Digital Turbine App becomes subject to a Claim for infringement of any intellectual property right, Digital Turbine shall, at Verizon’s option and Digital Turbine’s expense:
|
15.2.1
|
Procure for Verizon the right to use the Digital Turbine App (including related products furnished hereunder);
|
15.2.2
|
Replace the Digital Turbine App with equivalent, non-infringing products and/or services; or
|
15.2.3
|
Modify the Digital Turbine App so it becomes non-infringing.
|
15.3
|
Indemnification by Verizon. Verizon shall defend, indemnify and hold harmless Digital Turbine, Digital Turbine’s Affiliates, the officers, directors, employees and representatives of Digital Turbine and Digital Turbine’s Affiliates, (each a “DT Indemnified Party”) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, whether under a theory of negligence, strict liability, contract, or otherwise, incurred or to be incurred by a DT Indemnified Party (each a “Claim”), including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from or related to a breach by Verizon of the representations or warranties set forth in Sections 14.1 and 14.4 of this Renewal Agreement.
|
15.4
|
An indemnified Party receiving a Claim will provide the indemnifying Party with prompt, written notice of any written Claim covered by this indemnification and will cooperate appropriately with the indemnifying Party in connection with the indemnifying Party’s evaluation of such Claim. The indemnifying Party shall defend any indemnified Party, at the indemnified Party’s request, against any Claim. Promptly after receipt of such request, the indemnifying Party shall assume the defense of such Claim with counsel reasonably satisfactory to the indemnified Party. The indemnifying Party shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of each indemnified Party and without an unconditional release of all claims by each claimant or plaintiff in favor of each indemnified Party.
|
16.
|
Liability Limitations.
|
16.1
|
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS ARISING UNDER SECTION 15, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR STATUTORY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUES, BUSINESS, OR PROFITS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS CONTAINED IN THIS SECTION APPLY REGARDLESS WHETHER THEY ARE ADVISED OF OR WERE AWARE OF THE POSSIBILITY OF THE DAMAGES SET FORTH IN THE PRECEDING SENTENCE.
|
16.2
|
THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE AND REGULATION, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
|
17.
|
Term and Termination.
|
17.1.
|
Term. This Renewal Agreement shall, unless terminated as otherwise provided herein, shall continue in effect for a period of four (4) years beginning from the Effective Date.
|
17.2.
|
Termination by Verizon. Verizon may terminate this Renewal Agreement immediately, upon written notice to Digital Turbine, if any of the following events occurs: (i) Digital Turbine files a voluntary petition in bankruptcy; (ii) Digital Turbine is adjudged bankrupt; (iii) a court assumes jurisdiction of the assets of Digital Turbine under a federal reorganization act; (iv) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of Digital Turbine; (v) Digital Turbine becomes insolvent or suspends its business; (vi) Digital Turbine makes an assignment of its assets for the benefit of its creditors except as required in the ordinary course of business; or (vii) Digital Turbine’s business is materially changed by sale of its business, transfer of control of its outstanding stock, merger or otherwise.
|
17.3
|
Termination by Either Party. Each Party shall have the right to terminate this Renewal Agreement for cause in the event the other Party is in material breach of its obligations hereunder and fails to cure such material breach within thirty (30) days from receipt of written notice by the non-breaching Party. In addition, either Party may terminate this Renewal Agreement for convenience by giving the other Party at least ninety (90) calendar days prior written notice of termination.
|
17.4
|
Cessation of Distribution: Upon termination of this Renewal Agreement, Verizon shall cease Preloading the Digital Turbine App on Verizon Interactive Wireless Devices.
|
18.
|
Offshore Restrictions.
|
18.1
|
Except with Verizon’s advance written consent, in no event shall Confidential Information regarding or pertaining to Verizon’s systems, infrastructure, employees, or customers be stored, transmitted, or accessed at, in, through, or from a site located outside the United States nor made available to any person who is located outside the United States unless such Confidential Information relates solely, directly and independently: (i) to Verizon employees or customers located outside of the United States, (ii) to voice or data communications of Verizon or its customers that originate and terminate outside the United States, (iii) to Verizon systems and/or infrastructure dedicated to the provision of Verizon’s voice or data services outside the United States, or (iv) to necessary storage or access outside the United States in connection with security, back-up, disaster recovery, or related purposes that have been expressly required and authorized by Verizon through services specifications, security and/or technical requirements. This Section shall not apply to Verizon Wireless Customer Data, which shall be governed by the provisions of Section 18.2.
|
18.2
|
Unless Digital Turbine secures Verizon Wireless’ prior written consent, in no event:
|
19.
|
Privacy and Data Security; Work Rules and Access Requirements.
|
19.1
|
Digital Turbine represents and warrants that it and its directors, shareholders, officers, employees, agents and all permitted subcontractors are currently in compliance, and will continue to be in compliance, with all laws pertaining to the safeguarding, protection, privacy, security, encryption, unauthorized disclosure, breach notification and disposal of personal or similar information used, maintained, and/or accessed on Verizon’s behalf. In addition, Digital Turbine shall perform in compliance with Verizon’s information security requirements available at
http://www.verizon.com/suppliers
(or successor website) and incorporated herein by this reference, as the same may be updated from time to time.
|
19.2
|
In the event of an unauthorized disclosure of personal or similar information, including personally identifiable information provided by or on behalf of Verizon hereunder, resulting from a breach, or potential breach, of security of any system, website, database, storage medium or other facility (“Security Breach”) used or otherwise maintained by or on behalf of Digital Turbine in connection with the provision of Services, Digital Turbine shall (i) provide notice of same by e-mail to
security.issues@verizon.com
within forty-eight (48) hours, and to the contract notice addressee set forth in Section 21.9 by the means set forth therein, (ii) make best efforts to re-secure its systems immediately, and (iii) cooperate with Verizon in the investigation and remediation of any such occurrence.
|
19.3
|
Digital Turbine agrees that, in addition to any applicable indemnification obligations hereunder, it shall assume or reimburse Verizon, for all reasonable and documented remediation costs, including, but not limited to, any governmental fees or fines, costs for notifications, costs for credit monitoring, and customer reimbursements incurred by Verizon in connection with a Security Breach.
|
19.4
|
If Digital Turbine is given access, whether on-site or through remote facilities, to any Verizon computer or electronic data storage system, Digital Turbine shall limit such access and use solely to perform actions within the scope of this Renewal Agreement, shall not without prior written authorization of Verizon export or transmit any Verizon computer system, electronic file, software or other electronic services, or data contained therein, to entities or locations other than those specified in this Renewal Agreement, and shall not access or attempt to access any computer system, electronic file, software or other electronic services other than those specifically required to accomplish the work required under this Renewal Agreement and only as permitted in this Renewal Agreement. Digital Turbine shall limit such access to those of its employees who are qualified and required, subject to Verizon requiring written authorization, to have such access in connection with this Renewal Agreement, and shall strictly follow all Verizon’s security rules (as provided in writing) for use of Verizon’s electronic resources. All user identification numbers and passwords disclosed to Digital Turbine and any information obtained by Digital Turbine as a result of Digital Turbine’s access to and use of Verizon’s computer and electronic data storage systems shall be deemed to be, and shall be treated as, Verizon Confidential Information under applicable provisions of this Renewal Agreement. Verizon reserves the right to monitor such actions by Digital Turbine and Digital Turbine agrees to cooperate with Verizon in the investigation of any apparent unauthorized access by Digital Turbine to Verizon’s computer or electronic data storage systems or unauthorized release of Confidential Information by Digital Turbine.
|
19.5
|
If Digital Turbine is given such access to any Verizon computer or electronic storage system, or if Digital Turbine otherwise exchanges electronic messages or communications with Verizon (including but not limited to Verizon accessing any of Digital Turbine’s data bases or systems on-site or remotely), or if Digital Turbine furnishes software or other electronic transmissions to Verizon: (i) Digital Turbine shall not transmit or introduce any Unauthorized Code to Verizon or into its network, computers, electronic storage systems or other systems; and (ii) any software provided to Verizon by Digital Turbine for use by Digital Turbine or Verizon shall:
|
19.6
|
Verizon reserves the right to request at any time and for any reason that specific employees, subcontractors, and agents of Digital Turbine be removed from and not assigned by Digital Turbine to perform Services for Verizon, and Digital Turbine acknowledges, agrees and understands that Digital Turbine will immediately comply with such request by Verizon.
|
19.7
|
Digital Turbine agrees to comply with Verizon’s Supplier Code of Conduct located at
https://www.verizon.com/about/sites/default/files/Verizon-Supplier-Code-of- Conduct.pdf
,
which may be updated from time to time.
|
20.
|
Background Checks.
|
20.1
|
For each of the Employees that Digital Turbine wishes to assign to perform tasks associated with this Renewal Agreement, Digital Turbine shall certify to Verizon that it has conducted (or caused to be conducted) a background check as described herein (collectively referred to as “Background Checking”). For purposes of this Section, “Employee” shall include Digital Turbine’s employees and any of Digital Turbine’s contract personnel.
|
20.2
|
Where permitted by law, the criminal history check shall consist of a federal and state check for felony and misdemeanor criminal convictions (or the equivalent thereof under relevant law) in all locations where the assigned Employee has resided, has been employed, or has attended school in the immediately preceding seven (7) years, and a check of U.S. Government Specially Designated National (OFAC) and export denial lists. This criminal history check shall include, to the extent available and permitted by law, a check for outstanding warrants and a check for pending felony charges in all such locations. Statewide county searches shall be performed in all states where such search mechanism is available without requiring specialized data (such as fingerprints or DNA), and the National Criminal File database shall also be searched. Employment history shall be verified for at least the previous seven (7) years of employment and military service, or less if the employee was a full-time student during that period. The name to which Employee’s Social Security Number is attributed shall be verified. The Employee’s citizenship, most recent country of permanent residence, and legal right to work in the jurisdiction in which the Employee will be performing Services for Verizon shall be verified.
|
20.3
|
For any period of time encompassed in the foregoing background check requirement when the Employee was resident outside of the United States, such background checking shall be conducted by a reputable investigative agency that conducts background checking in the relevant country(ies) for transnational technology firms comparable to Verizon, utilizing database checking, field checking and interviews as needed. The criminal convictions check shall include the equivalent, under relevant non-US law, of those convictions described in Section 20.2.
|
20.4
|
Digital Turbine shall comply with all applicable laws in conducting the background check specified in this Section 20 including but not limited to securing from each Employee who performs tasks under this Renewal Agreement such Employee’s written consent to perform the background checking specified in this Section 20 and to disclose the results thereof to Verizon upon Verizon’s request. Without limitation of the foregoing, Digital Turbine will make all written disclosures to and obtain written consent from each Employee to obtain consumer reports as defined in and required by the Fair Credit Reporting Act. Digital Turbine shall provide such results and written consent to Verizon upon request from Verizon. Digital Turbine may be required to recertify on an annual basis that such background checks were performed. Digital Turbine shall indemnify and hold Verizon harmless from any loss or damage arising from Digital Turbine’s violation of this Section.
|
20.5
|
Without prior review with and consent of Verizon, Digital Turbine shall not assign any Employee to tasks related to this Renewal Agreement if such employee has been convicted of a felony or misdemeanor (or the equivalent thereof under relevant law) within the last seven (7) years if such felony or misdemeanor has any bearing on the Employee’s honesty and integrity, or for whom a warrant is outstanding, or for whom a felony or misdemeanor charge is currently pending, or is on a U.S. Government Specially Designated National or export denial list. The foregoing shall not apply to a minor traffic violation (a moving traffic violation other than reckless driving, hit and run, driving to endanger, vehicular homicide, driving while intoxicated or other criminal offense involving gross negligence, recklessness, intentional or willful misconduct while operating a motor vehicle), to a conviction that has been legally expunged, or to a conviction for a misdemeanor that occurred while the Employee was under the age of twenty-one (21) years.
|
20.6
|
Digital Turbine shall certify to Verizon that Digital Turbine has caused the foregoing Background Checking to be performed for each Employee involved in the work to be done pursuant to this Renewal Agreement within thirty (30) days of the Effective Date; further, Digital Turbine shall annually certify no later than the anniversary of the Effective Date that it has met the foregoing Background Checking requirements for all Employees involved in work done pursuant to this Renewal Agreement.
|
21.
|
General.
|
21.1.
|
Governing Law/Jurisdiction
. This Renewal Agreement will be construed and controlled by the laws of the State of New York, excluding New York’s choice of law provisions, and both Parties consent to the exclusive jurisdiction and venue in the federal courts sitting in the Southern District of New York, unless no federal subject matter jurisdiction exists, in which case both Parties consent to exclusive jurisdiction and venue in the state courts located in the Borough of Manhattan, New York. Both Parties waive all defenses of lack of personal jurisdiction and forum non- conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule.
|
21.2.
|
Compliance with Law
. Each Party and its Affiliates will comply with all applicable laws, rules, and regulations in fulfilling its obligations under this Renewal Agreement, including, without limitation, the U.S. Export Administration Regulations, as well as applicable securities laws, end-user, end use, and destination restrictions issued by U.S. and other governments. Each Party acknowledges that the proprietary data, know-how, software, or other materials or information obtained from the other Party under this Renewal Agreement are commodities and/or technical data that may be subject to the Export Administration Regulations (“EAR”) of the
|
21.3.
|
Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any part of this Renewal Agreement to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control and not involving any fault or negligence of the Delayed Party (“Condition”). If any such Condition occurs, the Party delayed or unable to perform (“Delayed Party”), upon giving prompt notice to the other Party, shall be excused from such performance on a day-to-day basis during the continuance of such Condition (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis during the same period); provided, however, that the Party so affected shall use its best reasonable efforts to avoid or remove such Condition, and both Parties shall proceed immediately with the performance of their obligations under this Renewal Agreement whenever such causes are removed or cease. Labor difficulties, including without limitation, strikes, slowdowns, work stoppage, picketing or boycotts, shall not constitute a Condition that excuses Digital Turbine from performance of its obligations under this Renewal Agreement. In the event of such labor difficulties, Digital Turbine shall use all lawful means to perform Services agreed to under this Renewal Agreement.
|
21.4.
|
Severability
. If any provision of this Renewal Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions will not in any way be affected or impaired, and a valid, legal, and enforceable provision of similar intent and economic impact will be substituted therefore.
|
21.5.
|
Waiver
. The failure by either Party to require the performance of the other Party under any provision of this Renewal Agreement will not affect the right of such Party to require performance under such provision at any time thereafter. No waiver by either Party of a breach of any provision of this Renewal Agreement be taken or held to be a waiver of the provision itself.
|
21.6.
|
Construction. The headings and captions of this Renewal Agreement are inserted only for convenience and identification and are in no way intended to define, limit, or expand the scope and/or intent of this Renewal Agreement.
|
21.7.
|
Relationship of Parties. Digital Turbine and Verizon are independent contractors under this Renewal Agreement, and nothing in this Renewal Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise, or agency between Digital Turbine and Verizon. Neither Digital Turbine nor Verizon will have the power to bind the other or incur obligations on the other's behalf without the other’s prior written consent.
|
21.8.
|
Assignment. Verizon may assign this Renewal Agreement in whole without Digital Turbine’s consent to any of its Affiliates. Otherwise, a Party may not assign this Renewal Agreement in whole or in part without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. This Renewal Agreement will bind and inure to the benefit of the respective successors and permitted assigns of Verizon.
|
21.9.
|
Notices. All notices required by this Renewal Agreement must be in writing and delivered, via United States mail, postage prepaid, courier, or facsimile. Unless otherwise indicated, notices to Verizon will be delivered to the following address: [Omitted] Unless otherwise indicated, notices to Digital Turbine will be delivered to Bill Stone, CEO, Digital Turbine USA, Inc., 110 San Antonio Suite 160 Austin, TX 78701,
bill@digitalturbine.com,
with a courtesy copy to: Legal Department, Digital Turbine USA, Inc., 110 San Antonio Suite 160 Austin, TX 78701,
legal@digitalturbine.com.
Notice will be deemed effective upon receipt.
|
21.10.
|
Counterparts. This Renewal Agreement may be executed (including by electronic transmission of scanned signature pages) in one or more counterparts with the same effect as if the Parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one agreement.
|
21.11.
|
Entire Agreement and Amendment. This Renewal Agreement completely and exclusively states the agreement between Digital Turbine and Verizon regarding its subject matter. Notwithstanding SOW No. 11 to the Original Agreement - Facebook App Manager Integration signed August 16, 2017 and amendments thereof; Amendment One to the Original Agreement (Precession Data) signed June 23, 2015 and SOW No. 8 (Segment By Eligibly) to the Original Agreement signed February 6, 2017, which shall continue to apply, this Agreement supersedes and replaces all prior or contemporaneous understandings, representations, agreements, or other communications between Digital Turbine and Verizon, whether oral or written, regarding its subject matter, and all previous agreements, including but not limited to the Original Agreement No modification of this Renewal Agreement will be valid except in writing signed by Digital Turbine and Verizon.
|
1.
|
DEFINITIONS; INTERPRETATION
|
2.
|
GRANT OF RIGHTS
|
3.
|
AADS REQUIREMENTS
|
1.
|
Company is solely responsible for creating, hosting and maintaining the AADS in accordance with Exhibit A and the Cricket Application Download Service (“CADS”) in accordance with Exhibit A-1 to Supplement 1.
|
2.
|
Company will ensure that the AADS and any third party apps delivered through AADS will not include any Unsuitable Information Services.
|
3.
|
AT&T will have the right to specify the order in which Applications are presented to End Users in the AT&T Application Download Service and whether or not specific Applications are made available through the AT&T Application Download Service.
|
4.
|
Launch of the AADS is subject to Company’s successful completion of AT&T Acceptance Testing. The AADS will be delivered in accordance with the Delivery Schedule attached as
Schedule 1
. Company may not make a material modification to any feature or functionality of any aspect of the AADS without AT&T’s written permission. If Company desires to make a material modification, Company shall present such modification to AT&T for Acceptance Testing at least twenty (20) Business Days in advance of the proposed implementation.
|
5.
|
Company will ensure that the AT&T Application Download Service (“AADS”) operates on Android V 4.0.3 and any upgrades thereto. Company will be required to support operating system updates as follows: Company shall conduct testing and repair of the AT&T Application Download Service as well as provide analysis on any known issues within a minimum of 30 days prior to the device’s MR (Maintenance Release) lab entry date. If the AT&T Application Download Service is not delivered to AT&T at least 30 days before the MR lab entry date or if the AT&T Application Download Service is not compatible with the operating system AT&T reserves the right to remove any version of the AT&T Application Download Service already pre- loaded from the Interactive Devices via the MR.
|
6.
|
Company shall use commercially reasonable efforts to submit commercially-ready device versions of its AT&T Application Download Service for AT&T testing on each of the Interactive Devices.
|
7.
|
Company will make available to AT&T (at no additional cost to AT&T) the standard platform (backend) enhancements, upgrades and releases for the AADS supported by the Interactive Devices (“Standard Upgrades”) no later than the date on which Company makes Standard Upgrades available to other distributors of Company’s “DT Ignite” or equivalent products; provided, AT&T shall not be required to accept any such Standard Upgrades. Standard Upgrades include additional features added to “DT Ignite” or such equivalent products unless material changes are required to be added to the AT&T-specific user interface, in which case the parties will negotiate a mutually agreed statement of work. All Standard Upgrades that are accepted by AT&T are subject to AT&T Acceptance Testing. AT&T will have sole discretion to determine the branding of the AADS and user experience (including, without limitation, on the user interfaces).
|
8.
|
AT&T will have sole discretion to determine whether to include the AT&T Application Download Service on any AT&T Device.
|
9.
|
Company grants to AT&T a non-exclusive, non-transferable, fully paid- up license to Use and display the art supplied by Company (excluding any Company Marks, which are subject to Section 2.5) and included within the user interface for the AADS during the Term and thereafter for use in such user interfaces and in marketing and promotional materials.
|
10.
|
Company will perform, at its expense, all hosting and related operational activities in support of the operation of the AT&T Application Download Service in accordance with the Service Level Agreement attached hereto as Exhibit B.
|
11.
|
Company will ensure that the AT&T Application Download Service conforms to applicable federal, state and local laws, rules and regulations as from time to time in effect and AT&T’s standards for protection of privacy and security. In addition, Company will comply with the requirements contained in Exhibit D (“SISR”).
|
12.
|
Based on device type, device memory and network performance, AT&T shall use commercially reasonable efforts to make available for Company placement at least
[***]
Company-sourced Applications in each Interactive Device model’s list of applications presented to End Users.
|
3.2
|
Permissions
.
|
1.
|
User Permissions
. Company will:
|
2.
|
System Level Permissions
.
|
(a)
|
No later than forty-five (45) days prior to lab entry date for an Interactive Device, Company will notify AT&T in writing, email to suffice, of any System Level Permissions requested for Content to be
pre-loaded
on such device.
|
(b)
|
Prior to distributing any Content via the AADS that requires any System Level Permissions, Company shall provide AT&T with at least forty-five (45) days prior written notice, email to suffice.
|
(c)
|
AT&T shall have the right to require Company to remove System Level Permissions for Content or restrict distribution of the Content to AT&T customers.
|
(d)
|
The list of system level permissions which Company must have approved by AT&T is set forth on Schedule 2 is attached hereto and incorporated herein.
|
(c)
|
The Application or Content violates any applicable law or regulation.
|
4.
|
COMPENSATION, SETTLEMENT, PAYMENT, AND REPORTING
|
5.
|
MARKETING
|
6.
|
USER DATA; SERVICE SECURITY
|
6.1
|
AT&T Data
|
A.
|
Definitions
. For purposes of this Section:
|
B.
|
Ownership of AT&T Data and AT&T Derived Data
.
|
7.
|
WARRANTY
|
8.
|
CONFIDENTIALITY
|
9.
|
PROPERTY RIGHTS
|
9.4
|
AT&T Owned Work Product.
|
1.
|
For purposes of this Section 9.4,
“
Work Product
”
means any services set forth in an Order, which may include, but is not limited to, Company
’
s consultant, professional, technical and engineering services, hosting, maintenance, software development services, installation services, repair, training, and on-site support.
“
Order
”
means any written order executed by AT&T and Company for services in accordance with this Section 9.4. The Intellectual Property Rights referenced in this Section 9.4.1 shall be applicable when AT&T funds the Work Product via direct payment and the parties have expressly agreed in writing to such an Order. The Parties expressly agree that this Section 9.4 shall not apply to any work undertaken by company outside the scope of an Order. An Order will be effective only when mutually agreed in writing by both Parties. Ownership of and all rights in all content, developments, software and work product resulting from work performed by Company under an Order (
“
Work Product
”
) including all Intellectual Property Rights, vests exclusively in AT&T regardless of whether the Work Product was created solely by Company or jointly by AT&T and Company. The Parties expressly agree to consider as a
“
work made for hire
”
any Work Product that qualifies as such under the laws of the United States or other jurisdictions. To the extent that the Work Product does not qualify as a
“
work made for hire
”
or where necessary for any other reason, Company hereby assigns to AT&T all rights, title and interest in such Work Product, and covenants to provide all reasonable assistance, including providing technical information relating to the Work Product and executing all documents of assignment (and cause its employees to provide such information and execute such documents) which AT&T may deem necessary or desirable to perfect its ownership interest in such Work Product, including trademark, patent or copyright applications, or otherwise, in such Work Product. Subject to the terms of the Order and this Agreement, specifically Section 9.4 (b), if the Work Product contains materials Company or others previously or independently developed, Company grants and agrees to grant to AT&T, or obtain for AT&T, a perpetual, non-exclusive, worldwide, assignable transferable, royalty-free license to use, copy, modify, distribute, publicly display, publicly perform, import, manufacture, have made, sell, offer to sell (whether directly or through channels of distribution), exploit and sublicense such materials (and have others do any of the foregoing acts on AT&T
’
s behalf), but only as a part of AT&T
’
s exercise of its rights in the Work Product. Any such license shall include AT&T
’
s right to grant an unrestricted, royalty-free license to its Affiliates. You shall place a copyright or other proprietary notice on the Work Product at AT&T
’
s written request. The Work Product shall constitute AT&T
’
s Confidential Information under this Agreement.
|
(a)
|
If Company wishes to obtain a license from AT&T to any Work Product, and where there is mutual benefit to Company and AT&T, the parties agree to negotiate in good faith, under separate written agreement, mutually agreeable terms and conditions, and to execute and comply with such terms and conditions between Company and AT&T Intellectual Property, the exclusive third party authorized licensor of AT&T’s intellectual property, to grant such license to Company to the Work Product or intellectual property.
|
(b)
|
The Parties understand and agree that the AADS and Intellectual Property Rights, except for AT&T branding and the AT&T user interfaces to which AT&T reserves all rights, in the AADS and DT Ignite are the property of Company and not Work Product as herein defined. AT&T understands and acknowledges that the foregoing provisions shall not interfere in any way with Company’s ability to continue to use, market and exploit DT Ignite.
|
9.6
|
IP Ownership Additional Representations & Warranties
|
i.
|
Company and other entities doing work in furtherance of the Agreement (such as between Company and Company’s Subcontractor(s));
|
ii.
|
Entities doing work in furtherance of the Agreement (such as between Company’s Subcontractor and its Subcontractor(s)); and
|
iii.
|
Company or other entities doing work in furtherance of the Agreement, on the one hand, and their respective employees, on the other hand,
|
10.
|
INDEMNITY
|
10.2
|
Intellectual Property Infringement Indemnity
.
|
A.
|
Definitions
. For purposes of this Section:
|
B.
|
Obligations
.
|
C.
|
Continued Use of Provided Elements Upon Injunction
.
|
D.
|
Exceptions.
Company shall have no liability or obligation to any of the AT&T Indemnified Parties for that portion of a Covered Loss which is based on (and only to the extent such portion is based on):
|
11.
|
TERM, TERMINATION AND TRANSITION
|
12.
|
GENERAL PROVISIONS
|
12.2
|
Insurance
.
|
1.
|
at all times during the term of this Agreement; and
|
2.
|
with respect to any coverage maintained in a “claims-made” policy, for two (2) years following the Term of this Agreement.
|
12.2.2
|
Additional Insurance Agreements
. The Parties agree:
|
iv.
|
Company is responsible for any deductible or self-insured retention.
|
12.2.3
|
The insurance coverage required by this Section includes:
|
1.
|
include AT&T, its Affiliates, and their directors, officers, and employees as Additional Insureds. Company shall provide a copy
|
2.
|
be primary and non-contributory with respect to any insurance or self-insurance that is maintained by AT&T.
|
3.
|
Not contain an exclusion for Professional Liability. If such an exclusion does exist on the policy, refer to the contingent BI/PD requirement under the Professional Liability requirement below.
|
Phone Fax
|
City, State Zip Email
Phone Fax
|
|||
|
|
|||
|
CRICKET WIRELESS
|
Company
|
|
|
|
|
|
||
|
[Omitted]
|
Phil Bramson
Philip.bramson@digital
turbine.com
|
||
|
Escalation
|
|
||
|
[Omitted]
|
Nick Montes
Nick.montes@digitalturbine.com
|
|
|
|
2.
|
Grant of Rights
.
|
3.
|
Cricket Application Download Service Requirements
.
|
(i)
|
“Company will ensure that the Cricket Application Download Service operates on Android V 4.0.3 and above and will exercise commercially reasonable efforts to ensure that the Cricket Application Download Service operates on Windows 10 by December 31, 2015 above pending receipt of permission rights from
|
2.
|
Automatic Preload
. Revenue share tiers, as described in Exhibit C-1, are based on
|
1.
|
Extended Term
. Parties agree to extend the Term of the Agreement for an additional period of two (2) years ending on October 16, 2020 (the “
Extended Term
”), thereafter the Agreement shall renew as stipulated in Section 11.1 of the Agreement.
|
2.
|
Amendment of Business Terms
. Parties agree to work together in good faith to amend the Business Terms specified in Exhibit C of the Agreement, such that AT&T will pay Company a onetime license fee per Activated Client in consideration for utilizing current features and functionalities of the Client on Interactive Devices.
|
3.
|
Integration; Conflicts
.
This Amendment and the Agreement set forth the Parties’ entire agreement with respect to the subject matter hereof and thereof. Except as expressly modified by this Amendment, each and every term and condition set forth in the Agreement, and each Party’s rights and obligations thereunder, shall remain in full force and effect. In the event of a conflict between any term or condition set forth in herein and the Agreement, the terms and conditions of this Amendment shall govern and prevail.
|
4.
|
Counterparts
.
This Amendment may be executed in separate counterparts, each of which when executed and delivered (including without limitation via facsimile or .pdf transmission) will be deemed an original and all of which together shall constitute one and the same instrument and will be binding upon the Parties.
|
Dated: November 5, 2018
|
|
|
|
|
|
|
By:
|
/s/ William Stone
|
|
|
William Stone
|
|
|
Chief Executive Officer
(Principal Executive Officer)
|
Dated: November 5, 2018
|
|
|
|
|
|
|
By:
|
/s/ Barrett Garrison
|
|
|
Barrett Garrison
|
|
|
Chief Financial Officer
(Principal Financial Officer)
|
Dated: November 5, 2018
|
|
|
|
|
|
|
By:
|
/s/ William Stone
|
|
|
William Stone
|
|
|
Chief Executive Officer
(Principal Executive Officer)
|
Dated: November 5, 2018
|
|
|
|
|
|
|
By:
|
/s/ Barrett Garrison
|
|
|
Barrett Garrison
|
|
|
Chief Financial Officer
(Principal Financial Officer)
|