UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K10-K/A
(Amendment No. 1)
(Mark One)
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| ☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 20192021
OR
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| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For transition period from to
Commission File Number: 001-36089
RingCentral, Inc.
(Exact name of Registrant as specified in its charter)
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| Delaware | 94-3322844 |
(State or other jurisdiction
of incorporation or organization)
| (I.R.S. Employer
Identification No.)
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20 Davis Drive
Belmont,, California94002
(Address of principal executive offices)
(650) (650) 472-4100
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered | |
| Class A Common Stock | | RNG | | New York Stock Exchange | |
| par value $0.0001 | | | | | |
Securities registered pursuant to section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x☒ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x☒ No ¨
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x☒ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer | x☒ | | Accelerated filer | ¨ |
| Non-accelerated filer | ¨ | | Smaller reporting company | ☐ |
| | | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No x☒
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Auditor PCAOB ID Number: 185 | | Auditor Name: KPMG LLP | | Auditor Location: San Francisco,California |
The aggregate market value of voting stock held by non-affiliates of the Registrant on June 28, 2019,30, 2021, based on the closing price of $114.92$290.58 for shares of the Registrant’s common stock as reported by the New York Stock Exchange, was approximately $8.4$23.9 billion. Shares of common stock held by each executive officer, director, and their affiliated holders have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of February 19, 2020,18, 2022, there were 76,065,06284,466,941 shares of Class A common stockCommon Stock and 11,039,4739,975,224 shares of Class B common stockCommon Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Information required in response to Part III of Form 10-K (Items 10, 11, 12, 13 and 14) is hereby incorporated by reference to portions of the Registrant’s Proxy Statement for the Annual Meeting of Stockholders to be held in 2020. Such Proxy Statement will be filed by the Registrant with the Securities and Exchange Commission no later than 120 days after the end of the Registrant’s fiscal year ended December 31, 2019.None.
TABLE OF CONTENTS
TABLE OF CONTENTS
PART I.
SPECIALEXPLANATORY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Amendment No. 1 on Form 10-K/A (this “Amendment” or “Form 10-K/A”) to amend the Annual Report on Form 10-K contains forward-looking statements that are based on our management’s beliefs and assumptions and on information currently available to our management. The forward-looking statements are contained principally in, but not limited to, the sections entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations”. Forward-looking statements include all statements that are not historical facts and can be identified by terms such as “anticipates”, “believes”, “could”, “seeks”, “estimates”, “expects”, “intends”, “may”, “plans”, “potential”, “predicts”, “projects”, “should”, “will”, “would” or similar expressions and the negatives of those terms. Forward-looking statements include, but are not limited to, statements about:
our progress against short-term and long-term goals;
our future financial performance;
our anticipated growth, growth strategies and our ability to effectively manage that growth and effect these strategies;
our success in the enterprise market;
anticipated trends, developments and challenges in our business and in the markets in which we operate, as well as general macroeconomic conditions;
our ability to scale to our desired goals, particularly the implementation of new processes and systems and the addition to our workforce;
the impact of competition in our industry and innovation by our competitors;
our ability to anticipate and adapt to future changes in our industry;
our ability to predict subscriptions revenues, formulate accurate financial projections, and make strategic business decisions based on our analysis of market trends;
our ability to anticipate market needs and develop new and enhanced solutions and subscriptions to meet those needs, and our ability to successfully monetize them;
maintaining and expanding our customer base;
maintaining, expanding and responding to changes in our relationships with other companies;
maintaining and expanding our distribution channels, including our network of sales agents and resellers;
our success with our carrier partners;
our ability to sell, market, and support our solutions and services;
our ability to expand our business to larger customers as well as expanding domestically and internationally;
our ability to realize increased purchasing leverage and economies of scale as we expand;
the impact of seasonality on our business;
the impact of any failure of our solutions or solution innovations;
our reliance on our third-party product and service providers;
the potential effect on our business of litigation to which we may become a party;
our liquidity and working capital requirements;
the impact of changes in the regulatory environment;
our ability to protect our intellectual property and rely on open source licenses;
our expectations regarding the growth and reliability of the internet infrastructure;
the timing of acquisitions of, or making and exiting investments in, other entities, businesses, or technologies;
our ability to successfully and timely execute on, integrate, and realize the benefits of any acquisition, investment, strategic partnership, or other strategic transaction we may make or undertake;
our capital expenditure projections;
the estimates and estimate methodologies used in preparing our consolidated financial statements;
the political environment and stability in the regions in which we or our subcontractors operate;
the impact of economic downturns on us and our customers;
our ability to defend our systems and our customer information from fraud and cyber-attack;
our ability to prevent the use of fraudulent payment methods for our solutions;
our ability to retain key employees and to attract qualified personnel; and
the impact of foreign currencies on our non-U.S. business as we expand our business internationally.
Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be significantly different from any future results, performance or achievements expressed or implied by the forward-looking statements. We discuss these risks in greater detail in the section entitled “Risk Factors” and elsewhere in this Annual Report on Form 10-K. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Also, forward-looking statements represent our management’s beliefs and assumptions only as of the date of this Annual Report on Form 10-K. You should read this Annual Report on Form 10-K completely and with the understanding that our actual future results may be significantly different from what we expect.
Except as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual results could differ significantly from those anticipated in these forward-looking statements, even if new information becomes available in the future.
ITEM 1. BUSINESS
Overview
We are a leading provider of software-as-a-service (“SaaS”) solutions that enable businesses to communicate, collaborate, and connect. We believe that our innovative, cloud-based approach disrupts the large market for business communications and collaboration by providing flexible and cost-effective solutions that support distributed workforces, mobile employees, and the proliferation of smartphones and tablets. We enable convenient and effective communications for organizations across all their locations and employees, enabling them to be more productive and more responsive to their customers.
Our cloud-based business communications and collaboration solutions are designed to be easy to use, providing a single user identity across multiple locations and devices, including smartphones, tablets, PCs and desk phones. Our solutions can be deployed rapidly and configured and managed easily. Through our platform, we enable third-party developers and customers to integrate our solution with leading business applications to customize their own business workflows.
Traditionally, business communications have been comprised of a series of inflexible, expensive, and disparate systems: on-premise hardware based private branch exchanges ("PBX systems") which primarily support only voice on desktop phones. The rapid growth of mobile communications has changed the way businesses interact. Employees connect from anywhere with any device, using multiple modes of communications including voice, video, text, messaging, and social media. These forms of flexible communications enable employees to be productive in ways traditional on-premise systems do not support. In addition, our cloud-based SaaS solutions are location and device independent and better suited to address the needs of modern mobile and global enterprise workforces that are hard, if not impossible, for legacy on-premise systems to match.
We believe RingCentral benefits from both the shift to mobile and distributed workforces and the migration of hardware on-premise based communication systems to cloud-based software solutions. RingCentral’s software cloud communications and collaboration platform is designed from the ground-up, specifically for today’s mobile and distributed workforce. RingCentral is a leading provider of global enterprise cloud communications, collaboration, and customer engagement solutions. We provide unified voice, video, on-line meetings, team messaging, digital customer engagement, and contact center solutions. In addition, our differentiated open platform Application Programming Interfaces (“APIs”) enable seamless integration with third-party and custom software applications. These integrations improve business workflows resulting in higher employee productivity and better customer service. Our global delivery capabilities support the needs of multi-national enterprises in multiple countries.
We generate revenues primarily from the sale of subscriptions for our cloud-based services. We focus on acquiring and retaining our customers, adding value to their experience, and increasing their use of our solutions. As their needs change, customers add users to services, upgrade to premium subscription editions which provide additional features and functionality and expand use of other solutions.
We continue to invest in our direct sales force while also developing indirect sales channels to market our brand and sell our solutions. Our indirect sales channels consist of regional and global networks of resellers, carriers including AT&T, Inc. (“AT&T”), TELUS Communications Company (“TELUS”) and BT Group plc (“BT”). We have also entered into strategic partnerships, including with Avaya Holdings Corp. ("Avaya") and Atos SE ("Atos").
In October 2019 we entered into certain agreements for a strategic partnership with Avaya, to introduce a new solution, Avaya Cloud Office by RingCentral ("ACO"), which will be marketed and sold by Avaya and its subsidiaries. In December 2019 we entered into an agreement with Atos, which includes entering into a system integrator relationship and the introduction of a co-branded Unified Communications as a Service ("UCaaS") solution.
We were incorporated in California in 1990 and reincorporated in Delaware on September 26, 2013. Our principal executive offices are located in Belmont, California. Our principal address is 20 Davis Drive, Belmont, California 94002, and our primary website address is www.ringcentral.com. Information contained on, or that can be accessed through, our website, does not constitute part of this Annual Report on Form 10-K and inclusion of our website address in this Annual Report on Form 10-K is an inactive textual reference only.
“RingCentral” and other of our trademarks appearing in this report are our property. This report also contains trade names and trademarks of other companies. We do not intend our use or display of other companies’ trade names or trademarks to imply an endorsement or sponsorship of us by such companies, or any relationship with any of these companies.
Our Solutions
Our cloud-based business communications, collaboration, and customer engagement solutions function across multiple locations and devices, including smartphones, tablets, PCs and desk phones, allow for communication across multiple modes, including high-definition (“HD”) voice, video, SMS, messaging and collaboration, conferencing, online meetings, and fax. Our proprietary solutions enable a more productive and dynamic workforce and are architected using industry standards to meet modern business communications and collaboration requirements, including workforce mobility, “bring-your-own” communications device environments and multiple communications methods.
Our solutions are delivered using a highly available, and rapidly and easily scalable infrastructure, allowing our customers to add new users regardless of where they are located. Our solutions are generally affordable, requiring little to no upfront infrastructure hardware costs or ongoing maintenance and upgrade costs commonly associated with on-premise systems and can be integrated with other existing communication systems.
We believe that our solutions go beyond the core functionality of existing on-premise communications solutions by providing additional key benefits that address the changing requirements of business to allow business communications using voice, HD video web conferencing, SMS, team messaging, collaboration, fax, and social media. The key benefits of our solutions include:
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• | Location Independence. Our cloud-based solutions are designed to be location independent. We seamlessly connect distributed and mobile users, enabling employees to communicate with a single identity whether working from a central location, a branch office, on the road, or at home.
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• | Global. Our RingCentral Global Office capabilities support multinational enterprise workforces. RingCentral Global Office connects multinational workforces globally, while reducing the complexity and high costs of maintaining multiple legacy PBX systems with a single global cloud solution.
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• | Device Independence. Our solutions are designed to work with a broad range of devices, including smartphones, tablets, PCs, and desk phones, enabling businesses to successfully implement a “bring-your-own” communications device strategy.
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• | Instant Activation and Easy Account Management. Our solutions are designed for rapid deployment and ease of management. Our intuitive graphical user interfaces allow administrators and users to set up and manage their business communications system with little or no IT expertise, training, or dedicated staffing.
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• | Scalability. Our cloud-based solutions scale easily and efficiently with the growth of our customers. Customers can add users, regardless of their location, without having to purchase additional infrastructure hardware or software upgrades.
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• | Lower Cost of Ownership. We believe that our customers experience significantly lower cost of ownership compared to legacy on-premise systems. Using our cloud-based solutions, our customers can avoid the significant
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upfront costs of infrastructure hardware, software, ongoing maintenance and upgrade costs, and the need for dedicated and trained IT personnel to support these systems.
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• | Seamless and Intuitive Integration with Other Applications.Applications are proliferating within businesses of all sizes. Integration of these business applications with legacy on-premise systems is typically complex and expensive, which limits the ability of businesses to leverage cloud-based applications. Our platform provides seamless and intuitive integration with multiple popular cloud-based business applications such as Microsoft productivity tools, Google G-Suite, Salesforce CRM, Oracle, Okta, Zendesk, Box, and Workday, as well as customer lines-of business applications.
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We have a portfolio of cloud-based offerings that are subscription-based and made available at different monthly rates, varying by the specific functionalities, services, and number of users. We primarily generate revenues from the sale of subscriptions of our offerings, which include the following:
RingCentral Office.RingCentral Office, our flagship solution, provides a unified experience for communication and collaboration across multiple modes, including HD voice, video, SMS, messaging and collaboration, conferencing, online meetings, and fax. Offered globally, customers can extend RingCentral Office to support their multinational workforce in many countries around the world. This subscription is designed primarily for businesses that require a communications solution, regardless of location, type of device, expertise, size, or budget. Businesses are able to seamlessly connect users working in multiple office locations on smartphones, tablets, PCs and desk phones. We sell RingCentral Office in four editions: Essentials, Standard, Premium, and Ultimate. The features, capabilities and price per user increase from Essentials to Ultimate. The solution capabilities include high definition voice, call management, mobile applications, business SMS and MMS, fax, team messaging and collaboration, audio/video/web conferencing capabilities, out-of-the-box integrations with other cloud-based business applications, and business analytics and reporting. Our platform also enables customers to create, develop, and deploy custom integrations using our APIs. RingCentral Office customers also have available to them RingCentral Global Office.
Key features of RingCentral, Office include:
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• | Cloud-Based Business Communications Solutions. We offer multi-user, multi-extension, cloud-based business communications solutions that do not require installation, configuration, management, or maintenance of on-premise hardware and software. Our solutions are instantly activated and deliver a rich set of functionalities across multiple locations and devices.
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• | Collaboration. We offer team messaging and collaboration solutions which allow diverse teams to stay connected through multiple modes of communication. In addition to team messaging and communications, teams can share tasks, notes, group calendars, and files.
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• | Mobile-Centric Approach.Our solution includes smartphone and tablet mobile applications that customers can use to set up and manage company, department, and user settings from anywhere. Our applications turn iOS and Android smartphones and tablets into business communication devices. Users can change their personal settings instantly and communicate via voice, text, team messaging and collaboration, HD video and web conferencing, and fax. Personal mobile devices are fully integrated into the customer’s cloud-based communication solution, using the company’s numbers, and displaying one of the company’s caller ID for calls made through our mobile applications.
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• | Easy Set-Up and Control. Our user interfaces provide a consistent user experience across smartphones, tablets, PCs, and desk phones, making it intuitive and easy for our customers to quickly discover and use our solution across devices. Among other capabilities, administrators can specify and modify company, department, user settings, auto-receptionist settings, call-handling, and routing rules, and add, change, and customize users and departments.
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• | Flexible Call Routing. Our solution includes an auto-attendant to easily customize call routing for the entire company, departments, groups, or individual employees. It includes a robust suite of communication management options, including time of day, caller ID, call queuing, and sophisticated routing rules for complex call handling for the company, departments, groups, and individual employees.
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• | Integrated Voice, HD Video and Web Conferencing, Text and Fax Communications with One Business Number. By eliminating the need for multiple business numbers, users are able to easily control how, when, and where they conduct their business communications through routing logic with one number. Employees can stay connected, thus increasing efficiency, productivity, and responsiveness to their customers. Having one business number also enables users to keep personal mobile numbers private. RingCentral Rooms and Rooms Connector bring a cloud web conferencing solution to meeting rooms and support for large meetings and Webinars for a monthly per license add-on fee.
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• | Cloud-based Business Application Integrations. Our solution seamlessly integrates with other cloud-based business applications such as Salesforce CRM, Google Cloud, Box, Dropbox, Office365, Outlook, Oracle, Okta, Zendesk, Jira, Asana, and others. For example, our integration with Salesforce CRM brings up customer records immediately based on inbound caller IDs, resulting in increased productivity and efficiency. Our open platform is supported by APIs and software developers’ kits (“SDKs”) that allows developers to integrate our solution with leading business applications or with other custom applications to customize their own business workflows.
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• | RingCentral Global Office. Our solution includes RingCentral Global Office, a single global Unified Communications as a Service (“UCaaS”) solution designed for multinational enterprises that allows these companies to support distributed offices and employees globally with a single cloud solution. With RingCentral Global Office, multinational enterprises can operate in other countries while also acting as one integrated business, with capabilities including local phone numbers, local caller ID, worldwide extension-to-extension dialing, and included minute bundles for international calling.
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• | RingCentral CloudConnect. RingCentral CloudConnect is a service that allows enterprises to leverage their dedicated and secure connections to exchange data directly with the RingCentral cloud. Customers use their preferred network service provider to connect to the RingCentral cloud through a secure data exchange enabling lower latency, greater network reliability and availability, and added security.
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RingCentral Contact Center.Our RingCentral Contact Center isInc., a collaborative contact center solution that delivers omni-channel and integrates with RingCentral Office and RingCentral Glip. RingCentral Contact Center enables businessesDelaware corporation (referred to transformas “RingCentral,” the way they engage their customers across all channels while effectively maximizing agent availability. The solution leverages technology from NICE inContact, Inc., has a comprehensive feature set, and can integrate with RingCentral Office. This enables businesses to build customer loyalty and increase productivity by resolving customer issues faster and more effectively.
RingCentral Engage Digital.RingCentral Engage is a digital customer engagement platform allowing enterprises to interact with their customers through a single platform across all digital channels. The platform uses AI-based smart routing engine that enables agents to efficiently manage customer interactions across digital channels including mobile and in-app messaging, social media, live chats, and email.
RingCentral Engage Voice.Engage Voice is a cloud-based outbound/blended customer engagement platform“Company,” “we,” “us,” or “our”) for midsize and enterprise companies. The platform provides automated dialing capabilities to help accelerate the sales process and improve the time it takes sales teams to reach prospects.
RingCentral Glip. Our RingCentral Glip team messaging and collaboration solution allows diverse teams to stay connected through multiple modes of communication through an integration with RingCentral Office. In addition to usingRingCentralGlip for team messaging and communications, teams can share tasks, notes, group calendars, and files.RingCentralGlip is designed for distributed and mobile teams and offers out-of-the-box integrations with a number of leading cloud business applications such as Asana, Dropbox, Evernote, Jira, Github, Google, and others. Available stand-alone, this solution can be upgraded to the full cloud communications capabilities of RingCentral Office.
RingCentral Meetings. RingCentral Meetings is a collaborative meetings solution that offers web meetings, video conferencing, and screen sharing integrated with team messaging. Available stand-alone, this solution can be upgraded to the full cloud communications capabilities of RingCentral Office.
RingCentral Live Reports. RingCentral Live Reports is an add-on for RingCentral Office customers to gather real-time information needed to maximize the performance with dashboards that contain information on agent utilization and overall customer experience.
RingCentral Professional. RingCentral Professional is a cloud based virtual telephone service offering designed for professionals who are on the go. It provides inbound call answering and management services, and includes inbound local, long-distance, and toll-free minutes.
RingCentral Fax. RingCentral Fax provides online fax capabilities that allow businesses to send and receive fax documents without the need for a fax machine. RingCentral Fax capability is made available to all RingCentral Office customers or as a stand-alone offering at monthly subscription rates that vary based on the desired number of pages and phone numbers allotted to the plan.
Our Customers
We have a diverse and growing customer base across a wide range of industries, including financial services, education, healthcare, legal services, real estate, retail, technology, insurance, construction, hospitality, and state and local government, among others. For thefiscal year ended December 31, 20192021, originally filed with the Securities and 2018, noneExchange Commission (the “SEC”) on March 1, 2022 (the “Original Report”), is being filed for the purpose of including the information required to be disclosed by Part III of Form 10-K. This information was previously omitted from the Original Report in reliance on General Instruction G(3) to Form 10-K , which permits the information in the above referenced items to be incorporated in the Form 10-K by reference from our definitive proxy statement if such proxy statement is filed no later than 120 days after our fiscal year-end. The reference on the cover page of the Original Report to the incorporation by reference to portions of our customers accounted for more than 10% of total revenue. For the year ended December 31, 2017, revenue generated from one of our carrier resellers accounted for 11% of our total revenues.
We sell our solutions to enterprise customers, and small and medium-sized businesses. We define a “customer” as one individual billing relationship for the subscription to our services, which generally correlates to one company account per customer. We continuously expand our solution offering globally and believe that there are additional growth opportunities in international markets.
Marketing, Sales and Support
We use a variety of marketing, sales, and support activities to generate and cultivate ongoing customer demand for our subscriptions, acquire new customers, and engage with our existing customers. We sell through both direct and indirect channels. We provide onboarding implementation support to help our customers set up and configure their newly purchased communications system, as well as ongoing self-service, phone support, online chat support, and training. We also closely track and monitor customer acquisition costs to assess how we are deploying our marketing, sales, and customer support spending.
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• | Marketing. Our marketing efforts include search engine marketing, search engine optimization, affiliates, list buys, shared leads, content leads, appointment setting, radio advertising, online display advertising, sports sponsorships, billboard advertising, tradeshows and events, and other forms of demand generation. We track and measure our marketing costs closely across all channels so that we can acquire customers in a cost-efficient manner.
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• | Direct Sales. We primarily sell our solutions and subscriptions through direct inbound and outbound sales efforts. We have direct sales representatives located in the U.S. and internationally.
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• | Indirect Sales. Our indirect sales channel consists of global and regional networks of resellers, carriers including AT&T, TELUS and BT. Our indirect sales channels help broaden the adoption of our solutions without the need for a large direct sales force.
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• | Customer Support and Services. While our intuitive and easy-to-use user interface serves to reduce our customers’ need for support and services, we provide online chat and phone customer support, as well as post-sale implementation support, as an option to help customers configure and use our solution. We track and measure our customer satisfaction and our support costs closely across all channels to provide a high level of customer service in a cost-efficient manner.
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• | Strategic Partnerships. We have strategic partnerships with several third parties including Avaya and Atos.
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Research and Development
We believe that continued investment in research and development is critical to expanding our leadership position within the cloud-based business communications solutions market. We devote the majority of our research and development resources to software development. Our engineering team has significant experience in various disciplines related to our platform, such as voice, text, team messaging and collaboration, video and fax processing, mobile application development, IP networking and infrastructure, contact center, digital customer engagement, user experience, security, and robust multi-tenant cloud-based system architecture.
Our development methodology, in combination with our SaaS delivery model, allows us to provide new and enhanced capabilities on a regular basis. Based on feedback from our customers and prospects and our reviewdefinitive proxy statement into Part III of the broader business communicationsOriginal Report has been deleted. This Amendment No. 1 hereby amends and SaaS markets, we continuously develop new functionality while maintainingrestates in their entirety the cover page and enhancing our existing solution. We typically have multiple releases per year, where we constantly improve our solutions and introduce new capabilities and features to make our customers’ workforce more productive and to build outItems 10 through 14 of Part III of the feature setOriginal Report.
As required by larger and global enterprises.
As part of our strategy to expand our technological capabilities, we engage in strategic transactions from time to time. For example, we acquired Dimelo, a cloud-based digital customer engagement platform, in October 2018, and Connect First, Inc. (“Connect First”), a cloud-based outbound/blended customer engagement platform for midsize and enterprise companies, in January 2019. These strategic acquisitions enable us to complement our technology and skill sets and expand our solution reach.
Technology and Operations
Our platforms are hosted both in private and public clouds. Our private clouds are built on a highly scalable and flexible infrastructure comprised of commercially available hardware and software components. We believe that both hardware and software components of our platform can be replaced, upgraded or added with minimal or no interruption in service. The system is designed to have no single point-of-failure.
Our private cloud is served from over 25 data centers located in several cities in the United States and throughout the world. Our data centers are designed to host mission-critical computer and communications systems with redundant, fault-tolerant subsystems, and compartmentalized security zones. We maintain a security program designed to ensure the security and integrity of customer data, protect against security threats or data breaches, and prevent unauthorized access to our customers’ data. We limit access to on-demand servers and networks at our production and remote backup facilities.
Intellectual Property
We rely on a combination of patent, copyright, and trade secret laws in the U.S. and other jurisdictions, as well as license agreements and other contractual protections, to protect our proprietary technology. We also rely on a number of registered and unregistered trademarks to protect our brand. In addition, we seek to protect our intellectual property rights by implementing a policy that requires our employees and independent contractors involved in the development of intellectual property on our behalf to enter into agreements acknowledging that all works or other intellectual property generated or conceived by them on our behalf are our property, and assigning to us any rights, including intellectual property rights, that they may claim or otherwise have in those works or property, to the extent allowableRule 12b-15 under applicable law.
Our intellectual property portfolio includes over 200 issued patents, which expire between 2022 and 2038. We also have 45 patent applications pending examination in the U.S. and 16 patent applications pending examination in foreign jurisdictions, all of which are related to U.S. applications. In general, our patents and patent applications apply to certain aspects of our SaaS and mobile applications and underlying communications infrastructure. We are also a party to various license agreements with third parties that typically grant us the right to use certain third-party technology in conjunction with our solutions and subscriptions.
Competition
The market for business communications solutions is very large, rapidly evolving, complex, fragmented and defined by changing technology, and customer needs. We expect competition to continue to increase in the future. We believe that the principal competitive factors in our market include:
subscription features and capabilities;
system reliability, availability, and performance;
speed and ease of activation, setup, and configuration;
ownership and control of the underlying technology;
open platform;
integration with mobile devices;
brand awareness and recognition;
simplicity of the pricing model; and
total cost of ownership.
We believe that we generally compete favorably on the basis of the factors listed above.
We face competition from a broad range of providers of business communications solutions. Some of these competitors include:
traditional on-premise, hardware business communications providers such as Alcatel-Lucent Enterprise, Avaya Inc., Cisco Systems, Inc., Mitel Networks Corporation, NEC Corporation, and Siemens Enterprise Networks, LLC, any of which may now or in the future also host their solutions through the cloud;
software providers such as Microsoft Corporation and Cisco Systems, Inc. that generally license and/or host their software solutions, and their resellers including major carriers and cable companies;
established communications providers that resell on-premise hardware, software, and hosted solutions, such as AT&T, Verizon Communications Inc., Sprint Corporation, and Comcast Corporation in the United States, TELUS and others in Canada, and BT, Vodafone Group Plc, and others in the U.K., all of whom have significantly greater resources than us and do now or may in the future also develop and/or host their own or other solutions through the cloud;
other cloud companies such as 8x8, Inc., Amazon.com, Inc., DialPad, Inc., Fuze Inc., StarBlue, Inc., Intermedia.net, Inc., J2 Global, Inc., LogMeIn, Inc, Microsoft Corporation, Nextiva, Inc., Twilio Inc., Vonage Holdings Corp., West Corporation, and Zoom Video Communications, Inc.;
other large internet companies such as Alphabet Inc. (Google Voice), Facebook, Inc., Oracle Corporation, and salesforce.com, Inc., any of which might launch its own cloud-based business communication services or acquire other cloud-based business communications companies in the future;
providers of communications platform as a service solutions and messaging software platforms with APIs such as Twilio Inc., Vonage Holding Corp., and Slack Technologies, Inc., on which customers can build diverse solutions by integrating cloud communications into business applications;
contact center and customer relationship management providers such as Amazon.com, Inc., Aspect Software, Inc., Avaya Inc., Five9, Inc., NICE InContact, Genesys Telecommunications Laboratories, Inc., Serenova, LLC, Talkdesk, Inc., Vonage Holdings Corp., Salesforce.com, Inc., and Twilio Inc.; and
Digital engagement vendors such as Brand Embassy Ltd, eGain Corporation, Lithium Technologies, LLC, LivePerson, Inc., SparkCentral Inc., among others named above that may offer similar features.
Employees
As of December 31, 2019, we had 2,363 full-time employees. Our employees in France are covered by the Syntec Collective Bargaining Agreement. We are not subject to any other collective bargaining agreements. We believe that our employee relations are good, and we have never experienced any work stoppages.
Regulatory
As a provider of communication services over the Internet, we are subject to regulation in the U.S. by the FCC. Some of these regulatory obligations include contributing to the Federal Universal Service Fund, Telecommunications Relay Service Fund, and federal programs related to phone number administration; providing access to E-911 services; protecting customer information; and porting phone numbers upon a valid customer request. We are also required to pay state and local 911 fees and contribute to state universal service funds in those states that assess interconnected Voice over Internet Protocol (“VoIP”) services. In addition, we have certified a wholly owned subsidiary as a competitive local exchange carrier in thirty-four states. This subsidiary, RCLEC, is subject to the same FCC regulations applicable to telecommunications companies, as well as regulation by the public utility commissions in states where the subsidiary provides services. Specific regulations vary on a state-by-state basis, but generally include the requirement for our subsidiary to register or seek certification to provide its services, to file and update tariffs setting forth the terms, conditions and prices for our intrastate services and to comply with various reporting, record-keeping, surcharge collection, and consumer protection requirements.
As we expand internationally, we will be subject to laws and regulations in the countries in which we offer our subscriptions. Regulatory treatment of communications services over the Internet outside the U.S. varies from country to country, and may be more onerous than imposed on our subscriptions in the U.S. In the United Kingdom, for example, our subscriptions are regulated by Ofcom, which, among other things, requires electronic communications services providers such as our company to provide all users access to both 112 (EU-mandated) and 999 (U.K.-mandated) emergency service numbers at no charge. Similarly, in Canada, our subscriptions are regulated by the CRTC, which, among other things, imposes requirements like those in the U.S. related to the provision of E-911 services, in all areas of Canada where the wireline incumbent carrier offers such 911 services. Our regulatory obligations in foreign jurisdictions could have a material adverse effect on the use of our subscriptions in international locations.
In the course of providing our services, we collect, store, and process many types of data, including personal data. Moreover, our customers can use our subscriptions to store contact and other personal or identifying information, and to process, transmit, receive, store, and retrieve a variety of communications and messages, including information about their own customers and other contacts. Customers are able, and may be authorized under certain circumstances, to use our subscriptions to transmit, receive, and/or store personal information.
There are a number of federal, state, local, and foreign laws and regulations, such as the European Union's General Data Protection Regulation ("GDPR") and the recently enacted California Consumer Privacy Act, as well as contractual obligations and industry standards, that provide for certain obligations and restrictions with respect to data privacy and security, and the collection, storage, retention, protection, use, processing, transmission, sharing, disclosure, and protection of personal information and other customer data. We expect that with the implementation of our Global Office solution, we may become subject to additional data privacy regulations in other countries throughout the world. The scope of these obligations and restrictions is changing, subject to differing interpretations, and may be inconsistent among countries or conflict with other rules, and their status remains uncertain.
As Internet commerce and communication technologies continue to evolve, thereby increasing online service providers’ and network users’ capacity to collect, store, retain, protect, use, process, and transmit large volumes of personal information, increasingly restrictive regulation by federal, state, or foreign agencies becomes more likely.
Regulations that do not directly apply to our business, but which do apply to our customers and partners, can also impact our business. As we expand our business, addressing customer and partner requirements in new jurisdictions and new verticals often requires investment on our part to address regulations that apply to our customers. Globally, these regulations continue to be introduced and to change over time. Such regulations can impact our ability to offer services to various customer segments, and our cost to deliver our services.
See the section entitled “Risk Factors” for more information.
Available Information
We make available our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, freein connection with this Form 10-K/A, our Chief Executive Officer and interim Chief Financial Officer are providing Rule 13a-14(a) certifications as included herein. We are amending Item 15 of charge on our website, ir.ringcentral.comPart IV solely to reflect the inclusion of these certifications.
Except as soon as reasonably practicable after they are electronically filed withdescribed above, this Form 10-K/A does not modify or furnishedupdate disclosure in, or exhibits to, the SecuritiesOriginal Report. Furthermore, this Form 10-K/A does not change any previously reported financial results, nor does it reflect events occurring after the filing date of the Original Report. Information not affected by this Form 10-K/A remains unchanged and reflects the disclosures made at the time the Original Report was filed.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Composition of the Board of Directors
We manage our business affairs under the direction of our board of directors, which is currently composed of eight members. Seven of our directors are independent within the meaning of the applicable rules of the New York Stock Exchange Commission,(“NYSE”). Each director’s term continues until the election and qualification of such director’s successor, or the “SEC”. In addition, the SEC maintains an internet site that contains reports, proxysuch director’s earlier death, resignation, or removal.
The names, ages, and information statements, andcertain other information regarding issuers that file electronically with the SEC at www.sec.gov.
The Company announces material information to the public about the Company, its solutions and services and other matters through a varietyas of means, including the Company’s website (www.ringcentral.com), the investor relations section of its website (ir.ringcentral.com), press releases, filings with the SEC, and public conference calls, in order to achieve broad, non-exclusionary distribution of information to the public. The Company encourages investors and others to review the information it makes public in these locations, as such information could be deemed to be material information. Please note that this list may be updated from time to time.
ITEM 1A. RISK FACTORS
This Report contains forward-looking statements thatMarch 31, 2022 for each director are subject to risks and uncertainties that could cause actual results to differ materially from those projected. These risks and uncertainties include, but are not limited to, the risk factors set forth below. The risks
| | | | | | | | | | | | | | | | | | | | |
| Nominees | | Age | | Position | | Director Since |
| Vladimir Shmunis | | 61 | | Chairman and Chief Executive Officer | | 1999 |
| Mignon Clyburn | | 60 | | Director | | 2020 |
| Arne Duncan | | 57 | | Director | | 2021 |
Kenneth Goldman(1)(2) | | 72 | | Director | | 2017 |
Michelle McKenna(1)(2)(3) | | 56 | | Director | | 2015 |
Robert Theis(2)(3) | | 60 | | Director | | 2011 |
Allan Thygesen(3) | | 59 | | Director | | 2015 |
Neil Williams(1) | | 69 | | Director | | 2012 |
| | | | | | | | |
| (1) | | Member of the audit committee |
| (2) | | Member of the nominating and corporate governance committee |
| (3) | | Member of the compensation committee |
Vladimir Shmunis is one of our co-founders and uncertainties described in this Report are not the only ones we face. Additional riskshas served as our Chief Executive Officer, or CEO, and uncertainties not presently known to us or that we currently believe are immaterial may also affect our business. If any of these known or unknown risks or uncertainties actually occurs and have a material adverse effect on us, our business, financial condition and results of operations could be seriously harmed.
Risks Related to Our Business and Our Industry
We have incurred significant losses and negative cash flows in the past and anticipate continuing to incur losses for at least the foreseeable future, and we may therefore not be able to achieve or sustain profitability in the future.
We have incurred substantial net lossesChairman since our inception. Over the past few years, we have spent considerable amountsinception in 1999. Prior to RingCentral, from 1992 to 1998, Mr. Shmunis served as President and Chief Executive Officer of timeRing Zero Systems, Inc., a desktop communications software provider founded by Mr. Shmunis and moneyacquired by Motorola, Inc. From 1982 to develop new business communications solutions and enhanced versions of our existing business communications solutions to position us for future growth. Additionally, we have incurred substantial losses and expended significant resources upfront to market, promote and sell our solutions and expect to continue to do so in the future. We also expect to continue to invest for future growth, including for advertising, customer acquisition, technology infrastructure, storage capacity, services1992, Mr. Shmunis held various software development and international expansion. In addition, as a public company, we incur significant accounting, legal, and other expenses.
We expect to continue to incur losses for at least the foreseeable future and will have to generate and sustain increased revenues to achieve future profitability. Achieving profitability will require us to increase revenues, manage our cost structure, and avoid significant liabilities. Revenue growth may slow, revenues may decline, or we may incur significant losses in the future formanagement roles with a number of possible reasons,Silicon Valley companies, including general macroeconomic conditions, increasing competition (including competitive pricing pressures),Convergent Technologies, Inc. and Ampex Corporation. Mr. Shmunis holds a decreaseB.S. in Computer Science and an M.S. in Computer Science from San Francisco State University.
Our board of directors believes that Mr. Shmunis possesses specific attributes that qualify him to serve as a director, including the perspective and experience he brings as our CEO and his experience as an executive in the growthtechnology industry. Our board of directors also believes that he brings historical knowledge, operational expertise and continuity to the board of directors.
Mignon Clyburn has served on our board of directors since November 2020. Ms. Clyburn has served as President of MLC Strategies, LLC, a Washington, D.C.-based consulting firm, since January 2019, and previously served as a Fellow at Open Society Foundations, a philanthropic organization, from June 2018 to January 2019. Prior to this, Ms. Clyburn served as a Commissioner of the markets in which we compete, in particular the SaaS market, or if we fail for any reason to continue to capitalize on growth opportunities. Additionally, we may encounter unforeseen operating expenses, difficulties, complications, delays, service delivery, and quality problems and other unknown factors that may result in losses in future periods. If these losses exceed our expectations or our revenue growth expectations are not met in future periods, our financial performance will be harmed and our stock price could be volatile or decline.
Our quarterly and annual results of operations have fluctuated in the past and may continue to do so in the future. As a result, we may fail to meet or to exceed the expectations of research analysts or investors, which could cause our stock price to fluctuate.
Our quarterly and annual results of operations have varied historically from period to period, and we expect that they will continue to fluctuate due to a variety of factors, many of which are outside of our control, including:
our ability to retain existing customers, resellers, and carriers, and expand our existing customers’ user base, and attract new customers;
our ability to introduce new solutions;
the actions of our competitors, including pricing changes or the introduction of new solutions;
our ability to effectively manage our growth;
our ability to successfully penetrate the market for larger businesses;
the mix of annual and multi-year subscriptions at any given time;
the timing, cost, and effectiveness of our advertising and marketing efforts;
the timing, operating cost, and capital expenditures related to the operation, maintenance and expansion of our business;
our ability to successfully and timely execute on, integrate, and realize the benefits of any acquisition, investment, strategic partnership, or other strategic transaction or partnership we may make or undertake;
service outages or actual or perceived information security breaches and any related impact on our reputation;
our ability to accurately forecast revenues and appropriately plan our expenses;
our ability to realize our deferred tax assets;
costs associated with defending and resolving intellectual property infringement and other claims;
changes in tax laws, regulations, or accounting rules;
the timing and cost of developing or acquiring technologies, services or businesses, and our ability to successfully manage any such acquisitions;
the impact of foreign currencies on our business as we continue to expand our business internationally; and
the impact of worldwide economic, political, industry, and market conditions.
Any one of the factors above, or the cumulative effect of some or all of the factors referred to above, may result in significant fluctuations in our quarterly and annual results of operations. This variability and unpredictability could result in our failure to meet our publicly announced guidance or the expectations of securities analysts or investors for any period, which could cause our stock price to decline. In addition, a significant percentage of our operating expenses is fixed in nature and is based on forecasted revenues trends. Accordingly, in the event of revenue shortfalls, we may not be able to mitigate the negative impact on net income (loss) and margins in the short term. If we fail to meet or exceed the expectations of research analysts or investors, the market price of our shares could fall substantially, and we could face costly lawsuits, including securities class-action suits.
Our rapid growth and the quickly changing markets in which we operate make it difficult to evaluate our current business and future prospects, which may increase the risk of investing in our stock.
We have grown rapidly since 2009, when we introduced RingCentral Office, our current flagship product. We have encountered and expect to continue to encounter risks and uncertainties frequently experienced by growing companies in rapidly changing markets. If our assumptions regarding these uncertainties are incorrect or change in reaction to changes in our markets, or if we do not manage or address these risks successfully, our results of operations could differ materially from our expectations, and our business could suffer.
Growth may place significant demands on our management and our infrastructure.
We have recently experienced substantial growth in our business. This growth has placed and may continue to place significant demands on our management and our operational and financial infrastructure. As our operations grow in size, scope, and complexity, we will need to increase our sales and marketing efforts and add additional sales and marketing personnel in various regions worldwide and improve and upgrade our systems and infrastructure to attract, service, and retain an increasing number of customers. For example, we expect the volume of simultaneous calls to increase significantly as our customer base grows. Our network hardware and software may not be able to accommodate this additional simultaneous call volume. The expansion of our systems and infrastructure will require us to commit substantial financial, operational, and technical resources in advance of an increase in the volume of business, with no assurance that the volume of business will increase. Any such additional capital investments will increase our cost base.
Continued growth could also strain our ability to maintain reliable service levels for our customers, resellers, and carriers develop and improve our operational, financial and management controls, enhance our billing and reporting systems and procedures and recruit, train and retain highly skilled personnel. In addition, our existing systems, processes, and controls may not prevent or detect all errors, omissions, or fraud. We may also experience difficulties in managing improvements to our systems, processes, and controls or in connection with third-party software licensed to help us with such improvements. Any future growth, particularly as we continue to expand internationally, would add complexity to our organization and require effective communication and coordination throughout our organization. Additionally, our productivity and the quality of our solutions and services may be adversely affected if we do not integrate and train our new employees quickly and effectively. If we fail to achieve the necessary level of efficiency in our organization as we grow, our business, results of operations and financial condition could be materially and adversely affected.
Our future operating results will rely in part upon the successful execution of our strategic partnerships with Avaya and others, which may not be successful.
A strategic partnership between two independent businesses is a complex, costly, and time-consuming process that will require significant management attention and resources. Realizing the benefits of our strategic partnerships, particularly our relationship with Avaya Holdings Corp. and its subsidiaries ("Avaya"), will depend in part on our ability to work with our strategic partners to develop, market and sell co-branded solutions, such as Avaya Cloud Office by RingCentral ("ACO"). Setting up and maintaining the operations and processes of these strategic partnerships may cause us to incur significant costs, disrupt our business and, if implemented ineffectively, would limit the expected benefits to us. In addition, the process of bringing ACO and other co-branded solutions to market may take longer than anticipated, which could negate or reduce our anticipated benefits and revenue opportunities. In addition, we must be successful in marketing and selling ACO to realize the benefits of our prepayment to Avaya
of $345 million in our common stock. The failure to successfully and timely implement and operate our strategic partnerships could harm our ability to realize the anticipated benefits of these partnerships and could adversely affect our results of operations.
We face intense competition in our markets and may lack sufficient financial or other resources to compete successfully.
The cloud-based business communications and collaboration solutions industry is competitive, and we expect competition to increase in the future. We face intense competition from other providers of business communications and collaboration systems and solutions.
Our competitors include traditional on-premise, hardware business communications providers such as Alcatel-Lucent Enterprise, Avaya Inc., Cisco Systems, Inc., Mitel Networks Corporation, NEC Corporation, Siemens Enterprise Networks, LLC, their resellers, and others, as well as companies such as Microsoft Corporation and Cisco Systems, Inc., and their resellers that license their software. In addition, certain of our carriers and strategic partners, such as AT&T, BT, TELUS, Avaya, and Atos SE ("Atos") sell or are expected to sell our solutions, but they are also competitors for business communications. These companies have significantly greater resources than us and currently, or may in the future, develop and/or host their own or other solutions through the cloud. Such competitors may not be successful in or cease marketing and selling our solutions to their customers and ultimately be able to transition some or all of those customers onto their competing solutions, which could materially and adversely affect our revenues and growth. We also face competition from other cloud companies and established communications providers that resell on-premise hardware, software, and hosted solutions, such as 8x8, Inc., Amazon.com, Inc., Dialpad, Inc., Fuze, Inc., StarBlue, Inc., Intermedia.net, Inc., J2 Global, Inc., LogMeIn, Inc, Microsoft Corporation, Nextiva, Inc., Twilio Inc., Vonage Holdings Corp., West Corporation, and Zoom Video Communications, Inc., which announced a voice solution. Established communications providers, such as AT&T, Verizon Communications Inc., Sprint Corporation and Comcast Corporation in the United States, TELUS and others in Canada, and BT, Vodafone Group plc, and others in the U.K., that resell on-premise hardware, software, and hosted solutions, compete with us in business communications and currently, or may in the future, develop and/or host their own cloud solutions. We may also face competition from other large Internet companies, such as Alphabet Inc. (Google Voice), Facebook, Inc., Oracle Corporation, and salesforce.com, inc., any of which might launch its own cloud-based business communications services or acquire other cloud-based business communications companies in the future. We also compete against providers of communications platform as a service solutions and messaging software platforms with APIs such as Twilio Inc., Vonage Holdings Corp., and Slack Technologies, Inc., on which customers can build diverse solutions by integrating cloud communications into business applications. We face competition with respect to this solution from contact center and customer relationship management providers such as Amazon.com, Inc., Aspect Software, Inc., Avaya Inc., Five9, Inc., NICE InContact, Genesys Telecommunications Laboratories, Inc., Serenova, LLC, Talkdesk, Inc., Vonage Holdings Corp., salesforce.com, inc., and Twilio Inc. We also face competition from digital engagement vendors such as Brand Embassy Ltd, eGain Corporation, Lithium Technologies, LLC, LivePerson, Inc., SparkCentral Inc., among others named above that may offer similar features.
Many of our current and potential competitors have longer operating histories, significantly greater resources and name recognition, more diversified offerings, and larger customer bases than we have. As a result, these competitors may have greater credibility with our existing and potential customers and may be better able to withstand an extended period of downward pricing pressure. In addition, certain of our competitors have partnered with, or been acquired by, and may in the future partner with or acquire, other competitors to offer services, leveraging their collective competitive positions, which makes it more difficult to compete with them and could significantly and adversely affect our results of operations. Demand for our platform is also sensitive to price. Many factors, including our marketing, user acquisition and technology costs, and our current and future competitors’ pricing and marketing strategies, can significantly affect our pricing strategies. Our competitors may be able to adopt more aggressive pricing policies and devote greater resources to the development, promotion and sale of their services than we can to ours. Some of these service providers have in the past and may choose in the future to sacrifice revenues in order to gain market share by offering their services at lower prices or for free, or offering alternative pricing models, such as “freemium” pricing, in which a basic offering is provided for free with advanced features provided for a fee, on the services they offer. Our competitors may also offer bundled service arrangements offering a more complete service offering, despite the technical merits or advantages of our subscriptions. Competition could result in a decrease to our prices, slow our growth, increase our customer turnover, reduce our sales, or decrease our market share.
We rely and may in the future rely significantly on our strategic partners, resellers, and carriers to sell our subscriptions; our failure to effectively develop, manage, and maintain our indirect sales channels could materially and adversely affect our revenues.
Our future success depends on our continued ability to establish and maintain a network of channel relationships, and we expect that we will need to expand our network in order to support and expand our historical base of smaller enterprises as well as attract and support larger customers and expand into international markets. An increasing portion of our revenues are
derived from our network of sales agents and resellers, which we refer to collectively as resellers, many of which sell or may in the future decide to sell their own services or services from other business communications providers. We generally do not have long-term contracts with these resellers, and the loss of or reduction in sales through these third parties could materially reduce our revenues. Our competitors may in some cases be effective in causing our current or potential resellers to favor their services or prevent or reduce sales of our subscriptions. Furthermore, while AT&T, BT, and TELUS also sell our solutions, and Avaya is expected to introduce the new ACO solution commencing at the end of the first quarter of 2020, they are also competitors for business communications. These companies have significantly greater resources than us and currently, or may in the future, develop and/or host their own or other solutions through the cloud. Such competitors may cease marketing or selling our solutions to their customers and ultimately be able to transition some or all of those customers onto their competing solutions, which could materially and adversely affect our revenues and growth. In this regard, AT&T launched a competing hosted business communications solution in 2016, and new subscriptions for our solution sold by AT&T declined to an immaterial level in 2017 and into 2018. In August 2018, we entered into a revised agreement with AT&T, under which AT&T resumed reselling our solutions, and sales of our solutions by AT&T have increased as a result, but there can be no guarantee that AT&T will not cease reselling our solutions in the future. We also recently entered into certain agreements for strategic partnerships with Avaya and Atos to sell certain of our solutions. We expect that the ACO solution will be introduced at the end of the first quarter of 2020; however, there can be no guarantee that Avaya or any of its channel partners will be successful in marketing or selling our solutions or that they will not cease marketing or selling our solutions in the future. If AT&T, Avaya and its channel partners, or Atos, are not successful in marketing and selling our solutions or cease to market and sell our solutions, our revenues and growth could be significantly and adversely affected. If we fail to maintain relationships with our resellers, carriers and strategic partners or fail to develop new and expanded relationships in existing or new markets, or if our networks of indirect channel relationships are not successful in their sales efforts, sales of our subscriptions may decrease and our operating results would suffer. In addition, we may not be successful in managing, training, and providing appropriate incentives to our existing resellers, carriers and strategic partners, and they may not be able to commit adequate resources in order to successfully sell our solutions.
Recruiting and retaining qualified resellers and carriers in our network and training them in our technology and subscription offerings requires significant time and resources. To develop and expand our indirect sales channels, we must continue to scale and improve our processes and procedures to support these channels, including investment in systems and training. Many resellers and carriers may not be willing to invest the time and resources required to train their staff to effectively market our subscriptions.
To deliver our subscriptions, we rely on third parties for our network connectivity and for certain of the features in our subscriptions.
We currently use the infrastructure of third-party network service providers, including CenturyLink, Inc. and Bandwidth.com, Inc. in North America and several others internationally, to deliver our subscriptions over their networks. Our third-party network service providers provide access to their Internet protocol (“IP”) networks and public switched telephone networks, and provide call termination and origination services, including 911 emergency calling in the U.S. and equivalent services internationally, and local number portability for our customers. We expect that we will continue to rely heavily on third-party network service providers to provide these subscriptions for the foreseeable future.
Through our wholly-owned local exchange carrier subsidiary, RCLEC, Inc. (“RCLEC”), we also obtain certain connectivity and network services directly from incumbent local exchange carriers (“ILECS”) and from other competitive local exchange carriers (“CLECs”) in certain geographic markets at lower prices than we pay for such services through third-party network service providers. However, RCLEC also uses the infrastructure of third-party network service providers to deliver its services and the ILECs may favor themselves and their affiliates may not provide network services to us at lower prices than we could obtain through third-party CLECs, or at all. If we are unable to continue to reduce our pricing as a result of obtaining network services through our subsidiary, we may be forced to rely on other third-party network service providers and be unable to effectively lower our cost of service. Historically, our reliance on third-party networks has reduced our operating flexibility and ability to make timely service changes and control quality of service, and we expect that this will continue for the foreseeable future. If any of these network service providers stop providing us with access to their infrastructure, fail to provide these services to us on a cost-effective basis, cease operations, or otherwise terminate these services, the delay caused by qualifying and switching to another third-party network service provider, if one is available, could have a material adverse effect on our business and results of operations.
In addition, we currently use and may in the future use third-party service providers to deliver certain features of our subscriptions. For example, we rely on Zoom Video Communications for our HD video and web conferencing and screen sharing features, Bandwidth.com for our texting capabilities, and NICE inContact, Inc. for our contact center capabilities. We do not or may not in the future, have long-term contracts with certain of these third-party providers. If any of these service providers elects to stop providing us with access to their services, fails to provide these services to us on a cost-effective basis, ceases operations,
or otherwise terminates these services, the delay caused by qualifying and switching to another third-party service provider, if one is available, or building a proprietary replacement solution could have a material adverse effect on our business and results of operations.
Finally, if problems occur with any of these third-party network or service providers, it may cause errors or poor call quality in our subscriptions, and we could encounter difficulty identifying the source of the problem. The occurrence of errors or poor call quality in our subscriptions, whether caused by our systems or a third-party network or service provider, may result in the loss of our existing customers, delay or loss of market acceptance of our subscriptions, termination of our relationships and agreements with our resellers or carriers, or liability for failure to meet service level agreements, and may seriously harm our business and results of operations.
We rely on third-party software that may be difficult to replace or which could cause errors or failures of our subscriptions.
We rely on software licensed from certain third parties in order to offer our solutions. In some cases, we integrate third-party licensed software components into our platform. This software may not continue to be available at reasonable prices or on commercially reasonable terms, or at all. Any loss of the right to use any of this software could significantly increase our expenses and otherwise result in delays in the provisioning of our solutions until equivalent technology is either developed by us, or, if available, is identified, obtained, and integrated. Any errors or defects in third-party software could result in errors or a failure of our solutions, which could harm our business.
Interruptions or delays in service from our third-party data center hosting facilities and co-location facilities could impair the delivery of our subscriptions, require us to issue credits or pay penalties and harm our business.
We currently serve our North American customers from geographically disparate data center hosting facilities in North America, where we lease space from Equinix, Inc., and other providers, and we serve our European customers from third-party data center hosting facilities in Europe. We also use third-party co-location facilities located in various international regions to serve our customers in these regions. Certain of our solutions are hosted by third party data center facilities including Amazon Web Services, Inc. (“AWS”), NICE inContact, Inc., and Google Cloud Platform. In addition, RCLEC uses third-party co-location facilities to provide us with network services at several locations. Damage to, or failure of, these facilities, the communications network providers with whom we or they contract, or with the systems by which our communications providers allocate capacity among their customers, including us, or software errors, have in the past and could in the future result in interruptions in our services. Additionally, in connection with the addition of new data centers or expansion or consolidation of our existing data center facilities, we may move or transfer our data and our customers’ data to other data centers. Despite precautions that we take during this process, any unsuccessful data transfers may impair or cause disruptions in the delivery of our subscriptions. Interruptions in our subscriptions may reduce our revenues, may require us to issue credits or pay penalties, subject us to claims and litigation, cause customers to terminate their subscriptions and adversely affect our renewal rates and our ability to attract new customers. Our ability to attract and retain customers depends on our ability to provide customers with a highly reliable subscription and even minor interruptions in our subscriptions could harm our brand and reputation and have a material adverse effect on our business.
As part of our current disaster recovery arrangements, our North American and European infrastructure and our North American and European customers’ data is currently replicated in near real-time at data center facilities in the U.S. and Europe, respectively. We do not control the operation of these facilities or of our other data center facilities or RCLEC’s co-location facilities, and they are vulnerable to damage or interruption from earthquakes, floods, fires, power loss, telecommunications failures, and similar events. They may also be subject to human error or to break-ins, sabotage, acts of vandalism, and similar misconduct.
Despite precautions taken at these facilities, the occurrence of a natural disaster, human error, or an act of terrorism or other unanticipated problems at these facilities could result in lengthy interruptions in our subscriptions. Even with the disaster recovery arrangements in place, our subscriptions could be interrupted.
We may also be required to transfer our servers to new data center facilities in the event that we are unable to renew our leases on acceptable terms, if at all, or the owners of the facilities decide to close their facilities, and we may incur significant costs and possible subscription interruption in connection with doing so. In addition, any financial difficulties, such as bankruptcy or foreclosure, faced by our third-party data center operators, or any of the service providers with which we or they contract may have negative effects on our business, the nature and extent of which are difficult to predict. Additionally, if our data centers are unable to keep up with our increasing needs for capacity, our ability to grow our business could be materially and adversely impacted.
Failures in Internet infrastructure or interference with broadband access could cause current or potential users to believe that our systems are unreliable, possibly leading our customers to switch to our competitors or to avoid using our subscriptions.
Unlike traditional communications services, our subscriptions depend on our customers’ high-speed broadband access to the Internet. Increasing numbers of users and increasing bandwidth requirements may degrade the performance of our services and applications due to capacity constraints and other Internet infrastructure limitations. As our customer base grows and their usage of our services increases, we will be required to make additional investments in network capacity to maintain adequate data transmission speeds, the availability of which may be limited, or the cost of which may be on terms unacceptable to us. If adequate capacity is not available to us as our customers’ usage increases, our network may be unable to achieve or maintain sufficiently high reliability or performance. In addition, if Internet access service providers have outages or deteriorations in their quality of service, our customers will not have access to our subscriptions or may experience a decrease in the quality of our services. Frequent or persistent interruptions could cause current or potential users to believe that our systems or services are unreliable, leading them to switch to our competitors or to avoid our subscriptions, and could permanently harm our reputation and brands.
In addition, users who access our subscriptions and applications through mobile devices, such as smartphones and tablets, must have a high-speed connection, such as Wi-Fi, 3G, 4G, 5G, or LTE, to use our services and applications. Currently, this access is provided by companies that have significant and increasing market power in the broadband and Internet access marketplace, including incumbent phone companies, cable companies, and wireless companies. Some of these providers offer solutions and subscriptions that directly compete with our own offerings, which can potentially give them a competitive advantage. Also, these providers could take measures that degrade, disrupt or increase the cost of user access to third-party services, including our subscriptions, by restricting or prohibiting the use of their infrastructure to support or facilitate third-party services or by charging increased fees to third parties or the users of third-party services, any of which would make our subscriptions less attractive to users, and reduce our revenues.
Further, in January 2018, the Federal Communications Commission (the “FCC”) releasedfrom August 2009 to June 2018, including as acting chair. While at the FCC, she was committed to closing the digital divide and championed the modernization of the agency’s Lifeline Program, which assists low-income consumers with voice and broadband service. In addition, Ms. Clyburn promoted diversity in media ownership, initiated Inmate Calling Services reforms, supported inclusion in STEM opportunities and fought for an order reclassifying broadbandOpen Internet. Prior to her federal appointment, Ms. Clyburn served 11 years on the Public Service Commission of South Carolina and worked for nearly 15 years as publisher of the Coastal Times, a Charleston weekly newspaper focused on the African American community. Ms. Clyburn has served as a member of the board of directors of Charah Solutions, Inc., a provider of environmental and maintenance services to the power generation industry, since March 2019, and as a member of the board of directors of Lions Gate Entertainment Corp., an entertainment company, since September 2020. Ms. Clyburn holds a B.S. in Banking, Finance and Economics from the University of South Carolina.
Our board of directors believes that Ms. Clyburn possesses specific attributes that qualify her to serve as a director, including her experience as a regulator of public utilities and as a federal commissioner in the telecommunications sector.
Arne Duncan has served on our board of directors since February 2021. Mr. Duncan served as a member of the board of directors of Pluralsight, Inc. from December 2017 to April 2021 and as a member of the board of managers of Pluralsight Holdings from June 2016 to April 2021. Since March 2016, Arne has both served as a managing partner of Emerson Collective and also led ChicagoCRED, a nonprofit focused on reducing gun violence in his hometown. Mr. Duncan previously served as the U.S. Secretary of Education from January 2009 to December 2015. Mr. Duncan currently serves on the board of directors of several private companies. Mr. Duncan holds a B.A. degree in Sociology from Harvard University.
Our board of directors believes that Mr. Duncan possesses specific attributes that qualify him to serve as a director, including his professional experience public education sector.
Kenneth Goldman has served on our board of directors since June 2017. Since March 2018, Mr. Goldman has served as President of Hillspire LLC, a wealth management services provider, where he also previously served as a contractor from September 2017 to March 2018. From October 2012 to June 2017, Mr. Goldman served as the Chief Financial Officer of Yahoo! Inc., an Internet commerce website, where he was responsible for Yahoo’s global finance functions including financial planning and analysis, controllership, tax, treasury and investor relations. From September 2007 to October 2012, Mr. Goldman was the Senior Vice President, Finance and Administration and Chief Financial Officer of Fortinet Inc., a provider of threat management technologies. From November 2006 to August 2007, Mr. Goldman served as Executive Vice President and Chief Financial Officer of Dexterra, Inc., a mobile enterprise software company. From August 2000 until March 2006, Mr. Goldman served as Senior Vice President of Finance and Administration and Chief Financial Officer of Siebel Systems, Inc., a supplier of customer software solutions and services. Previously, Mr. Goldman has been the Chief Financial Officer of Sybase, Inc., an enterprise software and services company (acquired by SAP SE), Excite@Home, an internet access provider, Cypress Semiconductor Corporation, a semiconductor company, and VLSI Technology, Inc., an integrated circuit designer and manufacturer (acquired by Philips Electronics). Mr. Goldman currently serves on the board of directors of NXP Semiconductor N.V., a global semiconductor manufacturer, GoPro, Inc., a technology company, Zuora Inc., a subscription software company and Fortinet, Inc., a cybersecurity company, and previously served on the board of directors of TriNet Group, Inc., a human resources management company, from August 2009 to July 2020. He also is a Trustee Emeritus of Cornell University. Mr. Goldman also currently serves on the board of directors of several private companies. From December 1999 to December 2003, Mr. Goldman served on the Financial Accounting Standards Board’s primary Advisory Council (“FASAC”). Mr. Goldman was appointed in July 2018 to serve on the Sustainability Accounting Standards Board, now a part of The Value Reporting Foundation, and previously served a three-year term on the Public Company Accounting Oversight Board’s Standing Advisory Group (“SAG”). Mr. Goldman holds a B.S. in Electrical Engineering from Cornell University and an M.B.A. from Harvard Business School.
Our board of directors believes that Mr. Goldman is qualified to serve as a member of the board of directors based on his experience on the boards of directors of numerous companies, his extensive executive experience and his service as a member of FASAC and SAG. He provides a high level of expertise and significant leadership experience in the areas of finance, accounting and audit oversight.
Michelle McKenna has served on our board of directors since March 2015.Ms. McKenna currently serves as the Founder and Chief Executive Officer of the Michelle McKenna Collaborative, an advisory and consulting firm. Prior to founding the Michelle McKenna Collaborative, Ms. McKenna served as Senior Vice President and Chief Information Officer of the NFL, a professional sports league, from September 2012 to April 2022.From May 2011 to September 2012, Ms. McKenna served as Senior Vice President and Chief Information Officer at Constellation Energy, a provider of electricity, natural gas and sustainable solutions to residential and business customers.From July 2010 to May 2011, Ms. McKenna served as President of Vision Interactive Media Group, a global digital interactive media solutions provider.From May 2007 to June 2010, Ms. McKenna served as Senior Vice President and Chief Information Officer of Universal Orlando Resort.Ms. McKenna has served on the board of directors of Isleworth Healthcare Acquisition Corp., a blank check company, since February 2021, and previously served on the board of directors of Quotient, a marketing technology company from November 2017 to July 2021, Comscore, a measurement and analytics company, from October 2017 to March 2019 and Insperity, Inc., a professional employer organization, from April 2015 to August 2017.Ms. McKenna is a certified public accountant and holds a B.S. in Accounting from Auburn and an M.B.A. in from the Crummer Graduate School of Business at Rollins College in Winter Park Florida.
Our board of directors believes that Ms. McKenna possesses specific attributes that qualify her to serve as a director, including more than 20 years of global technology management and senior leadership, including substantial experience in technology strategy, and her professional experience in the areas of accounting and audit oversight.
Robert Theis has served on our board of directors since August 2011. Mr. Theis has served as a General Partner of World Innovation Lab, a venture capital firm, since September 2016. He was a Co-Founder and served as Managing Partner of Garnett Theis Capital, a venture capital firm, from October 2014 to September 2016. He served as a managing director at Scale Venture Partners, a venture capital firm, from May 2008 to October 2014. Prior to joining Scale Ventures, from July 2000 to April 2008, Mr. Theis served as a general partner with Doll Capital Management, a venture capital firm. From July 1996 to June 2000, Mr. Theis served as executive vice president and served on the board of directors of New Era of Networks, Inc., a supplier of Internet infrastructure software and services. From April 1986 to June 1996, Mr. Theis served as a Managing Director at Sun Microsystems, Inc., a provider of computers and computer components acquired by Oracle Corporation, and from January 1984 to March 1986, as Marketing Manager at Silicon Graphics, Inc., a provider of high-performance computing solutions. Mr. Theis has also served on the board of directors Avaya Holdings Corp., a business communication and cloud solutions company, since November 2020. Mr. Theis also serves on the board of directors at BirdEye, Inc., a provider of software for business reputation and customer experience. Mr. Theis holds a B.A. in Economics from the University of Pittsburgh, Pennsylvania.
Our board of directors believes that Mr. Theis possesses specific attributes that qualify him to serve as a director, including his substantial experience as a venture capitalist investment professional and as a director of technology infrastructure and applications companies.
Allan Thygesen has served on our board of directors since October 2015. Mr. Thygesen has served since February 2017 as President, Americas at Google Inc. (a subsidiary of Alphabet Inc.) and from September 2011 to February 2017 as Vice President, Global SMB Sales and Operations. He is also a lecturer at the Stanford Graduate School of Business. Before joining Google, Mr. Thygesen consulted to Google and other companies in 2010 and until September 2011 and previously co-founded an early stage venture firm and was a managing director and partner in the U.S. venture and growth funds of The Carlyle Group, where he led investments in startups in sectors including e-commerce, mobile advertising and imaging. Earlier, Mr. Thygesen served as an information service,executive in several public and private companies, including Wink Communications, Inc., an interactive television technology company, which he helped take public in 1999. Mr. Thygesen has also served on the boards of directors of various private companies. Mr. Thygesen holds an M.Sc. in Economics from the University of Copenhagen and an M.B.A. from Stanford University.
Our board of directors believes that Mr. Thygesen possesses specific attributes that qualify him to serve as a director, including his professional experience in the areas of advertising, scaling operations and market strategies.
Neil Williams has served on our board of directors since March 2012. From January 2008 to February 2018, Mr. Williams served as Executive Vice President and Chief Financial Officer at Intuit Inc., a business and financial software company. Prior to joining Intuit, from April 2001 to September 2007, Mr. Williams served as Executive Vice President of Visa U.S.A., Inc., a credit and debit card payment network, and from November 2004 to September 2007, he served as Chief Financial Officer. During the same period, Mr. Williams held the dual role of Chief Financial Officer for Inovant LLC, Visa’s global IT organization. Mr. Williams has served on the board of directors of Oportun Financial Corporation, a financial services provider, since November 2017 and previously served on the board of directors and as chair of the audit committee of Amyris, Inc., an integrated renewable products company, from May 2013 to March 2020. Mr. Williams holds a B.A. in Business Administration from the University of Southern Mississippi and is a certified public accountant.
Our board of directors believes that Mr. Williams possesses specific attributes that qualify him to serve as a director, including his professional experience in the areas of finance, accounting and audit oversight.
Executive Officers
The following table sets forth the names, ages and positions of our executive officers as of March 31, 2022:
| | | | | | | | | | | | | | |
| Name | | Age | | Position |
| Vladimir Shmunis | | 61 | | Chief Executive Officer and Chairman |
| Mo Katibeh | | 43 | | Chief Operating Officer |
| Vaibhav Agarwal | | 46 | | Chief Accounting Officer and Interim Chief Financial Officer |
| John Marlow | | 53 | | Chief Administrative Officer, Senior Vice President, Corporate Development, General Counsel and Secretary |
Vladimir Shmunis, Chief Executive Officer and Chairman. For a biography of Mr. Shmunis please see the above section entitled “Composition of the Board of Directors.”
Mo Katibeh has served as our Chief Operating Officer since January 2022. Over the past twenty years, Mr. Katibeh has served in multiple leadership roles at AT&T, a multinational telecommunications company. Most recently, he served as Head of AT&T Network Infrastructure & Build from April 2021 to January 2022; Executive Vice President Chief Product & Platform Officer from July 2020 to April 2021; Executive Vice President Chief Marketing Officer from August 2017 to July 2020; Senior Vice President – Advanced Solutions from May 2016 to July 2017; and Vice President – Global Technology Planning from March 2014 to May 2016. Mr. Katibeh holds a B.S. in Business with Majors in International Business Marketing and Philosophy from Oklahoma State University and an Executive M.B.A. from The University of Texas at Dallas – School of Management.
Vaibhav Agarwal has served as our Chief Accounting Officer since April 2019 and interim Chief Financial Officer since January 2022. He previously served as our Vice President, Corporate Controller from July 2016 to March 2019. Prior to joining us, Mr. Agarwal served as Assistant Corporate Controller of the Programmable Solutions Division of Intel Corporation (formerly Altera Corporation), a semiconductor company, from December 2014 to July 2016. From November 2011 to November 2014, Mr. Agarwal was at Intuitive Surgical Inc., a medical device company, where he last served as the Director, Corporate Accounting. Prior to that, Mr. Agarwal was at the public accounting firm PricewaterhouseCoopers from March 2005 to March 2011 and last served as Senior Manager in its Assurance practice. Mr. Agarwal is a Chartered Accountant from India and a Certified Public Accountant (Inactive) in California.
John Marlow has served as our Chief Administrative Officer since February 2017, as our Senior Vice President, Corporate Development since June 2013 and as our General Counsel and Secretary since April 2009, and also served as our Managing Director—EMEA from January 2015 to June 2016. He was appointed as Vice President of Corporate Development in November 2008. Mr. Marlow also served on our board of directors from August 2005 until August 2011. In addition, Mr. Marlow serves as the Director of Business and Legal Affairs at BrainSonix Corporation, a private medical device company, as well as a director and secretary of the Synaptec Companies, private neurological-related companies. Mr. Marlow holds a B.A. in Sociology from Colgate University and a J.D. from the University of California, Berkeley, Boalt Hall School of Law.
Director Independence
Under the rules of the NYSE, independent directors must comprise a majority of a listed company’s board of directors within a specified period of the completion of its initial public offering. In addition, the rules of the NYSE require that, subject to certain provisionsspecified exceptions, each member of Title Ia listed company’s audit, compensation and nominating and corporate governance committees be independent. Under the rules of the Communications Act. AmongNYSE, a director is independent only if our board of directors makes an affirmative determination that the director has no material relationship with us.
Our board of directors undertook a review of its composition, the composition of its committees and the independence of each director. The determination of our board of directors was based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships. In making this determination, our board of directors considered the relationships that each non-employee director has with us and all other things,facts and circumstances our board of directors deemed relevant in determining their independence, including the order eliminates rules adoptedbeneficial ownership of our capital stock by each non-employee director.
With respect to Mr. Thygesen, our board of directors specifically considered that Mr. Thygesen is President, Americas at Google Inc. (though he is not an executive officer at Google Inc. or its parent company, Alphabet Inc.) and the terms and value of the search engine optimization/search engine marketing agreement we have with Google Inc. as well as the suite of Google apps and services that we license from Google Inc. Our board of directors has concluded that our relationship with Google Inc. would not impede the exercise of independent judgment by Mr. Thygesen.
With respect to Mr. Theis, our board of directors specifically considered Mr. Theis’s role as a director of Avaya Holdings Corp. (“Avaya”), including the Company’s compensation of Mr. Theis of $120,000 in 2015cash for such board service, and the terms of our strategic partnership with Avaya. Our board of directors has concluded that prohibited broadband providers from blocking, impairing, or degrading access to legal content, applications, services, or non-harmful devices, or engagingour relationship with Avaya would not impede the exercise of independent judgment by Mr. Theis.
Our board of directors has determined that all of the members of our board of directors, except our CEO, Mr. Shmunis, are “independent” as defined in the practice of paid prioritization, e.g., the favoring of some lawful Internet traffic over other traffic in exchange for higher payments. The order was contested in federal court, was largely affirmed by a three-judge panel,applicable NYSE rules and certain parties have requested rehearing by the full court. A number of states have enacted or are considering legislation or executive actions that would regulate the conduct of broadband providers. We cannot predict whether the FCC order or state initiatives will be modified, overturned, or vacated by legal actionapplicable rules and regulations of the court, federal or state legislation, orSEC.
Leadership Structure
Mr. Shmunis currently serves as both Chairman of our board of directors and CEO. Our board of directors believes that the FCC. Undercurrent board leadership structure, coupled with a strong emphasis on board independence, provides effective independent oversight of management while allowing the new FCC rules, broadband Internet access providers may be ableboard and management to charge web-based services suchbenefit from Mr. Shmunis’s leadership, Company specific experience and years of experience as ours for priority accessan executive in the technology industry. Serving on our board of directors and as CEO since our founding in 1999, Mr. Shmunis is best positioned to customers, which could resultidentify strategic priorities, lead critical discussion and execute our strategy and business plans. Mr. Shmunis possesses detailed in-depth knowledge of the issues, opportunities and challenges facing us. Independent directors and management sometimes have different perspectives and roles in increased costsstrategy development. Our independent directors bring experience, oversight and a lossexpertise from outside of existing users, impairour Company, while the CEO brings Company specific experience and expertise. The board of directors believes that Mr. Shmunis’s combined role enables strong leadership, creates clear accountability and enhances our ability to attract new users,communicate our message and materiallystrategy clearly and adversely affectconsistently to stockholders.
Lead Independent Director
Our corporate governance guidelines provide that one of our businessindependent directors should serve as a lead independent director at any time when the Chairman is not independent. Because our CEO, Mr. Shmunis, is our Chairman, our board of directors appointed Mr. Theis to serve as our lead independent director. Our lead independent director presided over periodic meetings of our independent directors, served as a liaison between our Chairman and opportunitiesthe independent directors and performed such additional duties as our board of directors otherwise determined and delegated.
Board Committees
Our board of directors has established an audit committee, a compensation committee and a nominating and corporate governance committee. Our board of directors may establish other committees from time to time. The charters for growth.each of our committees are available on our website at ir.ringcentral.com.
InterruptionsAudit Committee
Our audit committee oversees our accounting and financial reporting process and the audit of our financial statements and assists our board of directors in monitoring our financial systems and our legal and regulatory compliance. Our audit committee is responsible for, among other things:
•appointing, approving the compensation of, supervising, evaluating and assessing the independence of our independent registered public accounting firm;
•pre-approving auditing and permissible non-audit services, and the terms of such services, to be provided by our independent registered public accounting firm;
•reviewing annually a report by the independent registered public accounting firm regarding the independent registered public accounting firm’s internal quality control procedures and various issues relating thereto;
•reviewing and discussing with management and the independent registered public accounting firm our annual and quarterly financial statements and related disclosures;
•coordinating the oversight and reviewing the adequacy of our internal control over financial reporting with both management and the independent registered public accounting firm;
•establishing policies and procedures for the receipt and retention of accounting related complaints and concerns, including a confidential, anonymous mechanism for the submission of concerns by employees;
•periodically reviewing legal compliance matters, including securities trading policies, periodically reviewing significant accounting and other financial risks or exposures to our Company and reviewing and, if appropriate, approving all transactions between our Company or its subsidiaries and any related party (as described in Item 404 of Regulation S-K);
•periodically reviewing our Code of Business Conduct and Ethics;
•establishing policies for the hiring of employees and former employees of the independent registered public accounting firm; and
•reviewing the audit committee report required by SEC rules to be included in our services caused by undetected errors, failures,annual proxy statement.
The audit committee has the power to investigate any matter brought to its attention within the scope of its duties and the authority to retain counsel and advisors to fulfill its responsibilities and duties.
Our audit committee is currently comprised of Kenneth Goldman, Michelle McKenna and Neil Williams, who is the chairperson of the committee. Our board of directors has designated Kenneth Goldman, Michelle McKenna and Neil Williams as “audit committee financial experts,” as defined under the rules of the SEC implementing Section 407 of the Sarbanes Oxley Act of 2002.
Our board of directors has considered the independence and other characteristics of each member of our audit committee and has concluded that the composition of our audit committee meets the requirements for independence under the current requirements of the NYSE and SEC rules and regulations. Audit committee members must satisfy additional independence criteria set forth under Rule 10A-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In order to be considered independent for purposes of the Rule 10A-3, an audit committee member may not, other than in his or bugsher capacity as a member of the audit committee, accept consulting, advisory or other fees from us or be an affiliated person of us. Each of the members of our audit committee qualifies as an independent director pursuant to Rule 10A-3.
No member of our audit committee should simultaneously serve on the audit committee of more than two additional public companies unless our board of directors determines that such simultaneous service would not impair the ability of such member to effectively serve on the audit committee and discloses such determination in our subscriptions could harm our reputation, result in significant costs to us,accordance with the requirements of the NYSE. Our board of directors has considered Mr. Goldman’s simultaneous service on the audit committees of RingCentral and three other public companies and has determined that such simultaneous service does not impair ourhis ability to selleffectively serve as a member of our subscriptions.audit committee.
Compensation Committee
Our subscriptions may have errors or defects that customers identify after they begin using them that could result in unanticipated interruptions of service. Internet-based services frequently contain undetected errorscompensation committee oversees our compensation policies, plans and bugs when first introduced or when new versions or enhancements are released. While the substantial majorityprograms. The compensation committee is responsible for, among other things:
•reviewing and recommending policies, plans and programs relating to compensation and benefits of our customers are smalldirectors, officers and medium-sized businesses, the useemployees;
•annually reviewing and approving corporate goals and objectives relevant to compensation of our subscriptionschief executive officer and other executive officers;
•annually evaluating the performance of our chief executive officer in complicated, large-scale network environmentslight of such corporate goals and objectives and recommending the compensation of our chief executive officer and our other executive officers to the board of directors for its approval;
•administering our equity compensations plans for our employees and directors; and
•reviewing for inclusion in this Form 10-K/A the report of the compensation committee required by the SEC.
The compensation committee also has the power to investigate any matter brought to its attention within the scope of its duties and the authority to retain counsel and advisors to fulfill its responsibilities and duties.
Our compensation committee is currently comprised of Michelle McKenna, Allan Thygesen and Robert Theis, who is the chairperson of the committee. Our board of directors has determined that each member of the compensation committee is an independent director for compensation committee purposes as that term is defined in the applicable rules of the NYSE and is a “non-employee director” within the meaning of Rule 16b-3(d)(3) promulgated under the Exchange Act.
Nominating and Corporate Governance Committee
Our nominating and corporate governance committee, or nominating committee, oversees and assists our board of directors in reviewing and recommending corporate governance policies and nominees for election to our board of directors and its committees. The nominating committee is responsible for, among other things:
•evaluating and making recommendations regarding the organization and governance of our board of directors and its committees and changes to our certificate of incorporation and bylaws and stockholder communications;
•reviewing succession planning for our chief executive officer and other executive officers and evaluating potential successors;
•assessing the performance of board members and making recommendations regarding committee and chair assignments and composition and size of our board of directors and its committees;
•recommending desired qualifications for board and committee membership and conducting searches for potential members of our board of directors;
•evaluating and making recommendations regarding the creation of additional committees or the change in mandate or dissolution of committees;
•reviewing and making recommendations with regard to our corporate governance guidelines and compliance with laws and regulations; and
•reviewing and approving conflicts of interest of our directors and corporate officers, other than related party transactions reviewed by the audit committee.
The nominating committee also has the power to investigate any matter brought to its attention within the scope of its duties. It also has the authority to retain counsel and advisors to fulfill its responsibilities and duties.
Our nominating committee is currently comprised of Michelle McKenna, Robert Theis and Kenneth Goldman, who is the chairperson of the committee. Each of the nominating committee members is an independent director for nominating committee purposes as that term is defined in the applicable rules of the NYSE.
Considerations in Evaluating Director Nominees
The nominating committee uses a variety of methods for identifying and evaluating director nominees. In its evaluation of director candidates, the nominating committee will consider the current size and composition of the board of directors and the needs of the board of directors and the respective committees of the board of directors. Some of the qualifications that the nominating committee considers include, without limitation, issues of character, integrity, judgment, diversity (with respect to diversity, such factors as gender, gender identity, sexual orientation, race, ethnicity, differences in professional background, education, skill and other individual qualities and attributes that contribute to the total mix of viewpoints and experience represented on the board of directors), independence, area of expertise, corporate experience, length of service, potential conflicts of interest and other commitments. The nominating committee requires the following minimum qualifications to be satisfied by any nominee for a position on our board of directors, (1) the highest personal and professional ethics and integrity, (2) proven achievement and competence in the nominee’s field and the ability to exercise sound business judgment, (3) skills that are complementary to those of the existing members of our board of directors, (4) the ability to assist and support management and make significant contributions to the Company’s success, and (5) an understanding of the fiduciary responsibilities that are required of a member of our board of directors, and the commitment of time and energy necessary to diligently carry out those responsibilities. Other than the foregoing, there are no stated minimum criteria for director nominees, although the nominating committee may increase our exposure to undetected errors, failures, or bugs in our subscriptions. Although we test our subscriptions to detect and correct errors and defects before their general release, we have,also consider such other factors as it may deem, from time to time, experienced significant interruptionsare in our subscriptionsand our stockholders’ best interests. The nominating committee may also take such measures that it considers appropriate in connection with its evaluation of a director candidate, including candidate interviews, inquiry of the person or persons making the recommendation or nomination, engagement of an outside search firm to gather additional information, or reliance on the knowledge of the members of the nominating committee, the board of directors or management.
Although the board of directors does not maintain a specific policy with respect to board diversity, the board of directors believes that the board should be a diverse body and is committed to increasing board diversity. Accordingly, the nominating committee considers a broad range of backgrounds, experiences and other factors as it oversees the annual board of
director and committee evaluations. After completing its review and evaluation of director candidates, the nominating committee recommends to the full board of directors the director nominees for selection.
Stockholder Recommendations for Nominations to the Board of Directors
The nominating committee will consider candidates for director recommended by stockholders holding at least one percent (1%) of the fully diluted capitalization of the Company continuously for at least twelve (12) months prior to the date of the submission of the recommendation, so long as such recommendations comply with the certificate of incorporation and bylaws of our Company and applicable laws, rules and regulations, including those promulgated by the SEC. The committee will evaluate such recommendations in accordance with its charter, our bylaws, our policies and procedures for director candidates, as well as the regular nominee criteria described above. This process is designed to ensure that the board of directors includes members with diverse backgrounds, skills and experience, including appropriate financial and other expertise relevant to our business. Eligible stockholders wishing to recommend a resultcandidate for nomination should contact our General Counsel or our Legal Department in writing. Such recommendations must include the information about the candidate, relevant qualifications, a signed letter from the candidate confirming willingness to serve, a statement of support by the recommending stockholder, information regarding any relationships between the candidate and the Company and evidence of the recommending stockholder’s ownership of Company stock. The committee has discretion to decide which individuals to recommend for nomination as directors.
Corporate Governance Guidelines and Code of Business Conduct and Ethics
We have adopted Corporate Governance Guidelines that address items such errors or defectsas the qualifications and may experience future interruptionsresponsibilities of service if we failour directors and director candidates and corporate governance policies and standards applicable to detect and correct these errors and defects. The costs incurredus in correcting such defects or errors may be substantial and could harm our results of operations.general. In addition, we rely on hardware purchased or leasedhave adopted a Code of Business Conduct and software licensed from third partiesEthics that is applicable to offer our subscriptions.
Any defects in, or unavailabilityall of our employees, officers and directors, including our chief executive and senior financial officers. The Corporate Governance Guidelines and Code of Business Conduct and Ethics are available on our website at ir.ringcentral.com. We expect that any amendment to the Code of Business Conduct and Ethics, or third-party software or hardware that cause interruptionsany waivers of its requirements, will be disclosed on our subscriptions could, among other things:website.
cause a reduction in revenues or delay in market acceptance of our subscriptions;
require us to pay penalties or issue credits or refunds to our customers, resellers, or carriers, or expose us to claims for damages;Risk Management
cause us to lose existing customersRisk is inherent with every business, and make it more difficult to attract new customers;
divert our development resources or require us to make extensive changes to our software, which would increase our expenses and slow innovation;
increase our technical support costs; and
harm our reputation and brand.
We rely on third parties, including third parties outside the U.S., for some of our software development, quality assurance, operations, and customer support.
We currently depend on various third parties for some of our software development efforts, quality assurance, operations, and customer support services. Specifically, we outsource some of our software development and design, quality assurance, and operations activities to third-party contractors that have employees and consultants located in St. Petersburg, Russia, Odessa, Ukraine, and Manila, the Philippines. In addition, we outsource a portion of our customer support, inside sales and network operation control functions to third-party contractors located in Manila, the Philippines. Our dependence on third-party contractors createsface a number of risks, including strategic, financial, business and operational, legal and compliance, and reputational. We have designed and implemented processes to manage risk in particular,our operations. Management is responsible for the day-to-day management of risks the Company faces, while our board of directors, as a whole and assisted by its committees, has responsibility for the oversight of risk management. In its risk oversight role, our board of directors has the responsibility to satisfy itself that the risk management processes designed and implemented by management are appropriate and functioning as designed.
Our board of directors believes that we mayopen communication between management and the board of directors is essential for effective risk management and oversight. Our board of directors meets with members of the senior management team at regular board meetings, where, among other topics, they discuss strategy and risks facing the Company.
While our board of directors is ultimately responsible for risk oversight, our board committees assist the board of directors in fulfilling its oversight responsibilities in certain areas of risk. The risk management committee assists our board of directors in fulfilling its responsibilities for overseeing our risk management framework and activities, including the review of major risk areas including compliance, credit, data privacy, financial, legal, market, operational, property, regulatory, reputational, security (including cybersecurity), strategic, technology and any other risk areas deemed appropriate for review, as well as the steps taken to monitor and control those exposures, with particular responsibility for overseeing designated areas of risk that are not maintain service quality, control,the primary responsibility of another committee of our board of directors or effective managementretained by our board of directors for its direct oversight. The audit committee assists our board of directors in fulfilling its oversight responsibilities with respect to these business operations. In addition, recent politicalrisk management in the areas of significant accounting and military eventsother financial risk exposure, and discusses with management and the independent auditor guidelines and policies with respect to risk assessment and risk management. The audit committee also reviews management’s assessment of the key risks facing us, including the key controls it relies on to mitigate those risks. The audit committee also monitors certain key risks at each of its regularly scheduled meetings, such as risk associated with internal control over financial reporting and liquidity risk. The nominating committee assists our board of directors in Ukraine, poor relations betweenfulfilling its oversight responsibilities with respect to the U.S.management of risk associated with board organization, membership and Russia,structure, and sanctionscorporate governance. The compensation committee assesses risks created by the U.S.incentives inherent in our compensation philosophy and practices. Finally, the EU against Russia could have an adverse impactfull board of directors reviews strategic and operational risk in the context of reports from the management team, receives reports on our third-party software developmentall significant committee activities at each regular meeting, and quality assurance operationsevaluates the risks inherent in Ukrainesignificant transactions.
Compensation Committee Interlocks and Russia. Additionally, we rely on purchased or leased hardware and software licensed from third parties in order to offer our subscriptions, and in some cases, we integrate third-party licensed software components into our platform. Any errors or defects in third-party hardware or software could result in errors or a failureInsider Participation
None of the members of our subscriptions which could harm our business.
We anticipate that we will continue to depend on these and other third-party relationships in order to grow our business for the foreseeable future. If we are unsuccessful in maintaining existing and, if needed, establishing new relationships with third parties, our ability to efficiently operate existing servicescompensation committee is an officer or develop new services and provide adequate customer support could be impaired, and, as a result, our competitive position or our results of operations could suffer.
A cyber-attack, information security breach or denial of service event could delay or interrupt service to our customers, harm our reputation, or subject us to significant liability.
Our operations depend on our ability to protect our production and corporate information technology services from interruption or damage from unauthorized entry, computer malware or other events beyond our control. We have, from time to time, been subject to communications fraud and cyber-attacks by malicious actors, and denial of service events, and we may be subject to similar attacks in the future. We cannot assure you that our backup systems, regular data backups, security controls and other procedures currently in place, or that may be in place in the future, will be adequate to prevent significant damage, system failure, service outages, data breach, data loss, or increased charges from our technology vendors. Also, our subscriptions are web-based. The amount of data we store for our users increases as our business grows. We host services, which includes hosting customer data, both in co-located data centers and in multiple public cloud services. Our solutions allow users to store files, tasks, calendar events, messages and other data indefinitely on our services. We also maintain sensitive data related to our technology and business, and thatemployee of our employees, strategic partners, and customers, including intellectual property, proprietary business information and personally identifiable information (also called personal data) on our own systems and in multiple vendors’ cloud services. As a result of maintaining larger volumes of data and user files and/or as a result of our continued movement up market, or movement into new customer segments and acquisition of larger and more recognized customers, we may become more of a target for hackers, nation states and other malicious actors. In addition, we use third-party vendors which, in some cases, have access to our data and our customers’ data. We employ layered security measures and have a means of working with third parties who report vulnerabilities to us. Despite the implementation of security measures by us or our vendors, our computing devices, infrastructure, or networks, or our vendors’ computing devices, infrastructure, or networks, may be vulnerable to hackers, computer viruses, worms, other malicious software programs, or similar disruptive problems that are caused by or through a security weakness or vulnerability in our or our vendors’ infrastructure, network, or business practices or our or our vendors’ customers, employees, business partners, consultants, or other Internet users who attempt to invade our or our vendors’ corporate and personal computers, tablets, mobile devices, software, data networks, or voice networks. If there is a security weakness or vulnerability in our, our vendors’, or our customers’ infrastructure, networks, or business practices that is successfully targeted, we could face increased costs, liability claims, including contractual liability claims relating to security obligations in agreements with our partners and our customers, fines, reduced revenue, or harm to our reputation or competitive position. In addition, even if not targeted, in strengthening our security controls or in remediating security vulnerabilities, we could incur increased costs and capital expenditures.
Further, in some cases we do not have in place disaster recovery facilities for certain ancillary services, such as email delivery of messages. We rely on encryption and authentication technology to ensure secure transmission of and access to confidential information, including customer credit card numbers, debit card numbers, direct debit information, customer communications, and files uploaded by our customers. Advances in computer capabilities, new discoveries in the field of cryptography, discovery of software bugs or vulnerabilities, discovery of hardware bugs or vulnerabilities, social engineering
activities, or other developments may result in a compromise or breach of the technology we use to protect our data and our customer data, or of the data itself.
Additionally, third parties have attempted in the past, and may attempt in the future, to induce domestic and international employees, consultants, or customers into disclosing sensitive information, such as user names, provisioning data, customer proprietary network information (“CPNI”) or other information in order to gain access to our customers’ user accounts or data, or to our data. CPNI includes information such as the phone numbers called by a customer, the frequency, duration, and timing of such calls, and any services purchased by the consumer, such as call waiting, call forwarding, and caller ID, in addition to other information that may appear on a customer’s bill. Third parties may also attempt to induce employees, consultants, or customers into disclosing sensitive information regarding our intellectual property and other confidential business information, our customers, the customer information we hold, or our information technology systems. In addition, the techniques used to obtain unauthorized access, to perform hacking, phishing and social engineering, or to sabotage systems change and evolve frequently and may not be recognized until launched against a target, may be new and previously unknown or little-known, or may not be detected or understood until well after such actions are conducted. We may be unable to anticipate these techniques or to implement adequate preventative measures, and any security breach or other incident may take longer than expected to remediate or otherwise address. Any system failure or security breach that causes interruptions or data loss in our operations or in the computer systems of our customers or leads to the misappropriation of our or our customers’ confidential or personal information could result in significant liability to us, loss of our intellectual property, cause our subscriptions to be perceived as not being secure, cause considerable harm to us and our reputation (including requiring notification to customers, regulators, or the media), and deter current and potential customers from using our subscriptions. Any of these events could have a material adverse effect on our business, results of operations, and financial condition.
It is critical to our business that our information and our employees’, strategic partners’, and customers’ sensitive information remains secure and that our customers perceive that this information is secure. An information security incident could result in unauthorized access to, loss of, or unauthorized disclosure of such information. A cybersecurity breach could expose us to litigation, indemnity obligations, government investigations, contractual liability, and other possible liabilities. Additionally, a cyber-attack or other information security incident, whether actual or perceived, could result in negative publicity, which could harm our reputation and reduce our customers’ confidence in the effectiveness of our solutions, which could materially and adversely affect our business and operating results. A breach of our security systems could also expose us to increased costs, including remediation costs, disruption of operations, or increased cybersecurity protection costs, that may have a material adverse effect on our business. In addition, a cybersecurity breach of our customers’ systems can also result in exposure of their authentication credentials, unauthorized access to their accounts, exposure of their account information and data (including CPNI), and fraudulent calls on their accounts, which can subsequently have similar actual or perceived impacts to us as described above. A cybersecurity breach of our partners’ or vendors’ systems can result in similar actual or perceived impacts.
While we maintain cybersecurity insurance, our insurance may be insufficient to cover all liabilities incurred by privacy or security incidents. We also cannot be certain that our insurance coverage will be adequate for data handling or data security liabilities actually incurred, that insurance will continue to be available to us on economically reasonable terms, or at all, or that an insurer will not deny coverage as to any future claim. The successful assertion of one or more large claims against us that exceed available insurance coverage, or the occurrence of changes in our insurance policies, including premium increases or the imposition of large deductible or co-insurance requirements, could have a material adverse effect on our business, including our financial condition, operating results, and reputation.
Laws, regulations, and enforcement actions relating to security and privacy information continue to evolve. We have incurred and expect to continue to incur significant expenses to prevent security incidents. It is possible that, in order to support changes to applicable laws and to support our expansion of sales into new geographic areas or into new industry segments, we will need to increase or change our cybersecurity systems and expenditures. Further, it is possible that changes to laws and regulations relating to security and privacy may make it more expensive to operate in certain jurisdictions and may increase the risk of our non-compliance with such changing laws and regulations.
Potential problems with our information systems could interfere with our business and operations.
We rely on our information systems and those of third parties for processing customer orders, distribution of our subscriptions, billing our customers, processing credit card transactions, customer relationship management, supporting financial planning and analysis, accounting functions and financial statement preparation, and otherwise running our business. Information systems may experience interruptions, including interruptions of related services from third-party providers, which may be beyond our control. Such business interruptions could cause us to fail to meet customer requirements. All information systems, both internal and external, are potentially vulnerable to damage or interruption from a variety of sources, including without limitation, computer viruses, security breaches, energy blackouts, natural disasters, terrorism, war, telecommunication failures, employee or
other theft, and third-party provider failures. In addition, since telecommunications billing is inherently complex and requires highly sophisticated information systems to administer, our internally developed billing system, which is currently being implemented, may experience errors or we may improperly operate the system, which could result in the system incorrectly calculating the fees owed by our customers for our subscriptions or related taxes and administrative fees. Any such errors in our customer billing could harm our reputation and cause us to violate truth in billing laws and regulations. Our current internally developed billing system requires us to process an increasing number of invoices manually, which could result in billing errors. Any errors or disruption in our information systems and those of the third parties upon which we rely could have a significant impact on our business. In addition, we may implement further and enhanced information systems in the future to meet the demands resulting from our growth and to provide additional capabilities and functionality. The implementation of new systems and enhancements is frequently disruptive to the underlying business of an enterprise, and can be time-consuming and expensive, increase management responsibilities, and divert management attention.
We depend largely on the continued services of our senior management and other highly-skilled employees, and if we are unable to hire, retain, manage and motivate our employees, we may not be able to grow effectively and our business, results of operations and financial condition could be adversely affected.
Our future performance depends on the continued services and contributions of our senior management and other key employees to execute on our business plan, and to identify and pursue opportunities and services innovations. The loss of services of senior management or other key employees could significantly delay or prevent the achievement of our development and strategic objectives. In particular, we depend to a considerable degree on the vision, skills, experience, and effort of our co-founder, Chairman and Chief Executive Officer, Vladimir Shmunis.Company. None of our executive officers currently serves, or in the past year has served, as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving on our board of directors or compensation committee.
Non-Employee Director Compensation
Our board of directors has approved a compensation program for non-employee directors to attract, retain and reward its qualified directors and align the financial interests of the non-employee directors with those of our stockholders.
The compensation committee has the primary responsibility for reviewing and approving the compensation paid to non-employee directors. The compensation committee reviews at least annually the type and form of compensation paid to our non-employee directors, which includes a market assessment and analysis by our independent compensation consulting firm, Compensia, Inc. (“Compensia”) regarding practices at comparable companies. As part of this analysis, Compensia reviews non-employee director compensation trends and data from companies comprising the same executive compensation peer group used by the compensation committee in connection with its review of executive compensation. Based on this review, the compensation committee has made adjustments to the non-employee director compensation program, most recently in July 2021, in an effort to provide competitive compensation opportunities for our non-employee directors.
Pursuant to this compensation program, each non-employee director receives cash and equity compensation for board services as described below. In addition, we reimburse our non-employee directors for expenses incurred in connection with attending board and committee meetings as well as continuing director education.
Cash Compensation
Our non-employee directors are entitled to receive the following cash compensation for their services:
•$50,000 per year for service as a board member;
•$30,000 per year for service as lead director;
•$30,000 per year for service as chair of the audit committee;
•$20,000 per year for service as chair of the compensation committee;
•$15,000 per year for service as chair of the nominating committee;
•$12,500 per year for service as member of the audit committee;
•$10,000 per year for service as member of the compensation committee; and
•$5,000 per year for service as member of the nominating committee.
All cash payments to non-employee directors are paid quarterly in arrears.
Equity Compensation
Our non-employee directors are entitled to receive the following equity compensation:
On the first trading day on or after June 1 of each year, each non-employee director will be granted an award of restricted stock units (“RSUs”) having an award value (as determined based on the fair value of the award on the date of grant) of $300,000, which award will vest in full on the date that is the earlier of: (i) the next annual meeting of stockholders and (ii) the one year from the date of grant, subject to the non-employee director continuing to be a service provider through such vesting date.
In addition, each person who becomes a non-employee director will receive an award of RSUs having an award value (as determined based on the fair value of the award on the date of grant) equal to (i) $300,000 multiplied by (ii) a fraction, the numerator of which is the number of months between the date the non-employee director becomes a member of the board and
the first trading day on or after June 1 following such date and the denominator of which is 12. The date of grant for this award will be the date the non-employee director joins the board, or, if such date occurs during a Company blackout period, the fifth trading day following the expiration of such Company blackout period and any special blackout period in effect, subject to the director remaining on the board through the grant date. This grant will vest in full on the date that is one year from the date of grant, subject to the non-employee director continuing to be a service provider through such vesting date.
In the event of a change in control, 100% of the non-employee director’s outstanding and unvested equity awards will immediately vest and, if applicable, become exercisable. In no event will an award granted under the policy be greater than the non-employee director limits set forth in our 2013 Equity Incentive Plan (the “2013 Plan”).
The following table shows, for the fiscal year ended December 31, 2021, certain information with respect to the compensation of all of our non-employee directors.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Name | | Fees Earned
or Paid in Cash ($)(1) | | Stock Awards ($)(2) | | All Other Compensation ($)(3) | | Total ($) |
| Mignon Clyburn (4) | | 46,250 | | 259,831 | | | | 306,081 |
| Arne Duncan (5) | | 40,491 | | 324,463 | | | | 364,954 |
| Kenneth Goldman (6) | | 110,000 | | 259,831 | | | | 369,831 |
| Michelle McKenna (7) | | 113,750 | | 259,831 | | | | 373,581 |
| Godfrey Sullivan * | | 22,500 | | 259,831 | | | | 282,331 |
| Robert Theis (8) | | 101,008 | | 259,831 | | 50,323 | | 411,162 |
| Allen Thygesen (9) | | 56,250 | | 259,831 | | | | 316,081 |
| Neil Williams (10) | | 127,500 | | 259,831 | | | | 387,331 |
* Ceased serving as a director in June 2021.
(1)In addition to the cash compensation received under our non-employee director compensation program, amounts in this column include cash compensation earned by Mr. Goldman, Ms. McKenna and Mr. Williams for service on a special committee of our board of directors.
(2)The amounts listed in the “Stock Awards” column represent the aggregate fair market value of RSUs granted in the fiscal year ended December 31, 2021 and calculated in accordance with FASB ASC Topic 718 (“ASC Topic 718”). See Note 10 to the Notes to our Consolidated Financial Statements for a discussion of assumptions made in determining the grant date fair market value, included as Item 8 to our Original Report.
(3)In connection with our strategic partnership with Avaya, we are entitled to nominate one person to Avaya’s board of directors. Mr. Theis currently serves on Avaya’s board of directors as our nominee and we pay him $120,000 per year in cash for such board service. The amount listed in this column represents the pro-rated amount for such service in 2021.
(4)As of December 31, 2021, Ms. Clyburn held 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the annual meeting of stockholders for 2022 (the “2022 Annual Meeting”) or (b) June 1, 2022, subject to her continued service with us.
(5)As of December 31, 2021, Mr. Duncan held 1,201 RSUs, of which 174 shares of our Class A common stock underlying the RSUs vested on February 25, 2022, while the remaining 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to his continued service with us.
(6)As of December 31, 2021, Mr. Goldman held 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to his continued service with us.
(7)As of December 31, 2021, Ms. McKenna held 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to her continued service with us.
(8)As of December 31, 2021, Mr. Theis held 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to his continued service with us.
(9)As of December 31, 2021, Mr. Thygesen held 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to his continued service with us.
(10)As of December 31, 2021, Mr. Williams held (i) 1,027 RSUs, of which 1,027 shares of our Class A common stock underlying the RSUs vest on the earlier of (a) the date of the 2022 Annual Meeting or (b) June 1, 2022, subject to his continued service with us. 30,000 shares of our Class B common stock subject to Mr. Williams’ options were vested as of December 31, 2021.
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act, requires that our executive officers and directors, and persons who own more than 10% of our common stock, file reports of ownership and changes of ownership with the SEC. Such directors, executive officers and 10% stockholders are required by SEC regulation to furnish us with copies of all Section 16(a) forms they file.
SEC regulations require us to identify anyone who filed a required report late during the most recent year. Based on our review of forms we received, or written representations from reporting persons stating that they were not required to file these forms, we believe that during our fiscal ended December 31, 2021, all Section 16(a) filing requirements were satisfied on a timely basis, except for (i) one late Form 4 filing that was filed on behalf of Mr. Shmunis, our CEO and Chairman, on September 16, 2021, and (ii) one late Form 4 filing that was filed on behalf of Mr. Agarwal, our Chief Accounting Officer and Interim Chief Financial Officer, on August 24, 2021. Such late filings did not result in any liability under Section 16(b) of the Exchange Act.
Item 11. Executive Compensation
Compensation Discussion and Analysis
This Compensation Discussion and Analysis provides an overview of our executive compensation philosophy, the material principles governing executive compensation policies and decisions, and the material elements of compensation awarded to, earned by or paid to our named executive officers. In addition, we explain how and why the independent compensation committee determines the specific compensation elements that made up our 2021 executive compensation program.
Our named executive officers for fiscal 2021 were:
•Vladimir Shmunis, Chief Executive Officer (“CEO”);
•Anand Eswaran, former President and Chief Operating Officer (“COO”);
•Mitesh Dhruv, former Chief Financial Officer (“CFO”);
•John Marlow, Chief Administrative Officer, Senior Vice President, Corporate Development, General Counsel and Secretary (“CAO”); and
•Praful Shah, former Chief Strategy Officer.
The information in this Compensation Discussion and Analysis provides perspective and narrative analysis relating to, and should be read along with, the executive compensation tables.
Mr. Eswaran resigned from his position as President and COO of the Company in December 2021 and served as an advisor until the end of December 2021 to help transition his roles and responsibilities.
Mr. Dhruv resigned from his position as CFO of the Company, effective as of December 31, 2021. Our board of directors appointed Vaibhav Agarwal, the Company’s Chief Accounting Officer, to act as interim CFO effective January 1, 2022. As disclosed on a Form 8-K filed on March 18, 2022, the compensation committee approved an increase in his base salary to $500,00 per year with a target bonus opportunity of 75%, both effective April 1, 2022. Additionally, he received restricted stock unit (“RSU”) grants totaling 70,978 RSUs.
Mr. Shah resigned from his position as the Company’s CSO, effective as of September 14, 2021.
2021 Executive Compensation Highlights
Consistent with our compensation philosophy and objectives, the compensation committee took the following actions with respect to the compensation of our named executive officers for 2021:
•Base Salary—Increased base salary amounts for certain named executive officers to reflect market conditions described in the “Base Salary” section below;
•Non-Equity Incentive Plan Compensation—Approved a bonus plan for our named executive officers that paid out only if we achieved quarterly revenue and Non-GAAP operating margin goals that were set to be aggressive and achievable with strong leadership from our executive team described in the “Annual Incentive Compensation” section below. Quarterly payouts under the plan were made in the form of RSUs that were fully vested upon grant (or for certain of the RSUs granted to Mr. Shmunis, on the first trading day after the grant date) in order to conserve cash resources and further align the interests of our stockholders and our executive officers, described in the “Annual Incentive Compensation” section below;
•Annual Equity Compensation—Granted RSUs as part of our annual compensation in an effort to retain our named executive officers, provide incentives for them to continue to grow our business and enhance the link between their interests and the interests of our stockholders described in the “Equity Compensation” section below; and
•Special Equity Compensation—Granted (i) an equity award of 2,178 RSUs to our CEO in April 2021 (effective in May 2021) in lieu of payment of $695,080 of his base salary for the period April 1, 2021 through March 31, 2022, (ii) a special retention equity award of 56,396 RSUs to Mr. Eswaran, and (iii) an award of 13,995 RSUs to Mr. Shah upon his entering into a non-competition agreement with us in connection with his resignation.
Compensation Philosophy and Objectives
The overall objective of our executive compensation program is to tie executive compensation to the performance of our Company. Our executive compensation is designed with a mix of short-term and long-term components, cash and equity elements and fixed and contingent payments in proportions that we believe provide appropriate incentives to retain and motivate our named executive officers, and other senior executives and management personnel is bound by a written employment agreementteam and any of them may therefore terminate employment with us at any time with no advance notice. The replacement of any of these senior management personnel would likely involve significant time and costs, and such loss could significantly delay or prevent the achievement ofhelp to achieve success in our business objectives. The loss of the services of our senior management or other key employees for any reason could adversely affect our business, financial condition, or results of operations.business.
Our future success also depends, in part, on our ability to continue to attract and retain highly skilled personnel. Our executive compensation program seeks to achieve this objective by ensuring that we can:
•Reward talented executives, who possess the proven experience, knowledge, skills, and leadership criteria;
•Motivate our executive officers by giving them a stake in our growth and prosperity and encouraging the continuance of their services with us; and
•Align the interests of stockholders and named executive officers without creating an incentive for inappropriate risk-taking.
Based on this philosophy, we have designed our executive compensation program to encourage the achievement of strong overall financial results, particularly revenue growth and Non-GAAP operating margin.
Executive Compensation Policies and Practices
We endeavor to maintain compensation policies and practices that are consistent with sound governance standards. We believe that thereit is and will continueimportant to be, intense competition for highly skilled technical and other personnel with experience in our industry in the San Francisco Bay Area, where our headquarters is located, in Denver, Colorado, where our U.S. sales and customer support office and our network operations center is located, and in other locations where we maintain offices. In addition, changes to U.S. immigration policies, particularly to H-1B and other visa programs, and restrictions on travel could restrain the flow of technical and professional talent into the U.S. and may inhibit our ability to hire qualified personnel. We must provide competitive compensation packages and a high-quality work environment in order to hire, retain and motivate key personnel. Our compensation committee evaluates our executive compensation program on an ongoing basis to ensure that it is consistent with our short-term and long-term goals given the nature of the market in which we compete for key personnel. The following policies and practices were in effect during 2021:
•Independent Compensation Committee. Our compensation committee is comprised solely of independent directors who have established effective means for communicating with each other and with stockholders, and implementing their executive compensation ideas, as well as addressing concerns;
•Compensation Consultant. Our compensation committee engaged its own compensation consultant, Compensia, to assist with its 2021 compensation reviews. Compensia performed no other consulting or other services for us;
•Annual Executive Compensation Review. Our compensation committee conducts an annual review and approval of our compensation strategy, including a review of our compensation peer group used for comparative purposes;
•Performance-Based Compensation. Our executive compensation program is designed so that a significant portion of compensation is performance-based, and therefore “at risk,” dependent upon corporate performance, as well as
equity-based to align the interests of our executive officers with our stockholders. The overall performance and contribution of the executive is also considered in determining each individual’s compensation;
•Minimal Perquisites and Special Benefits. The members of our executive team are eligible to participate in broad-based Company-sponsored retirement, health and welfare benefits programs on the same basis as our other full-time, salaried employees. IfAt this time, we do not provide any perquisites or other personal benefits to the members of our executive team;
•No “Golden Parachute” Tax Reimbursements. We do not provide any tax reimbursement payments (including “gross-ups”) on any tax liability that our executive officers might owe as a result of the application of Sections 280G or 4999 of the Internal Revenue Code (the “Code”);
•No Hedging and Pledging. Our Insider Trading Policy prohibits our employees, including our executive officers and the members of our board of directors, from hedging any Company securities and from pledging any Company securities as collateral for a loan;
•No “Single-Trigger” Change-in-Control Arrangements; “Double-Trigger” Change-in-Control Arrangements. There are no payments and benefits that are payable solely as a result of a change-in-control in the Company. All change-in-control payments and benefits are based on a “double-trigger” arrangement (that is, they require both a change-in-control of our Company plus an involuntary termination of employment before payments and benefits are paid); and
•Stockholder Advisory Votes on Named Executive Officer Compensation. Our stockholders have an opportunity to cast an advisory vote to (i) approve our named executive officers’ compensation and (ii) approve the frequency of the vote to approve the named executive officers’ compensation. Our stockholders have voted in favor of annual advisory votes on the named executive officers’ compensation. At the 2021 annual meeting of stockholders, approximately 70% of the votes cast voted to approve our named executive officers’ compensation. We believe that the results of this vote affirm our stockholders’ support of our approach to executive compensation, and therefore we have not made any significant changes to our executive compensation program. We will consider the results from this year’s and future years’ stockholder advisory votes on named executive officer compensation when making decisions about our executive compensation program. No changes in the overall structure of the programs were made in 2021.
Compensation-Setting Process
Compensation Committee
Each year, our compensation committee conducts a review of our executive compensation program and related policies and practices. At the beginning of each year, the compensation committee assesses the prior year performance and establishes bonus targets and metrics for the current year and annual equity award grants for our named executive officers. In addition, the compensation committee reviews and determines the base salary of our named executive officers. In determining the compensation of the members of our executive team, including our named executive officers, for 2021, our compensation committee reviewed the compensation arrangements, including base salary, target bonus and equity compensation, of our executive officers and considered an analysis of competitive market data presented by the compensation committee’s advisor, Compensia, a national compensation consulting firm that provides executive compensation advisory services, as well as our overall strategic business plan. Market data was used primarily as a reference point for measuring the competitive marketplace, and was one factor among others, used by the compensation committee in determining executive compensation. Other factors the compensation committee considers in making its executive compensation decisions include: input from our CEO, COO, CAO and Chief People Officer (except regarding their own compensation), past individual performance and expected future performance, vesting status and value of existing equity awards, and internal pay equity based on the impact of business and performance.
Role of Management
In carrying out its responsibilities, the compensation committee works with members of our management, including our CEO, COO, CAO and Chief People Officer. Typically, these members of management and our CFO assist the compensation committee in developing the annual bonus plans based on metrics that contain attainable target levels that are achievable through the commitment and leadership of our executive officers. Our CEO provides recommendations on compensation matters for our employees in general and all of his direct reports, including our executive officers. The CEO,
COO, CAO and CFO usually attend compensation committee meetings. No members of management participate in discussions or decisions regarding their own compensation and none of them are present when their own compensation is determined.
Role of Compensation Consultant
Compensia has been engaged by and serves as the compensation committee’s compensation consultant. Compensia reviews the compensation arrangements of the members of our executive team and generally assists the compensation committee in analyzing executive officer and employee compensation, and the compensation of non-employee members of our board of directors. Compensia provides support for the compensation committee by attending meetings of the compensation committee, providing recommendations regarding the composition of our compensation peer group, analyzing compensation data and formulating recommendations for executive and non-employee director compensation. Our compensation committee also works directly with Compensia from time to time to obtain additional information or clarity regarding data provided by Compensia, and also requests specific analyses to assist the compensation committee in the design and structure of our executive and non-employee director compensation programs.
The compensation committee has determined that the work of Compensia does not give rise to any “conflict of interest” in accordance with Item 407(e)(3)(iv) of Regulation S-K and the listing standards of the NYSE.
Competitive Positioning
In setting executive compensation, our compensation committee uses publicly-available data on the compensation policies and practices of comparable publicly-traded companies as a reference to understand the competitive market for executive talent. With respect to decisions regarding the 2021 compensation of the members of our executive team, including the named executive officers, our compensation committee reviewed an analysis prepared by Compensia of competitive market data derived from a group of public software companies within a specific selection criteria, which included, but was not limited to, revenue between approximately $700 million and $20.3 billion for the trailing four quarters available as of December 1, 2020 and 30-day average market capitalizations of between approximately $16.6 billion and $227.5 billion as of December 1, 2020, and the companies in the following compensation peer group (which was approved by our compensation committee in December 2020):
| | | | | | | | |
| Adobe | ServiceNow | Twilio |
| DocuSign | Shopify | Veeva Systems |
| Okta | Slack Technologies | Workday |
| Paycom Software | Splunk | Zoom Video Communications |
| Salesforce | | |
In selecting the companies that comprised the compensation peer group, the compensation committee focused primarily on public companies in the same or similar country or countries of operation, industry group and financial comparability, which include revenue and market capitalization. The companies that comprise the peer group are our competitors in the labor and capital markets and have similar growth and performance potential.
This competitive market data was used as a reference in the course of our compensation committee’s review and evaluation of our executive compensation program and decisions regarding executive compensation in 2021. The competitive market data is useful to understand market practice and to provide a general context for its decisions. The compensation committee determines the nature and the extent of the use of market data, which varies by executive. Actual compensation is based on individual performance, experience, responsibilities and other criteria selected by our compensation committee. While the compensation committee does not target any component of our executive compensation program to a particular level versus the competitive market, our compensation committee generally refers to a range of the 50th to the 75th market percentile when making its executive compensation decisions. The competitive market data was not used to benchmark the compensation for our named executive officers.
Compensation Overview
Our executive compensation program for 2021 consisted of the following principal compensation elements:
•Base salary (a portion of which was paid in the form of fully vested RSUs for certain named executive officers);
•Annual incentive compensation paid if earned in the form of RSUs each quarter; and
•Long-term incentive compensation in the form of annual grants of time-based RSUs and a special equity award to our CEO in lieu of amounts that would have otherwise been paid as base salary.
We are committed to providing appropriate cash and equity incentives to compensate our named executive officers in a manner that our compensation committee determines is reasonable and appropriate to motivate and retain key talent.
Base Salary
Base salary is a customary, fixed element of compensation intended to attract and retain our named executive officers and compensate them for their day-to-day efforts. Our board of directors and/or the compensation committee reviews base salary every year, as well as at the time of a promotion or other change in responsibilities, and considers each executive officer’s performance, prior base salary level, the competitive market data, breadth of role, and the other factors described in the “Compensation Setting Process—Compensation Committee” section above. Our board of directors and the compensation committee do not target base pay at any particular level versus the competitive market data. In 2021, Messrs. Shmunis, Eswaran, and Dhruv received adjustments to base salary to (i) reflect changes to the competitive market and (ii) retain our named executive officers to grow and expand our business. The base salary changes were effective on April 1, 2021 for all named executive officers.
In June 2021, our compensation committee approved the 2021 NEO Equity Compensation Program (the “Equity Compensation Program”), which provided each then-named executive officer (other than Mr. Shmunis) the opportunity to receive all but $32,500 of his base salary for the period from June 16, 2021, through December 31, 2021, in the form of awards of fully vested RSUs to be granted under the 2013 Plan on the first trading day on or after June 15, August 15, and November 15 of 2021. The number of RSUs a participating named executive officer received on each grant date equaled the portion of his salary for the applicable period (as noted below) that was to be paid in RSUs divided by the closing price of a share of our Class A common stock on the grant date. Messrs. Eswaran, Dhruv, and Marlow elected to participate in the Equity Compensation Program. In November 2021, the compensation committee approved a similar plan providing each then-named executive officer (other than Mr. Shmunis) the opportunity to receive all but $60,000 of his base salary for 2022 in the form of awards of fully vested RSUs. Each year the compensation committee will assess whether to continue the Equity Compensation Program.
The following table sets forth the 2021 base salary for each of our named executive officers.
| | | | | | | | | | | | | | | | | | | | |
| Name | | 2021 Base Salary | | 2020 Base Salary | | Percent
Increase |
| Vladimir Shmunis | | $ 700,000 (1) | | $ 650,000 (1) | | 8% |
| Anand Eswaran | | $ 625,000 (2) | | $ 600,000 (2) | | 4% |
| Mitesh Dhruv | | $ 550,000 (3) | | $ 500,000 (3) | | 10% |
| John Marlow | | $ 375,000 (4) | | $ 375,000 (4) | | 0% |
| Praful Shah | | $ 385,000 | | $ 385,000 | | 0% |
(1)Mr. Shmunis received (i) an award of 3,340 RSUs in lieu of payment in cash of $645,200 of his salary for the period from April 1, 2020 through March 31, 2021, and (ii) an award of 2,178 RSUs in lieu of payment in cash of $695,080 of his salary for the period from April 1, 2021 through March 31, 2022.
(2)Under the Equity Compensation Program, Mr. Eswaran received (i) an award of 353 RSUs in lieu of payment in cash of $94,167 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 578 RSUs in lieu of payment in cash of $141,250 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 267 RSUs in lieu of payment in cash of $70,625 of his salary for the period from November 16, 2021 through December 31, 2021.
(3)Under the Equity Compensation Program, Mr. Dhruv received (i) an award of 306 RSUs in lieu of payment in cash of $81,667 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 501 RSUs in lieu of payment in cash of $122,500 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 232 RSUs in lieu of payment in cash of $61,250 of his salary for the period from November 16, 2021 through December 31, 2021.
(4)Under the Equity Compensation Program, Mr. Marlow received (i) an award of 197 RSUs in lieu of payment in cash of $52,500 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 322 RSUs in lieu of payment in cash of $78,750 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 149 RSUs in lieu of payment in cash of $39,375 of his salary for the period from November 16, 2021 through December 31, 2021.
The actual base salaries paid to our named executive officers during 2021 are set forth in the Summary Compensation Table below. As described above and in the footnotes to the Summary Compensation Table, portions of the salaries for Messrs.
Shmunis, Eswaran, Dhruv, and Marlow were paid in the form of RSUs that are listed in the 2021 Grants of Plan-Based Awards Table below.
Annual Incentive Compensation
The compensation committee establishes annual incentive compensation opportunities under our bonus plan (the “Bonus Plan”). Consistent with our historical practices, bonuses for 2021 under the Bonus Plan were designed to motivate and reward our named executive officers, to perform to the best of their abilities and to achieve our objectives.
Target Annual Incentive Opportunities
In April 2021, the compensation committee reviewed the target annual incentive opportunities of our named executive officers, taking into consideration each named executive officer’s total annual compensation opportunity, the competitive market data with an emphasis generally on the 50th through 75th percentile of total target cash compensation opportunities, breadth of responsibilities and the other factors described in the “Compensation Setting Process—Compensation Committee” section above. The compensation committee increased the target annual incentive opportunity for Messrs. Marlow and Shah to a level that, when considered together with his base salary, the compensation committee believed provided the appropriate incentive and retention effect.
The target annual incentive opportunities of our named executive officers for 2021 were:
| | | | | | | | | | | | | | |
| Name | | 2021 Target Bonus Opportunity (as a % of 2021 Base Salary) | | 2021 Target Bonus Opportunity |
| Vladimir Shmunis | | 100 | % | | $ | 700,000 | |
| Anand Eswaran | | 100 | % | | $ | 625,000 | |
| Mitesh Dhruv | | 100 | % | | $ | 550,000 | |
| John Marlow | | 100 | % | | $ | 375,000 | |
| Praful Shah | | 100 | % | | $ | 385,000 | |
2021Bonus Plan Design and Achievement
For 2021, there are four quarterly performance periods, ending on March 31, June 30, September 30, and December 31. The bonus pool under the Bonus Plan funds based on our achievement against the quarterly target levels established by the compensation committee of the following performance metrics (weighted 50% each): (i) revenues and (ii) Non-GAAP operating margin. These metrics have the following meanings under the Bonus Plan:
•“revenues” means the Company’s net revenues generated from third parties, including both services revenues and other revenues, each as defined in our Form 10-K filed for the calendar year ended December 31, 2021. Net revenue is defined as gross sales less any pertinent discounts, refunds, or other contra-revenue amounts, as presented on the Company’s press release reporting the applicable quarterly financial results.
•“Non-GAAP operating margin” means the Company’s Non-GAAP income from operations divided by its “revenues.” Non-GAAP income from operations means the Company’s “revenues” less cost of revenues and operating expenses, excluding share-based compensation expense, amortization of acquisition related intangibles, legal settlement related charges and as adjusted for certain acquisitions, as presented on the Company’s press release reporting the applicable quarterly financial results.
With respect to revenues, for 100% of the bonus pool for any particular quarter to fund, 100% to 101% of the quarterly revenues target established by the compensation committee was to be achieved. For each 0.1% of revenues that was achieved above the 101% of the quarterly revenues target established by the compensation committee, the bonus pool with respect to revenue would be increased by 1%, and for each 0.1% of revenue that was achieved below 100% of the quarterly revenues target established by the compensation committee, the bonus pool with respect to revenues would be reduced by 1%.
With respect to Non-GAAP operating margin, for 100% of the bonus pool for any particular quarter to fund, the quarterly Non-GAAP operating margin must be within 0.4 points of the 100% of the quarterly Non-GAAP operating margin target established by the compensation committee (this 0.8-point range, the “quarterly Non-GAAP operating margin target range”). For each 0.1% of the Non-GAAP operating margin that was achieved above the quarterly Non-GAAP operating
margin target range, the bonus pool with respect to Non-GAAP operating margin would be increased by 1% (up to a maximum of 120%), and for each 0.1% of Non-GAAP operating margin that was below the quarterly Non-GAAP operating margin target range, the bonus pool with respect to Non-GAAP operating margin would be reduced by 1%.
For the bonus pool under the Bonus Plan to fund for any particular quarter, we had to achieve (i) quarterly revenues at least equal to revenues expected by analyst consensus estimates after we publicly disclosed our guidance for such quarter, and (ii) quarterly Non-GAAP operating margin at least equal to Non-GAAP operating margin expected by analyst consensus estimates after we publicly disclosed our guidance for such quarter.
The following chart sets forth our 2021 quarterly targets against each metric under the Bonus Plan, actual achievement against those targets, and the corresponding percentage payouts to the named executive officer each quarter:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Revenue | | Non-GAAP Operating Margin |
| Q1 | | Q2 | | Q3 | | Q4 | | Q1 | | Q2 | | Q3 | | Q4 |
| Target (in millions) | $ | 347.6 | | | $ | 367.3 | | | $ | 394.0 | | | $ | 424.1 | | | 8.9 | % | | 9.4 | % | | 9.9 | % | | 11.6 | % |
| Achievement (% of Target) | 101.4 | % | | 103.3 | % | | 105.2 | % | | 105.8 | % | | 103.4 | % | | 108.5 | % | | 106.1 | % | | 91.4 | % |
| Payout (% of Target) | 103.5 | % | | 122.6 | % | | 142.0 | % | | 147.6 | % | | 100.0 | % | | 102.7 | % | | 101.9 | % | | 93.0 | % |
Based upon our actual financial performance as measured against the approved performance metrics and the formula under the Bonus Plan, the payout percentages for each of the four quarters in 2021 were as follows: 101.8% (Q1), 113.3% (Q2), 122.0% (Q3) and 120.3% (Q4).
In December 2020, our compensation committee approved the 2021 Key Employee Equity Bonus Plan (the “Key Employee Bonus Plan”), which provided that the then-named executive officers will receive any quarterly bonus achieved and payable under the Bonus Plan for 2021 in the form of RSUs granted under the 2013 Plan. The number of RSUs each named executive officer received equaled the dollar value of the quarterly bonus divided by the lower of the closing price of a share of our Class A common stock (i) on the first trading day of the quarter for which the quarterly bonus is assessed or (ii) on the first trading day on or after May 15, August 15, November 15 or February 15 (or for the RSUs granted to Mr. Shmunis in payment of his bonuses for the second, third, and fourth quarters of 2021, the first trading day on or before August 19, November 19, or February 19) following the quarter for which the quarterly bonus is assessed. The RSUs issued to our named executive officers were fully vested upon grant. In November 2021, the compensation committee approved a similar plan governing 2022 bonuses. Each year the compensation committee will assess whether to continue the Key Employee Bonus Plan.
The aggregate dollar values of the bonuses earned by our named executive officers under the Bonus Plan for 2021 are listed in the “Non-Equity Incentive Compensation” column of the Summary Compensation Table. As described above and in the footnotes to the Summary Compensation Table, each earned quarterly bonus was paid in the form of RSUs that are listed in the 2021 Grants of Plan-Based Awards Table below.
Equity Compensation
We use RSUs to deliver long-term incentive compensation opportunities to our named executive officers. Consistent with our compensation objectives, we believe this approach helps to ensure that the interests of the members of executive team are aligned with those of our stockholders and that we are unableable to retainattract and motivatereward our existingtop talent. In 2021, the compensation committee determined not to grant stock options to our named executive officers and to grant only RSUs to management in order to better identify the interests of our named executive officers and our stockholders and to reduce our corporate-wide dilution.
The compensation committee does not target equity compensation at any particular level versus the competitive market data, although it uses the range of the 50th percentile to the 75th percentile as a reference point during the course of its deliberations. RSUs serve as a retention tool as they vest based on continued service over time.
Except for the RSUs granted to Mr. Shmunis in lieu of payment of his salary in cash, the RSUs granted to Mr. Eswaran as a special retention award, and the RSUs granted to Mr. Shah under his non-competition agreement (which are discussed below), RSUs generally vest 1/16 every three months and become fully vested after four years, in each case, subject to the executive officer’s continued service as of each vesting date. In addition, each named executive officer is entitled to certain vesting acceleration benefits upon a qualifying termination, as described in the “Executive Employment Arrangements” and “Other Change in Control Provisions” sections below.
In April 2021, our compensation committee approved annual equity awards to the members of our executive team to reward them for our strong corporate performance and their individual performance, with such equity award grants becoming effective in May 2021. In determining the size of these awards, the compensation committee took into consideration each executive officer’s current vested and unvested equity holdings, competitive market data, and the other factors described in the “Compensation Setting Process—Compensation Committee” section above.
The intended values of the annual equity awards to the named executive officers granted in May 2021 are listed below, and the number of shares covered by each of these equity awards is equal to the award’s intended value divided by the average closing price of a share of our common stock during the month of April 2021, rounded up to the nearest whole share.
| | | | | | | | |
| Name | | Intended Value of RSUs |
| Vladimir Shmunis | | $ | 18,000,000 | |
| Anand Eswaran | | $ | 28,000,000 | |
| Mitesh Dhruv | | $ | 28,000,000 | |
| John Marlow | | $ | 12,000,000 | |
| Praful Shah | | $ | 6,000,000 | |
In addition, in April 2021, we granted Mr. Shmunis a special equity award of 2,178 RSUs (effective in May 2021) in lieu of payment in cash of $695,080 of his salary for the period from April 1, 2021 through March 31, 2022, in order to conserve cash resources and to enhance the link between Mr. Shmunis’s interest and those of our stockholders. These RSU awards vest 1/4 every three months and become fully vested after one year, subject to Mr. Shmunis’s continued service as of each vesting date. In addition, Mr. Shmunis is entitled to certain vesting acceleration benefits upon qualifying termination, as described in the “Executive Employment Arrangements” and “Other Change in Control Provisions” sections below.
In April 2021, our compensation committee approved the grant of a special retention equity award of 56,396 RSUs to Mr. Eswaran, effective in May 2021. The number of shares covered by the equity award is equal to the award’s intended value of $18,000,000 divided by the average closing price of a share of our common stock during the month of April 2021, rounded up to the nearest whole share. The RSUs vested 1/8 on May 20, 2021 and 1/8 every three months thereafter. In addition, in 2021, Mr. Eswaran received the following RSU awards under our Equity Compensation Program (i) an award of 353 RSUs in lieu of payment in cash of $94,167 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 578 RSUs in lieu of payment in cash of $141,250 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 267 RSUs in lieu of payment in cash of $70,625 of his salary for the period from November 16, 2021 through December 31, 2021. In connection with his resignation in December 2021, Mr. Eswaran forfeited all of his then-unvested equity awards.
In May 2021, Mr. Dhruv received the following RSU awards under our Equity Compensation Program; (i) an award of 306 RSUs in lieu of payment in cash of $81,667 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 501 RSUs in lieu of payment in cash of $122,500 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 232 RSUs in lieu of payment in cash of $61,250 of his salary for the period from November 16, 2021 through December 31, 2021. In connection with his resignation in December 2021, Mr. Dhruv forfeited all of his then-unvested equity awards.
In May 2021, Mr. Marlow received the following RSU awards under our Equity Compensation Program; (i) an award of 197 RSUs in lieu of payment in cash of $52,500 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 322 RSUs in lieu of payment in cash of $78,750 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 149 RSUs in lieu of payment in cash of $39,375 of his salary for the period from November 16, 2021 through December 31, 2021.
In connection with Mr. Shah’s resignation, in August 2021, our compensation committee approved a grant of 13,995 RSUs to him effective on the date he entered into a non-competition agreement with us (which is described in the “Post‑Employment Compensation” section below). If Mr. Shah complies with the non-competition agreement through the non‑competition period, all shares subject to the equity award will vest on August 20, 2022.
The grant date fair values of these equity awards granted to our named executive officers are listed in the “Stock Awards” column of the Summary Compensation Table and in the 2021 Grants of Plan-Based Awards Table below.
As discussed above, we also issued RSUs to our named executive officers under the Key Employee Bonus Plan in settlement of their annual incentive payments under the Bonus Plan for 2021. These RSUs are listed in the 2021 Grants of Plan-Based Awards Table below.
Welfare and Other Employee Benefits
Our named executive officers are eligible to participate in the same group insurance and employee benefit plans generally available to our other salaried employees in the U.S. These benefits include medical, dental, vision, and disability benefits and other plans and programs made available to other eligible employees. We have a qualified defined contribution plan under Code Section 401(k) covering eligible employees, including our named executive officers. All participants in the plan, including each named executive officer, are eligible to make pre-tax contributions. We provide a Company 401(k) plan matching program of 50% of the employee’s contributions up to the lesser of 6% of employee cash compensation and $4,050 per year. All participant 401(k) contributions and earnings, as well as all matching contributions and earnings, are fully and immediately vested.
Perquisites
We do not view perquisites or other personal benefits as a significant component of our executive compensation program. Accordingly, we generally do not provide special plans or programs for our named executive officers.
All practices with respect to perquisites or other personal benefits will be subject to review and approval by the compensation committee.
Post-Employment Compensation
Vladimir Shmunis and John Marlow
Our employment agreements with Messrs. Shmunis and Marlow provide for certain payments and benefits in the event of a qualifying termination of employment, including a termination of employment in connection with a change in control of the Company. We believe that these agreements will enable our named executive officers to maintain their focus and dedication to their responsibilities to help maximize stockholder value by minimizing distractions due to the possibility of an involuntary termination of employment or a termination of employment in connection with a potential change in control of the Company. We also believe that these arrangements further our interest in encouraging retention among our named executive officers.
In addition, these named executive officers are participants in the Company’s Equity Acceleration Policy which contains provisions providing for double-trigger vesting upon certain changes in control, as described in the “Other Change in Control Provisions” section below. We believe this policy provides important retention incentives for our key contributors through and following a change in control.
Anand Eswaran
We entered into an executive employment offer letter with Mr. Eswaran, our former President and COO, dated December 23, 2019. Under the offer letter, Mr. Eswaran was eligible to receive certain payments and benefits upon certain terminations of his employment with the Company. Mr. Eswaran also was a participant in the Equity Acceleration Policy, which is described in the “Other Change in Control Provisions” section below. Mr. Eswaran did not receive any of the severance benefits under his offer letter or the Equity Acceleration Policy upon his resignation.
Mitesh Dhruv
We entered into an executive employment offer letter with Mr. Dhruv, our former CFO, on March 1, 2012, which was subsequently amended on July 28, 2017. Under the terms of the executive employment offer letter, in the event we terminated Mr. Dhruv’s employment without “cause” or he voluntarily terminated for “good reason” (with such terms defined in the supplement to his offer letter), he would have been eligible to receive (i) a cash severance payment equal to 12 months of his base salary, payable in semi-monthly installments in accordance with our payroll procedures, and (ii) payment by us for up to 12 months of COBRA premiums to continue health insurance coverage for him and his eligible dependents, in each case,
subject to his signing and not revoking a release agreement with us. Mr. Dhruv also was a participant in the Equity Acceleration Policy, which is described in the “Other Change in Control Provisions” section below.
Mr. Dhruv did not receive any of the severance benefits under his offer letter or the Equity Acceleration Policy upon his resignation.
Praful Shah
We entered into an executive employment offer letter with Mr. Shah, our former CSO, dated March 31, 2008. Under the offer letter, Mr. Shah was eligible to receive certain payments and benefits upon certain terminations of his employment with the Company. Mr. Shah also was a participant in the Equity Acceleration Policy, which is described in the “Other Change in Control Provisions” section below. Mr. Shah did not receive any of the severance benefits under his offer letter or the Equity Acceleration Policy upon his resignation.
In connection with his resignation, on September 2, 2021, Mr. Shah entered into a non-competition agreement effective as of the date his resignation became effective. Under the non-competition agreement, Mr. Shah has agreed to not, without the prior written consent of the Company, engage in certain competitive business activities towards the Company or solicit certain other individuals to participate in such activities from the period commencing on the effective date of his resignation until August 20, 2022. Mr. Shah received an award of 13,995 RSUs upon his entering into the non-competition agreement, as described above. On the effective date of his resignation, Mr. Shah forfeited all of his other then-unvested equity awards.
Executive Employment Arrangements
The initial terms and conditions of employment for each of our executive officers (including our named executive officers that remain with us) are set forth in a written employment agreement. Each of these agreements was approved on our behalf by our board of directors or the compensation committee, as applicable.
We develop competitive compensation packages to attract qualified candidates in a highly-competitive labor market. We believe that these arrangements will help the named executive officers maintain continued focus and dedication to their responsibilities to help maximize stockholder value if there is a potential transaction that could involve a change in control of our Company.
Vladimir Shmunis
We entered into an executive employment letter with Mr. Shmunis, our CEO, dated September 13, 2013. In 2021, Mr. Shmunis’s annual base salary was $700,000, and he was eligible to earn an annual incentive bonus of up to 100% of his base salary. The executive employment letter with Mr. Shmunis provides for a three-year employment term and may be extended by mutual agreement at the end of the term, but either we or Mr. Shmunis may terminate the employment relationship with us at any time.
If prior to the period beginning three months prior to and ending 12 months after a change of control of the Company (such period, the “Change of Control Period”), Mr. Shmunis’s employment is terminated without “cause” (excluding by reason of death or “disability”) or he resigns for “good reason” (as such terms are defined in the executive employment letter), he will be eligible to receive the following payments and benefits if he timely signs and does not revoke a release agreement with us:
•continued payment of base salary for a period of 12 months; and
•payment by us for up to 12 months of COBRA premiums to continue health insurance coverage for him and his eligible dependents, or taxable monthly payments for the equivalent period in the event payment for COBRA premiums would violate applicable law.
If, within the Change of Control Period, his employment is terminated without cause (excluding by reason of death or “disability”) or he resigns for good reason, he will be entitled to the following payments and benefits if he timely signs and does not revoke a release agreement with us:
•a lump sum payment equal to (i) 18 months of his annual base salary, plus (ii) 1.5x the greater of his target annual bonus for the year of the change of control or the year of his termination;
•payment by us for up to 18 months of COBRA premiums to continue health insurance coverage for him and his eligible dependents, or taxable monthly payments for the equivalent period in the event payment for COBRA premiums would violate applicable law; and
•100% accelerated vesting of all outstanding equity awards.
In the event any of the amounts provided for under the executive employment letter or otherwise payable to Mr. Shmunis would constitute “parachute payments” within the meaning of Code Section 280G and could be subject to the related excise tax, Mr. Shmunis would be entitled to receive either full payment of benefits under the executive employment letter or such lesser amount which would result in no portion of the benefits being subject to the excise tax, whichever results in the greater amount of after-tax benefits to Mr. Shmunis. The executive employment letter does not require us to provide any tax gross-up payments.
John Marlow
We entered into an executive employment offer letter with John Marlow, our current Chief Administrative Officer, Senior Vice President, Corporate Development, General Counsel and Secretary, dated September 13, 2013. The executive employment offer letter has no specific term and provides for at-will employment. In 2021, Mr. Marlow’s base salary was $375,000, and he was eligible to earn an annual incentive bonus of up to approximately 100% of his base salary.
In the event we terminate Mr. Marlow’s employment without “cause” (as such term is defined in his offer letter) and excluding by reason of death or disability, he is eligible to receive severance equal to three months of his base salary, payable in installments in accordance with our payroll procedures, subject to his signing and not revoking a release agreement with us.
Mr. Marlow is a participant in the Equity Acceleration Policy as described in the “Other Change in Control Provisions” section below.
Other Change in Control Provisions
Messrs. Shmunis and Marlow are eligible(and prior to the terminations of their employment with us, Messrs. Eswaran, Dhruv, and Shah were eligible) to participate in our Equity Acceleration Policy. Pursuant to our Equity Acceleration Policy, on a termination of an eligible employee’s employment either (i) by the Company (or any of its subsidiaries) other than for “cause,” death, or “disability” or (ii) by the eligible employee for “good reason” (as such terms are defined in the Equity Acceleration Policy or individual participation agreement), in either case, during the period beginning 60 days prior to a “change of control” (as defined in the Equity Acceleration Policy) and ending 12 months following a change of control, then, subject to the eligible employee’s signing and not revoking a release, the then-unvested shares subject to each of the eligible employee’s then-outstanding equity awards will immediately vest and, in the case of equity awards that are stock options and stock appreciation rights, will become exercisable to the extent set forth in the eligible employee’s participation agreement.
If any payment or benefit that an eligible employee would receive from the Company or any other party whether in connection with the Equity Acceleration Policy or otherwise would constitute a “parachute payment” within the meaning of Code Section 280G and could be subject to the related excise tax, the eligible employee would be entitled to receive either full payment of the payments and benefits under or such lesser amount which would result in no portion of the benefits being subject to the excise tax, whichever results in the greater amount of after-tax benefits to the eligible employee.
Each named executive officer, other than Mr. Shmunis, signed a participation agreement under the Equity Acceleration Policy providing for 100% vesting acceleration of their then-outstanding unvested equity awards. The provisions of the participation agreement superseded any double trigger equity acceleration provisions of any offer letter, employment agreement or equity award.
In March 2020, our compensation committee determined that for the awards of RSUs granted to Messrs. Shmunis, Dhruv, and Eswaran in the event of the termination without “cause”, termination “for good reason” (as such terms are defined in the Equity Acceleration Policy) or death or disability of Messrs. Shmunis, Dhruv, and Eswaran, the vesting of any awards of RSUs to be granted to such executive officer in fiscal 2020 that would have vested had such executive officer remained employed with the Company through the date that is 12 months following his effective last day with us will be accelerated (other than in connection with a death or disability from high-risk activities such as skydiving or free climbing).
Other Compensation Policies
Equity Award Grant Policy
Our equity award grant policy formalizes our process for granting equity-based awards. Under our equity award grant policy, our board of directors or the compensation committee may grant equity awards at any time. It is our policy to not time equity award grants in relation to the release of material non-public information. Under the policy, the compensation committee has delegated limited authority to a committee consisting of our CEO and a member of the compensation committee to grant equity awards to employees below the level of Vice President and certain other service providers other than the members of our board of directors.
Compensation Recovery Policy
Currently, we have not implemented a policy regarding retroactive adjustments to any cash or equity-based incentive compensation paid to our named executive officers and other employees where the payments were predicated upon the achievement of financial results that were subsequently the subject of a financial restatement. We intend to adopt a general compensation recovery, or clawback, policy covering our annual and long-term incentive award plans and arrangements once the SEC adopts final rules implementing the requirement of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Derivatives Trading, Hedging and Pledging Policy
Pursuant to our insider trading policy, our employees, including the members of our executive team and the members of our board of directors, are prohibited from engaging in transactions involving derivative securities or otherwise that would hedge the risk of ownership of our equity securities and from pledging our equity securities as collateral for a loan.
Tax and Accounting Considerations
Tax Considerations
We have not provided any of our named executive officers with a gross-up or other reimbursement for tax amounts the individual might pay pursuant to Code Sections 280G, 4999 or 409A. Code Sections 280G and 4999 provide that named executive officers, directors who hold significant stockholder interests and certain other service providers could be subject to significant additional taxes if they receive payments or benefits in connection with a change in control of our Company that exceeds certain limits, and that we or our successor could lose a deduction on the amounts subject to the additional tax. Code Section 409A also imposes significant taxes on the individual in the event that an executive officer, director or other service provider receives “deferred compensation” that does not meet the requirements of Code Section 409A.
Under Code Section 162(m), we are subject to limits on the deductibility of executive compensation. Deductible compensation is limited to $1 million per year for the CEO and certain of our current and former highly compensated executive officers (collectively “covered employees”). While we cannot predict how the deductibility limit may impact our compensation program in future years, we intend to maintain an approach to executive compensation that strongly links pay to performance. In addition, although we have not adopted a formal policy regarding tax deductibility of compensation paid to our named executive officers, the compensation committee may consider tax deductibility under Code Section 162(m) as a factor in its compensation decisions.
Accounting Considerations
We take financial reporting implications into consideration in designing compensation plans and arrangements for the members of our executive team, other employees and attract qualified personnelmembers of our board of directors. These accounting considerations include Financial Accounting Standards Board Accounting Standards Codification Topic 718 (“ASC Topic 718”), the standard which governs the accounting treatment of stock-based compensation awards.
Compensation-Related Risk
Our board of directors is responsible for the oversight of our risk profile, including compensation-related risks. Our compensation committee monitors our compensation policies and practices as applied to fill key positions, we may be unableour employees to manageensure that these policies and practices do not encourage excessive and unnecessary risk-taking. In cooperation with management, our business effectively, includingcompensation committee reviewed our 2021 compensation programs. Our compensation committee believes the development, marketing,mix and sale
design of the elements of such programs do not encourage our employees to assume excessive risks and new subscriptions, which couldaccordingly are not reasonably likely to have a material adverse effect on our business,Company. We have designed our compensation programs to be balanced so that our employees are focused on both short-term and long-term financial condition, and results of operations. Tooperational performance. In particular, the extent we hire personnel from competitors, we may be subject to allegationsweighting towards long-term incentive compensation discourages short-term risk taking. Goals are appropriately set with targets that they have been improperly solicited or divulged proprietary or other confidential information. Volatility in, or lack of performance of, our stock price may also affect our ability to attract and retain key personnel.
Increased customer turnover, or costs we incur to retain and upsell our customers, could materially and adversely affect our financial performance.
Although we have entered into long-term contracts with larger customers, those customers who do not have long-term contracts with us may terminate their subscriptions at any time without penalty or early termination charges. We cannot accurately predict the rate of customer terminations or average monthly subscription cancellations or failures to renew, which we refer to as turnover. Our customers with subscription agreements have no obligation to renew their subscriptions for our service after the expiration of their initial subscription period, which is typically between one and three years. In the event that these customers do renew their subscriptions, they may choose to renew for fewer users, shorter contract lengths, or for a less expensive subscription plan or edition. We cannot predict the renewal rates for customers that have entered into subscription contracts with us.
Customer turnover, as well as reductionsencourage growth in the number of users for which a customer subscribes, each could have a significant impact on our results of operations, as does the cost we incur in our efforts to retain our customers and encourage them to upgrade their subscriptions and increase their number of users. Our turnover rate could increase in the future if customers are not satisfied with our subscriptions, the value proposition of our subscriptions or our ability to otherwise meet their needs and expectations. Turnover and reductions in the number of users for whom a customer subscribes may also increase due to factors beyond our control, including the failure or unwillingness of customers to pay their monthly subscription fees due to financial constraints and the impact of a slowing economy. Due to turnover and reductions in the number of users for whom a customer subscribes, we must acquire new customers, or acquire new users within our existing customer base, on an ongoing basis simply to maintain our existing level of customers and revenues. If a significant number of customers terminate, reduce, or fail to renewbusiness.
their subscriptions, we may be required to incur significantly higher marketing expenditures than we currently anticipate in order to increase the number of new customers or to upsell existing customers, and such additional marketing expenditures could harm our business and results of operations.
Our future success also depends in part on our ability to sell additional subscriptions and additional functionalities to our current customers. This may require increasingly sophisticated and more costly sales efforts and a longer sales cycle. Any increase in the costs necessary to upgrade, expand and retain existing customers could materially and adversely affect our financial performance. If our efforts to convince customers to add users and, in the future, to purchase additional functionalities are not successful, our business may suffer. In addition, such increased costs could cause us to increase our subscription rates, which could increase our turnover rate.
If we are unable to attract new customers to our subscriptions or upsell to those customers on a cost-effective basis, our business will be materially and adversely affected.
In order to grow our business, we must continue to attract new customers and expand the number of users in, and services provided to, our existing customer base on a cost-effective basis. We use and periodically adjust the mix of advertising and marketing programs to promote our subscriptions. Significant increases in the pricing of one or more of our advertising channels would increase our advertising costs or may cause us to choose less expensive and perhaps less effective channels to promote our subscriptions. As we add to or change the mix of our advertising and marketing strategies, we may need to expand into channels with significantly higher costs than our current programs, which could materially and adversely affect our results of operations. We will incur advertising and marketing expenses in advance of when we anticipate recognizing any revenues generated by such expenses, and we may fail to otherwise experience an increase in revenues or brand awareness as a result of such expenditures. We have made in the past, and may make in the future, significant expenditures and investments in new advertising campaigns, and we cannot assure you that any such investments will lead to the cost-effective acquisition of additional customers. If we are unable to maintain effective advertising programs, our ability to attract new customers could be materially and adversely affected, our advertising and marketing expenses could increase substantially, and our results of operations may suffer.
Some of our potential customers learn about us through leading search engines, such as Google, Yahoo!, and Bing. While we employ search engine optimization and search engine marketing strategies, our ability to maintain and increase the number of visitors directed to our website is not entirely within our control. If search engine companies modify their search algorithms in a manner that reduces the prominence of our listing, or if our competitors’ search engine optimization efforts are more successful than ours, or if search engine companies restrict or prohibit us from using their services, fewer potential customers may click through to our website. In addition, the cost of purchased listings has increased in the past and may increase in the future. A decrease in website traffic or an increase in search costs could materially and adversely affect our customer acquisition efforts and our results of operations.
Significant portion of our revenues today come from small and medium-sized businesses, which may have fewer financial resources to weather an economic downturn.
A significant portion of our revenues today come from small and medium-sized businesses. These customers may be materially and adversely affected by economic downturns to a greater extent than larger, more established businesses. These businesses typically have more limited financial resources, including capital-borrowing capacity, than larger entities. As the majority of our customers pay for our subscriptions through credit and debit cards, weakness in certain segmentsReport of the credit markets and inCompensation Committee
The following Report of the U.S. and global economies has resulted in and may in the future result in increased numbers of rejected credit and debit card payments, which could materially affect our business by increasing customer cancellations and impacting our ability to engage new small and medium-sized customers. If small and medium-sized businesses experience financial hardship as a result of a weak economy, industry consolidation or for any other reason, the overall demand for our subscriptions could be materially and adversely affected.
We face significant risks in our strategy to target medium-sized and larger businesses for sales of our subscriptions and, if we do not manage these efforts effectively, our business and results of operations could be materially and adversely affected.
Sales to medium-sized and larger businesses continue to grow in both absolute dollars and as a percentage of our total sales. As we continue to target more of our sales efforts to medium-sized and larger businesses, we expect to incur higher costs and longer sales cycles and we may be less effective at predicting when we will complete these sales. In these market segments, the decision to purchase our subscriptions generally requires the approval of more technical personnel and management levels within a potential customer’s organization, and therefore, these types of sales require us to invest more time educating these potential customers about the benefits of our subscriptions. In addition, larger customers may demand more features, integration services, and customization, and may require highly skilled sales and support personnel. Our investment in marketing our
subscriptions to these potential customers maycompensation committee shall not be successful, which could significantlydeemed to be “soliciting material” and adversely affect our results of operations and our overall ability to grow our customer base. Furthermore, many medium-sized and larger businesses that we target for sales may already purchase business communications solutions from our larger competitors. As a result of these factors, these sales opportunities may require us to devote greater research and development resources and sales support to individual customers, and invest in hiring and retaining highly skilled personnel, resulting in increased costs and could likely lengthen our typical sales cycle, which could strain our sales and support resources. Moreover, these larger transactions may require us to delay recognizing the associated revenues we derive from these customers until any technical or implementation requirements have been met.
Support for smartphones and tablets are an integral part of our solutions. If we are unable to develop robust mobile applications that operate on mobile platforms that our customers use, our business and results of operations could be materially and adversely affected.
Our solutions allow our customers to use and manage our cloud-based business communications solution on smart devices. As new smart devices and operating systems are released, we may encounter difficulties supporting these devices and services, and we may need to devote significant resources to the creation, support, and maintenance of our mobile applications. In addition, if we experience difficulties in the future integrating our mobile applications into smart devices or if problems arise with our relationships with providers of mobile operating systems, such as those of Apple Inc. or Alphabet Inc. (the parent company of Google Inc.), our future growth and our results of operations could suffer.
If we are unable to develop, license, or acquire new services or applications on a timely and cost-effective basis, our business, financial condition, and results of operations may be materially and adversely affected.
The cloud-based business communications industry is an emerging market that is characterized by rapid development of and changes in customer requirements, frequent introductions of new and enhanced services, and continuing and rapid technological advancement. We cannot predict the effect of technological changes on our business, and the market for cloud-based business communications may develop more slowly than we anticipate, or develop in a manner different than we expect, and our solutions could fail to achieve market acceptance. Our continued growth depends on continued use of voice and video communications by businesses, as compared to email and other data-based methods, and future demand for and adoption of Internet voice and video communications systems and services. In addition, to compete successfully in this emerging market, we must anticipate and adapt to technological changes and evolving industry standards, and continue to design, develop, manufacture, and sell new and enhanced services that provide increasingly higher levels of performance and reliability at lower cost. Currently, we derive a majority of our revenues from subscriptions to RingCentral Office, and we expect this will continue for the foreseeable future. However, our future success will also depend on our ability to introduce and sell new services, features, and functionality that enhance or are beyond the subscriptions we currently offer, as well as to improve usability and support and increase customer satisfaction. Our failure to develop solutions that satisfy customer preferences in a timely and cost-effective manner may harm our ability to renew our subscriptions with existing customers and create or increase demand for our subscriptions and may materially and adversely impact our results of operations.
The introduction of new services by competitors or the development of entirely new technologies to replace existing offerings could make our solutions obsolete or adversely affect our business and results of operations. Announcements of future releases and new services and technologies by our competitors or us could cause customers to defer purchases of our existing subscriptions, which also could have a material adverse effect on our business, financial condition or results of operations. We may experience difficulties with software development, operations, design, or marketing that could delay or prevent our development, introduction, or implementation of new or enhanced services and applications. We have in the past experienced delays in the planned release dates of new features and upgrades and have discovered defects in new services and applications after their introduction. We cannot assure you that new features or upgrades will be released according to schedule, or that, when released, they will not contain defects. Either of these situations could result in adverse publicity, loss of revenues, delay in market acceptance, or claims by customers brought against us, all of which could harm our reputation, business, results of operations, and financial condition. Moreover, the development of new or enhanced services or applications may require substantial investment, and we must continue to invest a significant amount of resources in our research and development efforts to develop these services and applications to remain competitive. We do not know whether these investments will be successful. If customers do not widely adopt any new or enhanced services and applications, we mayshould not be able to realize a return on our investment. If we are unable to develop, license, or acquire new or enhanced servicesdeemed “filed” and applications on a timely and cost-effective basis, or if such new or enhanced services and applications do not achieve market acceptance, our business, financial condition, and results of operations may be materially and adversely affected.
If we fail to continue to develop our brand or our reputation is harmed, our business may suffer.
We believe that continuing to strengthen our current brand will be critical to achieving widespread acceptance of our subscriptions and will require continued focus on active marketing efforts. The demand for and cost of online and traditional advertising have been increasing and may continue to increase. Accordingly, we may need to increase our investment in, and devote greater resources to, advertising, marketing, and other efforts to create and maintain brand loyalty among users. Brand promotion activities may not yield increased revenues, and even if they do, any increased revenues may not offset the expenses incurred in building our brand. In addition, if we do not handle customer complaints effectively, our brand and reputation may suffer, we may lose our customers’ confidence, and they may choose to terminate, reduce or not to renew their subscriptions. Many of our customers also participate in social media and online blogs about Internet-based software solutions, including our subscriptions, and our success depends in part on our ability to minimize negative and generate positive customer feedback through such online channels where existing and potential customers seek and share information. If we fail to promote and maintain our brand, our business could be materially and adversely affected.
If we experience excessive fraudulent activity or cannot meet evolving credit card association merchant standards, we could incur substantial costs and lose the right to accept credit cards for payment, which could cause our customer base to decline significantly.
Most of our customers authorize us to bill their credit card accounts directly for service fees that we charge. If customers pay for our subscriptions with stolen credit cards, we could incur substantial third-party vendor costs for which we mayshall not be reimbursed. Further, our customers provide us with credit card billing information online or over the phone, and we do not review the physical credit cards useddeemed to be incorporated by reference in these transactions, which increases our risk of exposure to fraudulent activity. We also incur charges, which are referred to in the industry as chargebacks, from the credit card companies from claims that a customer did not authorize the specific credit card transaction to purchase our subscription. If the number of chargebacks becomes excessive, we could be assessed substantial fines or be charged higher transaction fees, and we could lose the right to accept credit cards for payment. In addition, credit card issuers may change merchant and/or service provider standards, including data protection standards, required to utilize their services from time to time. We have established and implemented measures intended to complyfuture filings with the Payment Card Industry Data Security Standard (“PCI DSS”) in the United States, Canada, and the U.K. If we fail to maintain compliance with such standards or fail to meet new standards, the credit card associations could fine us or terminate their agreements with us, and we would be unable to accept credit cards as payment for our subscriptions. If we fail to maintain compliance with current service provider standards, such as PCI DSS, or fail to meet new standards, customers may choose not to use our services for certain types of communication they have with their customers. If such a failure to comply with relevant standards occurs, we may also face legal liability if we are found to not comply with applicable laws that incorporate, by reference or by adoption of substantially similar provisions, merchant or service provider standards, including PCI DSS. Our subscriptions may also be subject to fraudulent usage, including but not limited to revenue share fraud, domestic traffic pumping, subscription fraud, premium text message scams, and other fraudulent schemes. This usage can result in, among other things, substantial bills from our vendors, for which we would be responsible, for terminating fraudulent call traffic. In addition, third parties may have attempted in the past, and may attempt in the future, to induce employees, sub-contractors, or consultants into disclosing customer credentials and other account information, which can result in unauthorized access to customer accounts and customer data, unauthorized use of customers’ services, charges to customers for fraudulent usage and costs that we must pay to carriers. Although we implement multiple fraud prevention and detection controls, we cannot assure you that these controls will be adequate to protect against fraud. Substantial losses due to fraud or our inability to accept credit card payments could cause our paid customer base to significantly decrease, which would have a material adverse effect on our results of operations, financial condition, and ability to grow our business.
We are in the process of expanding our international operations, which exposes us to significant risks.
We have significant operations in the United States, Canada, the United Kingdom, Russia, China, Ukraine, the Philippines and France. We also sell our solutions to customers in other countries in the EU and in Australia, and we expect to grow our international presence in the future. The future success of our business will depend, in part, on our ability to expand our operations and customer base worldwide. Operating in international markets requires significant resources and management attention and will subject us to regulatory, economic, and political risks that are different from those in the U.S. Due to our limited experience with international operations and developing and managing sales and distribution channels in international markets, our international expansion efforts may not be successful. In addition, we will face risks in doing business internationally that could materially and adversely affect our business, including:
our ability to comply with differing and evolving technical and environmental standards, telecommunications regulations, and certification requirements outside the U.S.;
difficulties and costs associated with staffing and managing foreign operations;
our ability to effectively price our subscriptions in competitive international markets;
potentially greater difficulty collecting accounts receivable and longer payment cycles;
the need to adapt and localize our subscriptions for specific countries;
the need to offer customer care in various native languages;
reliance on third parties over which we have limited control, including those that market and resell our subscriptions;
availability of reliable broadband connectivity and wide area networks in targeted areas for expansion;
lower levels of adoption of credit or debit card usage for Internet related purchases by foreign customers and compliance with various foreign regulations related to credit or debit card processing and data protection requirements;
difficulties in understanding and complying with local laws, regulations, and customs in foreign jurisdictions;
restrictions on travel to or from countries in which we operate or inability to access certain areas;
export controls and economic sanctions;
changes in diplomatic and trade relationships, including tariffs and other non-tariff barriers, such as quotas and local content rules;
U.S. government trade restrictions, including those which may impose restrictions, including prohibitions, on the exportation, re-exportation, sale, shipment or other transfer of programming, technology, components, and/or services to foreign persons;
our ability to comply with different and evolving laws, rules, and regulations, including the European General Data Protection Regulation (the “GDPR”) and other data privacy and data protection laws, rules and regulations;
compliance with various anti-bribery and anti-corruption laws such as the Foreign Corrupt Practices Act and U.K. Bribery Act of 2010;
more limited protection for intellectual property rights in some countries;
adverse tax consequences;
fluctuations in currency exchange rates;
exchange control regulations, which might restrict or prohibit our conversion of other currencies into U.S. Dollars;
restrictions on the transfer of funds;
new and different sources of competition;
political and economic instability created by the U.K.'s departure from the EU ("Brexit"); and
deterioration of political relations between the U.S. and other countries in which we operate, particularly Russia, Ukraine, China, and the Philippines; or
political or social unrest, economic instability, conflict or war in such countries, or sanctions implemented by the U.S. against these countries, all of which could have a material adverse effect on our operations.
Our failure to manage any of these risks successfully could harm our future international operations and our overall business.
We may expand through acquisitions of, investments in, or strategic partnerships or other strategic transactions with other companies, each of which may divert our management’s attention, result in additional dilution to our stockholders, increase expenses, disrupt our operations, and harm our results of operations.
Our business strategy may, from time to time, include acquiring or investing in complementary services, technologies or businesses, strategic investments and partnerships, or other strategic transactions, such as our recent acquisitions of Dimelo SA and Connect First, and our investment in and strategic partnerships with Avaya and Atos. We cannot assure you that we will successfully identify suitable acquisition candidates or transaction counterparties, integrate or manage disparate technologies, lines of business, personnel and corporate cultures, realize our business strategy or the expected return on our investment, or manage a geographically dispersed company. Any such acquisition, investment, strategic partnership, or other strategic transaction could materially and adversely affect our results of operations. The process of negotiating, effecting, and realizing the benefits from acquisitions, investments, strategic partnerships, and strategic transactions is complex, expensive and time-consuming, and may cause an interruption of, or loss of momentum in, development and sales activities and operations of both companies, and we may incur substantial cost and expense, as well as divert the attention of management. We may issue equity securities which could dilute current stockholders’ ownership, incur debt, assume contingent or other liabilities and expend cash in acquisitions, investments, strategic partnerships, and other strategic transactions which could negatively impact our financial position, stockholder equity, and stock price.
Acquisitions, investments, strategic partnerships, and other strategic transactions involve significant risks and uncertainties, including:
the potential failure to achieve the expected benefits of the acquisition, investment, strategic partnership, or other strategic transaction;
unanticipated costs and liabilities;
difficulties in integrating new solutions and subscriptions, software, businesses, operations, and technology infrastructure in an efficient and effective manner;
difficulties in maintaining customer relations;
the potential loss of key employees of any acquired businesses;
the diversion of the attention of our senior management from the operation of our daily business;
the potential adverse effect on our cash positionSEC, except to the extent that we use cashthe Company specifically incorporates it by reference into a document filed under the Securities Act or the Exchange Act.
The compensation committee has reviewed and discussed with management the Compensation Discussion and Analysis provided above. Based on its review and discussions, the compensation committee recommended to the board of directors that the Compensation Discussion and Analysis be included in this Amendment No. 1 on Form 10-K/A to the Company’s annual report on Form 10-K for the transaction consideration;year ended December 31, 2021, filed with the SEC on March 1, 2022.
Respectfully submitted by the potential significant increasemembers of the compensation committee of the board of directors:
Robert Theis (Chair)
Michelle McKenna
Allan Thygesen
Summary Compensation Table
The following table provides information regarding the compensation of our interest expense, leverage,named executive officers during fiscal 2021.
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| Name and Principal Position | | Year | | Salary ($) | | Bonus ($) | | Stock Awards ($) (1) | | Non-Equity Incentive Plan Compensation ($) (2) | | All Other Compensation ($) (3) | | Total ($) |
| Vladimir Shmunis Chief Executive Officer | | 2021 | | 5,175 (4) | | — | | | 18,439,095 (5) | | 776,713 (6) | | 828 | | 19,221,811 | |
| 2020 | | 4,800 (7) | | — | | | 18,148,589 (8) | | 905,466 (9) | | 576 | | | 19,059,431 | |
| 2019 | | 141,100 (10) | | — | | | 8,670,985 (11) | | 1,007,157 (12) | | 852 | | | 9,820,094 | |
| Anand Eswaran Former President and Chief Operating Officer | | 2021 | | 310,208 (13) | | — | | | 45,676,750 (14) | | 520,901 (15) | | 828 | | 46,508,687 | |
| 2020 | | 581,923 | | | — | | | 17,373,280 (16) | | 835,625 (17) | | 576 | | | 18,791,404 | |
| 2019 | | — | | | — | | | — | | | — | | | — | | | — | |
| Mitesh Dhruv Former Chief Financial Officer | | 2021 | | 335,547 (18) | | — | | | 27,882,614 (19) | | 451,110 (20) | | 828 | | 28,670,099 | |
| 2020 | | 500,000 | | | — | | | 8,722,581 (21) | | 696,804 (22) | | 576 | | | 9,919,961 | |
| 2019 | | 475,000 | | | — | | | 22,014,427 (23) | | 766,341 (24) | | 852 | | | 23,256,620 | |
| John Marlow Chief Administrative Officer, Senior Vice President, Corporate Development, General Counsel and Secretary | | 2021 | | 204,375 (25) | | — | | | 12,006,768 (26) | | 416,753 (27) | | 45,828 | | | 12,673,724 | |
| 2020 | | 375,000 | | | — | | | 4,361,290 (28) | | 435,773 (29) | | 2,172,719 | | | 7,344,782 | |
| 2019 | | 375,000 | | | — | | | 1,975,543 (30) | | 431,151 (31) | | 852 | | | 2,782,546 | |
| Praful Shah Former Chief Strategy Officer | | 2021 | | 315,674 (32) | | | | 9,493,648 (33) | | 182,853 (34) | | 828 | | 9,993,003 | |
| 2020 | | 385,000 | | | — | | | 2,540,199 (35) | | 402,527 (36) | | 576 | | | 3,328,302 | |
| 2019 | | 374,500 | | | — | | | 1,623,445 (37) | | 452,221 (38) | | 852 | | | 2,451,018 | |
(1)The amounts in the “Stock Awards” column represent the aggregate fair market value of RSUs granted in the applicable year and debt service requirements if we incur additional debtcalculated in accordance with ASC Topic 718. As required by SEC rules, the amounts shown exclude the impact of estimated forfeitures related to pay for an acquisition, investment, strategic partnership, or other strategic transaction;service-based vesting conditions.
(2)Amounts in this column represent the potential issuanceaggregate fair market value of securities that would dilute our stockholders’ percentage ownership;
the potential to incur large and immediate write-offs and restructuring and other related expenses;
the potential liability or expenses associated with new types of data stored, existing security obligations or liabilities, unknown weaknesses in our solutions, insufficient security measures in place, and compromise of our networks via access to our systems from assets not previouslyRSUs granted under our control;Key Employee Equity Bonus Plan, in lieu of a cash bonus earned for each quarter of 2019, 2020 and 2021, which is calculated in accordance with ASC Topic 718. The shares underlying these RSU awards were fully vested in the quarter following the quarter in which earned.
(3)This column represents (i) the inabilitydollar value of the benefit to maintain uniform standards, controls, policies,each named executive officer for the portion of the premium payable by the Company with respect to a life insurance policy, (ii) with respect to Mr. Marlow only for 2020, a gross-up payment for United Kingdom taxes in the amount of $2,172,143, and procedures.(iii) with respect to Mr. Marlow only for 2021, a Hart-Scott-Rodino filing fee paid by the Company on Mr. Marlow’s behalf in the amount of $45,000.
Any acquisition, investment, strategic partnership, or(4)This amount represents the $5,175 of cash salary actually paid to Mr. Shmunis in 2021. Mr. Shmunis received an award of 2,178 RSUs in lieu of payment in cash of $695,080 of his salary for the period from April 1, 2021 through March 31, 2022, and this amount does not include the portion of this $695,080 of salary attributable to the period from April 1, 2021 through December 31, 2021.
(5)The shares underlying the RSU award described in footnote 4 shall vest as to 2,178 of the underlying shares, subject to Mr. Shmunis’s continued role as a service provider to us, in 4 equal quarterly installments commencing August 20, 2021. The shares underlying the other strategic transaction could exposeRSU award granted to Mr. Shmunis on May 1, 2021 shall vest as to 56,396 of the underlying shares, subject to Mr. Shmunis’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2021. 100% of these RSU awards are subject to unknown liabilities. Moreover, we cannot assure you that we will realizeaccelerated vesting in the anticipated benefitsevent of any acquisition, investment, strategic partnership, or other strategic transaction. In addition, our inability to successfully operate and integrate newly acquired businesses or newly formed strategic partnerships appropriately, effectively, and in a timely manner could impair our ability to take advantagetermination of future growth opportunities and other advances in technology, as well as on our revenues, gross margins, and expenses.
For example,employment under certain circumstances in connection with our strategic partnership with Avaya, we purchased $125.0 milliona change of Avaya Series A Preferred Stockcontrol of the Company.
(6)Consists of 3,857 shares underlying RSU awards, 2,423 of which were fully vested in fiscal 2021 and made1,434 of which vested February 20, 2022.
(7)This amount represents the $4,800 of cash salary actually paid to Mr. Shmunis in 2020. Mr. Shmunis received an advanceaward of $375.0 million, predominantly3,340 RSUs in lieu of payment in cash of $645,200 of his salary for future commissions,the period from April 1, 2020 through March 31, 2021, and this amount does not include the portion of this $645,200 of salary attributable to the period from April 1, 2020 through December 31, 2020.
(8)The shares underlying the RSU award described in footnote 7 vested as wellto 3,340 of the underlying shares in 4 equal quarterly installments commencing August 20, 2020. The shares underlying the other RSU award granted to Mr. Shmunis on April 1, 2020 shall vest as for certain licensing rights (paid primarily in our Class A Common Stock). These are significant investments on which we may not realizeto 82,807 of the anticipated benefits for various reasons, including a lack of success in the marketing and sale of ACO, potential or actual financial distress, insolvency, or bankruptcy of Avaya or any of its subsidiaries, or other facts or circumstances that may limit our ability to recover, or realize benefits from, these investments.
We may beunderlying shares, subject to liabilities on past sales for taxes, surcharges, and fees and our operating results may be harmed if we are required to collect such amounts in jurisdictions where we have not historically done so.
We believe we collect state and local sales tax and use, excise, utility user, and ad valorem taxes, fees, or surcharges in all relevant jurisdictions in which we generate sales, based on our understanding of the applicable laws in those jurisdictions. Such tax, fees and surcharge laws and rates vary greatly by jurisdiction, and the application of such taxes to e-commerce businesses, such as ours, is a complex and evolving area. There is uncertainty as to what constitutes sufficient “in state presence” for a state to levy taxes, fees, and surcharges for sales made over the Internet, and after the U.S. Supreme Court’s ruling in South Dakota v. Wayfair, U.S. states may require an online retailer with no in-state property or personnel to collect and remit sales tax on sales to the state’s residents, which may permit wider enforcement of sales tax collection requirements. Therefore, the application of existing or future laws relating to indirect taxes to our business, or the audit of our business and operations with respect to such taxes or challenges of our positions by taxing authorities, all could result in increased tax liabilities for us or our customers that could materially and adversely affect our results of operations and our relationships with our customers.
Changes in effective tax rates, or adverse outcomes resulting from examination of our income or other tax returns, could adversely affect our results of operations and financial condition.
Our future effective tax rates could be subject to volatility or adversely affected by a number of factors, including:
changes in the valuation of our deferred tax assets and liabilities;
expiration of, or lapses in, the research and development tax credit laws;
expiration or non-utilization of net operating loss carryforwards;
tax effects of share-based compensation;
expansion into new jurisdictions;
potential challenges to and costs related to implementation and ongoing operation of our intercompany arrangements;
changes in tax laws and regulations and accounting principles, or interpretations or applications thereof; and
certain non-deductible expensesMr. Shmunis’s continued role as a resultservice provider to us, in 16 equal quarterly installments commencing May 20, 2020. 100% of acquisitions.
Any changes in our effective tax rate could adversely affect our results of operations.
Changes in U.S. and foreign tax laws could have a material adverse effect on our business, cash flow, results of operations or financial conditions.
Wethese RSU awards are subject to tax legislationaccelerated vesting in several countries; changesthe event of termination of employment under certain circumstances in tax laws or challengesconnection with a change of control of the Company.
(9)Consists of 2,877 shares underlying RSU awards, 2,265 of which were fully vested in fiscal 2020 and 612 of which vested on February 20, 2021.
(10)This amount represents the $141,100 of cash salary actually paid to our tax positions could adversely affect our business, resultsMr. Shmunis in 2019. Mr. Shmunis received an award of operations,6,095 RSUs in lieu of payment in cash of $645,200 of his salary for the period from April 1, 2019 through March 31, 2020, and financial condition. As such, wethis amount does not include the portion of this $645,200 of salary attributable to the period from April 1, 2019 through December 31, 2019.
(11)The shares underlying the RSU award described in footnote 10 vested as to 6,095 of the underlying shares in 4 equal quarterly installments commencing May 20, 2019. The shares underlying the other RSU award granted to Mr. Shmunis on April 24, 2019 shall vest as to 71,602 of the underlying shares, subject to Mr. Shmunis’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2019. 100% of these RSU awards are subject to tax laws, regulations, and policies of the U.S. federal, state, and local governments and of comparable taxing authorities in foreign jurisdictions. Changes in tax laws, including the U.S. federal tax legislation enacted in 2017, commonly referred to as the Tax Cuts and Jobs Act of 2017, as well as other factors, could cause us to experience fluctuations in our tax obligations and effective tax rates in 2018 and thereafter and otherwise adversely affect our tax positions and/or our tax liabilities. There can be no assurance that our effective tax rates, tax payments, tax credits, or incentives will not be adversely affected by these or other initiatives.
We may be unable to use some or all of our net operating loss carryforwards, which could materially and adversely affect our reported financial condition and results of operations.
As of December 31, 2019, we had federal and state net operating loss carryforwards (“NOLs”) of $782.7 million and $675.6 million, respectively, available to offset future taxable income, due to prior period losses, which, if not utilized, will begin to expire in 2023 for federal purposes and will begin to expire in 2021 for state purposes. We also have federal research tax credit carryforwards that will begin to expire in 2028. Realization of these net operating loss and research tax credit carryforwards depends on future income, and there is a risk that our existing carryforwards could expire unused and be unavailable to offset future income tax liabilities, which could materially and adversely affect our results of operations.
In addition, under Section 382 of the Internal Revenue Code of 1986, as amended, our ability to utilize net operating loss carryforwards or other tax attributes, such as research tax credits, in any taxable year may be limited if we experience an “ownership change.” A Section 382 “ownership change” generally occurs if one or more stockholders or groups of stockholders, who each own at least 5% of our stock, increase their collective ownership by more than 50 percentage points over their lowest ownership percentage within a rolling three-year period. Similar rules may apply under state tax laws.
No material deferred tax assets have been recognized on our Consolidated Balance Sheets related to these NOLs, as they are fully offset by a valuation allowance. If we have previously had, or haveaccelerated vesting in the future, one or more Section 382 “ownership changes,” includingevent of termination of employment under certain circumstances in connection with our initial public offering or another offering, or if we do not generate sufficient taxable income, we may not be ablea change of control of the Company.
(12)Consists of 6,171 shares underlying RSU awards, 4,816 of which were fully vested in fiscal 2019 and 1,355 of which vested on February 20, 2020.
(13)This amount represents the $310,208 of cash salary actually paid to utilizeMr. Eswaran in 2021. Mr. Eswaran received (i) an award of 353 RSUs in lieu of payment in cash of $94,167 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 578 RSUs in lieu of payment in cash of $141,250 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 267 RSUs in lieu of payment in cash of $70,625 of his salary for the period from November 16, 2021 through December 31, 2021.
(14)The shares underlying the RSU award described in footnote 13 were fully vested as to 1,198 of the underlying shares in fiscal 2021. The remaining RSU awards comprised two grants, whose underlying shares vested as follows (i) 87,728 of the underlying shares vested in 16 equal quarterly installments commencing May 20, 2021, and (ii) 56,396 of the underlying shares vested in 8 equal quarterly installments commencing May 20, 2021. In connection with his resignation in December 2021, Mr. Eswaran forfeited all of his then-unvested equity awards.
(15)Consists of 2,093 shares underlying RSU awards, all of which were fully vested in fiscal 2021.
(16)The shares underlying this RSU award vested as to 84,230 of the underlying shares in 16 equal quarterly installments commencing February 20, 2020. In connection with his resignation in December 2021, Mr. Eswaran forfeited all of his then-unvested equity awards.
(17)Consists of 2,655 shares underlying RSU awards, 2,090 of which were fully vested in fiscal 2020 and 565 of which vested on February 20, 2021.
(18)This amount represents the $335,547 of cash salary actually paid to Mr. Dhruv in 2021, consisting of $272,083 of base salary and $63,463 cash paid to Mr. Dhruv in lieu of vacation in connection with Mr. Dhruv’s resignation from the Company on December 31, 2021. Mr. Dhruv received (i) an award of 306 RSUs in lieu of payment in cash of $81,667 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 501 RSUs in lieu of payment in cash of $122,500 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 232 RSUs in lieu of payment in cash of $61,250 of his salary for the period from November 16, 2021 through December 31, 2021.
(19)The shares underlying the RSU award described in footnote 18 were fully vested as to 1,039 of the underlying shares in fiscal 2021. The shares underlying the other RSU award granted on May 1, 2021 vested as to 87,728 of the underlying shares in 16 equal quarterly installments commencing May 20, 2021. In connection with his resignation in December 2021, Mr. Dhruv forfeited all of his then-unvested equity awards.
(20)Consists of 1,811 shares underlying RSU awards, all of which were fully vested in fiscal 2021.
(21)The shares underlying the RSU award granted on April 1, 2020 vested as to 41,404 of the underlying shares in 16 equal quarterly installments commencing May 20, 2020. In connection with his resignation in December 2021, Mr. Dhruv forfeited all of his then-unvested equity awards.
(22)Consists of 2,214 shares underlying RSU awards, 1,743 of which were fully vested in fiscal 2020 and 471 of which vested on February 20, 2021.
(23)The shares underlying the RSU award granted on April 24, 2019 vested as to 32,873 of the underlying shares in 16 equal quarterly installments commencing May 20, 2019. The shares underlying the RSU award granted on December 29, 2019 vested as to 110,000 of the underlying shares in 4 equal quarterly installments commencing February 20, 2020. In connection with his resignation in December 2021, Mr. Dhruv forfeited all of his then-unvested equity awards.
(24)Consists of 4,676 shares underlying RSU awards, 3,634 of which were fully vested in fiscal 2019 and 1,042 of which vested on February 20, 2020.
(25)This amount represents the $204,375 of cash salary actually paid to Mr. Marlow in 2021. Mr. Marlow received (i) an award of 197 RSUs in lieu of payment in cash of $52,500 of his salary for the period from June 16, 2021 through August 15, 2021, (ii) an award of 322 RSUs in lieu of payment in cash of $78,750 of his salary for the period from August 16, 2021 through November 15, 2021, and (iii) an award of 149 RSUs in lieu of payment in cash of $39,375 of his salary for the period from November 16, 2021 through December 31, 2021.
(26)The shares underlying the RSU award described in footnote 25 were fully vested as to 668 of the underlying shares in fiscal 2021. The shares underlying the other RSU award granted on May 1, 2021 shall vest as to 37,598 of the underlying shares, subject to Mr. Marlow’s continued role as a material portion of our NOLs, even if we achieve profitability. If we are limited in our ability to use our NOLs in future years in which we have taxable income, we will pay more taxes than if we were able to fully utilize our NOLs. This could materially and adversely affect our results of operations.
If we are unable to effectively process local number and toll-free number portability provisioning in a timely manner, our growth may be negatively affected.
We support local number and toll-free number portability, which allows our customers to transferservice provider to us, and thereby retain their existing phone numbers when subscribing to our services. Transferring numbers is a manual process that can take up to 15 business days or longer to complete. A new customer of our subscriptions must maintain both our subscription and the customer’s existing phone service during the number transferring process. Any delay that we experience in transferring these numbers typically results from the fact that we depend on third-party carriers to transfer these numbers, a process that we do not control, and these third-party carriers may refuse or substantially delay the transfer16 equal quarterly installments commencing May 20, 2021. 100% of these numbers to us. Local number portability is considered an important feature by many potential customers, and if we fail to reduce any related delays, we may experience increased difficulty in acquiring new customers. Moreover, the FCC requires Internet voice communications providers to comply with specified number porting timeframes when customers leave our subscription for the services of another provider. Several international jurisdictions have imposed similar number portability requirements on subscription providers like us. If we or our third-party carriers are unable to process number portability requests within the requisite timeframes, we could be subject to fines and penalties. Additionally, in the U.S., both customers and carriers may seek relief from the relevant state public utility commission, the FCC, or in state or federal court for violation of local number portability requirements.
Our business could suffer if we cannot obtain or retain direct inward dialing numbers or are prohibited from obtaining local or toll-free numbers or if we are limited to distributing local or toll-free numbers to only certain customers.
Our future success depends on our ability to procure large quantities of local and toll-free direct inward dialing numbers (“DIDs”) in the U.S. and foreign countries in desirable locations at a reasonable cost and without restrictions. Our ability to procure and distribute DIDs depends on factors outside of our control, such as applicable regulations, the practices of the communications carriers that provide DIDs, the cost of these DIDs, and the level of demand for new DIDs. Due to their limited availability, there are certain popular area code prefixes that we generally cannot obtain. Our inability to acquire DIDs for our operations would
make our subscriptions less attractive to potential customers in the affected local geographic areas. In addition, future growth in our customer base, together with growth in the customer bases of other providers of cloud-based business communications, has increased, which increases our dependence on needing sufficiently large quantities of DIDs.
We may not be able to manage our inventory levels effectively, which may lead to inventory obsolescence that would force us to incur inventory write-downs.
Our vendor-supplied phones have lead times of up to 10 to 13 weeks for delivery to our fulfillment agents and are built to forecasts that are necessarily imprecise. It is likely that, from time to time, we will have either excess or insufficient product inventory. In addition, because we rely on third-party vendors for the supply of our vendor-supplied phones, our inventory levelsRSU awards are subject to accelerated vesting in the conditionsevent of termination of employment under certain circumstances in connection with a change of control of the Company.
(27)Consists of 1,871 shares underlying RSU awards, 1,219 of which were fully vested in fiscal 2021 and 652 of which vested on February 20, 2022.
(28)The shares underlying this RSU award shall vest as to 20,702 of the underlying shares, subject to Mr. Marlow’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2020. 100% of this RSU award is subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(29)Consists of 1,376 shares underlying RSU awards, 1,070 of which were fully vested in fiscal 2020 and 306 of which vested on February 20, 2021.
(30)The shares underlying this RSU award shall vest as to 17,702 of the underlying shares, subject to Mr. Marlow’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2019. 100% of this RSU award is subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(31)Consists of 2,631 shares underlying RSU awards, 2,045 of which were fully vested in fiscal 2019 and 586 of which vested on February 20, 2020.
(32)This amount represents the $315,674 of cash salary paid to Mr. Shah in 2021, consisting of $271,250 of base salary and $44,424 cash paid to Mr. Shah in lieu of vacation in connection with Mr. Shah’s resignation from the Company on September 14, 2021.
(33)Comprises shares underlying two RSU awards: (i) an RSU award granted on May 1, 2021 that vested as to 18,799 of the underlying shares in 16 equal quarterly installments commencing May 20, 2021; and (ii) an RSU award granted on September 2, 2021 that shall vest as to 13,995 shares on August 20, 2022. In connection with his resignation in September 2021, Mr. Shah forfeited all of his then-unvested equity awards, other than the RSU award granted on September 2, 2021.
(34)Consists of 759 shares underlying RSU awards, all of which were fully vested in fiscal 2021.
(35)The shares underlying this RSU award vested as to 12,040 of the underlying shares in 16 equal quarterly installments commencing May 20, 2020. In connection with his resignation in September 2021, Mr. Shah forfeited all of his then-unvested equity awards, other than the RSU award granted on September 2, 2021.
(36)Consists of 1,279 shares underlying RSU awards, 1,007 of which were fully vested in fiscal 2019 and 272 of which vested on February 20, 2021.
(37)The shares underlying this RSU award vested as to 14,547 of the underlying shares in 16 equal quarterly installments commencing May 20, 2019. In connection with his resignation in September 2021, Mr. Shah forfeited all of his then-unvested equity awards, other than the RSU award granted on September 2, 2021.
(38)Consists of 2,782 shares underlying RSU awards, 2,180 of which were fully vested in fiscal 2019 and 602 of which vested on February 20, 2020.
Grants of Plan-Based Awards in 2021
The following table sets forth information regarding grants of awards made to our named executive officers during fiscal 2021. We did not grant any cash awards under our 2013 Plan during fiscal 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | Equity Grants |
| Name | | Grant Date | | Name of Plan | | Number of Securities Underlying Restricted Stock Units (#) | | Grant Date Fair Value of Stock Awards ($)(1) |
| Vladimir Shmunis | | 11/22/2021 | | 2013 Plan | | 930 | | 201,224 |
| | 8/20/2021 | | 2013 Plan | | 790 | | 198,195 |
| | 5/17/2021 | | 2013 Plan | | 703 | | 165,578 |
| | 5/1/2021 | | 2013 Plan | | 2,178 | | 685,634 |
| | 5/1/2021 | | 2013 Plan | | 56,396 | | 17,753,461 |
| | 2/16/2021 | | 2013 Plan | | 612 | | 267,456 |
| Anand Eswaran | | 11/15/2021 | | 2013 Plan | | 267 | | 70,787 |
| | 11/15/2021 | | 2013 Plan | | 720 | | 190,886 |
| | 8/16/2021 | | 2013 Plan | | 724 | | 177,156 |
| | 8/16/2021 | | 2013 Plan | | 578 | | 141,431 |
| | 6/15/2021 | | 2013 Plan | | 353 | | 94,297 |
| | 5/17/2021 | | 2013 Plan | | 649 | | 152,859 |
| | 5/1/2021 | | 2013 Plan | | 87,728 | | 27,616,774 |
| | 5/1/2021 | | 2013 Plan | | 56,396 | | 17,753,461 |
| | 2/16/2021 | | 2013 Plan | | 565 | | 246,916 |
| Mitesh Dhruv | | 11/15/2021 | | 2013 Plan | | 232 | | 61,508 |
| | 11/15/2021 | | 2013 Plan | | 633 | | 167,821 |
| | 8/16/2021 | | 2013 Plan | | 637 | | 155,868 |
| | 8/16/2021 | | 2013 Plan | | 501 | | 122,590 |
| | 6/15/2021 | | 2013 Plan | | 306 | | 81,742 |
| | 5/17/2021 | | 2013 Plan | | 541 | | 127,422 |
| | 5/1/2021 | | 2013 Plan | | 87,728 | | 27,616,774 |
| | 2/16/2021 | | 2013 Plan | | 471 | | 205,836 |
| John Marlow | | 11/15/2021 | | 2013 Plan | | 149 | | 39,503 |
| | 11/15/2021 | | 2013 Plan | | 432 | | 114,532 |
| | 8/16/2021 | | 2013 Plan | | 435 | | 106,440 |
| | 8/16/2021 | | 2013 Plan | | 322 | | 78,790 |
| | 6/15/2021 | | 2013 Plan | | 197 | | 52,625 |
| | 5/17/2021 | | 2013 Plan | | 352 | | 82,907 |
| | 5/1/2021 | | 2013 Plan | | 37,598 | | 11,835,850 |
| | 2/16/2021 | | 2013 Plan | | 306 | | 133,728 |
| Praful Shah | | 9/2/2021 | | 2013 Plan | | 13,995 | | 3,575,723 |
| | 8/16/2021 | | 2013 Plan | | 446 | | 109,132 |
| | 5/17/2021 | | 2013 Plan | | 313 | | 73,721 |
| | 5/1/2021 | | 2013 Plan | | 18,799 | | 5,917,925 |
| | 2/16/2021 | | 2013 Plan | | 272 | | 118,869 |
(1)The amounts in the timing“Grant Date Fair Value of purchase ordersStock Awards” column represent the grant date fair market value of RSUs granted in fiscal 2021 and delivery dates thatcalculated in accordance with ASC Topic 718. Assumptions underlying the valuations are not within our control. Excess inventory levels would subject usset forth in footnote 1 to the riskSummary Compensation Table above.
Outstanding Equity Awards at Fiscal Year-End
The following table presents information concerning equity awards held by our named executive officers at the end of inventory may negatively affect relations with customers. For instance, our customers rely upon our ability to meet committed delivery dates, and any disruption infiscal 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Option Awards | | Stock Awards |
| | Number of Securities Underlying Unexercised Options (#) | | Option Exercise Price ($) | | Option Expiration Date | | Number of Shares or Units of Stock that Have Not Vested (#) | | Market Value of Shares or Units of Stock that Have Not Vested ($)(1) |
| Name | | Grant Date | Exercisable | | Unexercisable | | | | |
| Vladimir Shmunis | | | 4/2/2018 | — | | | — | | | — | | | — | | | 6,572 (3) | | 1,231,264 | |
| | | 4/24/2019 | — | | | — | | | — | | | — | | | 22,376 (4) | | 4,192,144 | |
| | | 4/1/2020 | — | | | — | | | — | | | — | | | 46,579 (5) | | 8,726,576 | |
| | | 5/1/2021 | — | | | — | | | — | | | — | | | 1,089 (6) | | 204,024 | |
| | | 5/1/2021 | — | | | — | | | — | | | — | | | 45,822 (7) | | 8,584,752 | |
| Anand Eswaran (8) | | | | — | | | — | | | — | | | — | | | — | | | — | |
| Mitesh Dhruv (9) | | | | — | | | — | | | — | | | — | | | — | | | — | |
| John Marlow | | | 3/2/2012 | 1,131 (2) | | — | | | 2.73 | | | 3/2/2022 | | — | | | — | |
| | | 6/12/2013 | 9,356 (2) | | — | | | 10.42 | | | 6/12/2023 | | — | | | — | |
| | | 4/2/2018 | — | | | — | | | — | | | — | | | 1,608 (10) | | 301,259 | |
| | | 4/24/2019 | — | | | — | | | — | | | — | | | 5,532 (11) | | 1,036,420 | |
| | | 4/1/2020 | — | | | — | | | — | | | — | | | 11,645 (12) | | 2,181,691 | |
| | | 5/1/2021 | — | | | — | | | — | | | — | | | 30,549 (13) | | 5,723,355 | |
| Praful Shah (14) | | | 9/2/2021 | — | | | — | | | — | | | — | | | 13,995 (15) | | 2,621,963 | |
(1)This amount reflects the supplyfair market value of our subscriptions could result in losscommon stock of customers or harm to our ability to attract new customers. Any reduction or interruption in the ability of our vendors to supply our customers with vendor-supplied phones could cause us to lose revenue, damage our customer relationships and harm our reputation in the marketplace. Any of these factors could have a material adverse effect on our business, financial condition or results of operations.
We currently depend on three phone device suppliers and two fulfillment agents to configure and deliver the phones that we sell and any delay or interruption in manufacturing, configuring and delivering by these third parties would result in delayed or reduced shipments to our customers and may harm our business.
We rely on three suppliers to provide phones that we offer for sale to our customers that use our subscriptions, and we rely on two fulfillment agents to configure and deliver the phones that we sell to our customers. Accordingly, we could be adversely affected if such third parties fail to maintain competitive phones or configuration services or fail to continue to make them available on attractive terms, or at all.
If our fulfillment agents are unable to deliver phones of acceptable quality, or if there is a reduction or interruption in their ability to supply the phones in a timely manner, our ability to bring services to market, the reliability of our subscriptions and our relationships with customers or our overall reputation in the marketplace could suffer, which could cause us to lose revenue. We expect that it could take several months to effectively transition to new third-party manufacturers or fulfillment agents.
If our vendor-supplied phones are not able to interoperate effectively with our own back-end servers and systems, our customers may not be able to use our subscriptions, which could harm our business, financial condition and results of operations.
Phones must interoperate with our back-end servers and systems, which contain complex specifications and utilize multiple protocol standards and software applications. Currently, the phones used by our customers are manufactured by only three third-party providers. If any of these providers changes the operation of their phones, we will be required to undertake development and testing efforts to ensure that the new phones interoperate with our system. In addition, we must be successful in integrating our solutions with strategic partners' devices in order to market and sell these solutions. These efforts may require significant capital and employee resources, and we may not accomplish these development efforts quickly or cost-effectively, if at all. If our vendor-supplied phones do not interoperate effectively with our system, our customers’ ability to use our subscriptions could be delayed or orders for our subscriptions could be canceled, which would harm our business, financial condition, and results of operations.
We may require additional capital to pursue our business objectives and to respond to business opportunities, challenges or unforeseen circumstances. If capital is not available to us, our business, results of operations, and financial condition may be adversely affected.
We intend to continue to make expenditures and investments to support the growth of our business and may require additional capital to pursue our business objectives and respond to business opportunities, challenges, or unforeseen circumstances, including the need to develop new solutions or enhance our existing solutions, enhance our operating infrastructure, and acquire complementary businesses and technologies. Accordingly, we may need to engage in equity or debt financings to secure additional funds. However, additional funds may not be available when we need them on terms that are acceptable to us, or at all. Any debt financing that we secure in the future could involve restrictive covenants, which may make it more difficult for us to obtain additional capital and to pursue business opportunities. In addition, the restrictive covenants in credit facilities we may secure in the future may restrict us from being able to conduct our operations in a manner required for our business and may restrict our growth, which could have an adverse effect on our business, financial condition, or results of operations.
We cannot assure you that we will be able to comply with any such restrictive covenants. In the event that we are unable to comply with these covenants in the future, we would seek an amendment or waiver of the covenants. We cannot assure you that any such waiver or amendment would be granted. In such event, we may be required to repay any or all of our existing borrowings, and we cannot assure you that we will be able to borrow under our existing credit agreements, or obtain alternative funding arrangements on commercially reasonable terms, or at all.
In addition, volatility in the credit markets may have an adverse effect on our ability to obtain debt financing. The conversion of our 0% convertible senior notes due 2023 (the “Notes”) and any future issuances of other equity or any future issuances of equity or convertible debt securities could result in significant dilution to our existing stockholders, and any new equity securities we issue could have rights, preferences, and privileges superior to those of holders of our Class A Common Stock. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to pursue our business objectives and to respond to business opportunities, challenges, or unforeseen circumstances could be significantly limited, and our business, results of operations, financial condition and prospects could be materially and adversely affected.
If our internal control over financial reporting is not effective, it may adversely affect investor confidence in our company.
Pursuant to Section 404 of the Sarbanes-Oxley Act, our independent registered public accounting firm, KPMG LLP, is required to and has issued an attestation report$187.35 per share as of December 31, 2019. While management concluded internal control over financial reporting was at a reasonable assurance level as of December 31, 2019, there can be no assurance that material weaknesses will not be identified2021, multiplied by the amount shown in the future. A “material weakness”column for Number of Shares or Units of Stock That Have Not Vested.
(2)This option award is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. During the evaluationfully vested and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal controls are effective. As a result, we may need to undertake various actions, such as implementing new internal controls and procedures and hiring accounting or internal audit staff. Our remediation efforts may not enable us to avoid a material weakness in the future.exercisable.
If our independent registered public accounting firm is unable to express an opinion on the effectiveness of our internal controls, we could lose investor confidence in the accuracy and completeness of our financial reports, which could cause the price of our Class A Common Stocks to decline, and we may be(3)The shares underlying this RSU award vest, subject to investigation or sanctions by the Securities and Exchange Commission (the “SEC”).
The nature of our business requires the application of complex revenue and expense recognition rules and the current legislative and regulatory environment affecting generally accepted accounting principles is uncertain. Significant changesMr. Shmunis’s continued role as a service provider to us, in current principles could affect our financial statements going forward and changes in financial accounting standards or practices may cause adverse, unexpected financial reporting fluctuations and harm our operating results.
The accounting rules and regulations that we must comply with are complex and subject to interpretation by the Financial Accounting Standards Board (the “FASB”), the SEC and various bodies formed to promulgate and interpret appropriate accounting principles. Recent actions and public comments from the FASB and the SEC have focused on the integrity of financial reporting and internal controls. In addition, many companies’ accounting policies are being subject to heightened scrutiny by regulators and the public. Further, the accounting rules and regulations are continually changing in ways that could materially impact our financial statements.
We cannot predict the impact of future changes to accounting principles or our accounting policies on our financial statements going forward, which could have a significant effect on our reported financial results and could affect the reporting of transactions completed before the announcement16 equal quarterly installments commencing May 20, 2018. 100% of the change. In addition, if we were to change our critical accounting estimates, including those related to the recognition of subscription revenue and other revenue sources, our operating results could be significantly affected.
Our corporate headquarters, one of our data centers and co-location facilities, our third-party customer service and support facilities, and a research and development facility are located near known earthquake fault zones, and the occurrence of an earthquake, tsunami, or other catastrophic disaster could damage our facilities or the facilities of our contractors, which could cause us to curtail our operations.
Our corporate headquarters and many of our data centers, co-location and research and development facilities, and third-party customer service call centers are located in California, Florida, and several countries in Asia, including the Philippines and Australia. All of these locations are near known earthquake fault zones, which are vulnerable to damage from earthquakes and
tsunamis, or are in areas subject to hurricanes. We and our contractors are also vulnerable to other types of disasters, such as power loss, fire, floods, pandemics, such as the recent outbreak of coronavirus in China and other parts of the world, cyber-attack, war, political unrest, and terrorist attacks and similar events that are beyond our control. If any disasters were to occur, our ability to operate our business could be seriously impaired, and we may endure system interruptions, reputational harm, loss of intellectual property, delays in our subscriptions development, lengthy interruptions in our services, breaches of data security, and loss of critical data, all of which could harm our future results of operations. In addition, we do not carry earthquake insurance and we may not have adequate insurance to cover our losses resulting from other disasters or other similar significant business interruptions. Any significant losses that are not recoverable under our insurance policies could seriously impair our business and financial condition.
Risks Related to Regulatory Matters
Our subscriptionsshares underlying this RSU award are subject to regulation, and future legislative or regulatory actions could adversely affect our business and expose us to liability in the U.S. and internationally.
Federal Regulation
Our business is regulated by the FCC. As a communications services provider, we are subject to existing or potential FCC regulations relating to privacy, disability access, porting of numbers, Federal Universal Service Fund (“USF”) contributions, Enhanced 911 (“E-911”), outage reporting, call authentication, and other requirements and regulations. FCC classification of our Internet voice communications services as telecommunications services could result in additional federal and state regulatory obligations. If we do not comply with FCC rules and regulations, we could be subject to FCC enforcement actions, fines, loss of licenses, and possibly restrictions on our ability to operate or offer certain of our subscriptions. Any enforcement action by the FCC, which may be a public process, would hurt our reputation in the industry, possibly impair our ability to sell our subscriptions to customers and could have a materially adverse impact on our revenues.
Through RCLEC, we also provide competitive local exchange carrier (“CLEC”) services which are regulated by the FCC as traditional telecommunications services. Our CLEC services depend on certain provisions of the Telecommunications Act of 1996 that require incumbent local exchange carriers (“ILECs”) to provide us facilities and services that are necessary to provide our services. Over the past several years, the FCC has reduced or eliminated a number of regulations governing ILECs’ wholesale offerings. If ILECs were no longer required by law to provide such services to us, or ceased to provide these services at reasonable rates, terms and conditions, our business could be adversely affected and our cost of providing CLEC services could increase. This could have a materially adverse impact on our results of operations and cash flows.
In addition, the federal Telephone Consumer Protection Act (“TCPA”) and FCC rules implementing the TCPA, as amended by the Junk Fax Prevention Act of 2005, prohibit sending unsolicited facsimile advertisements, subject to certain exceptions. The FCC may take enforcement action against persons or entities that send “junk faxes,” and individuals also may have a private cause of action. Although the FCC’s rules prohibiting unsolicited fax advertisements apply to those who “send” the advertisements, fax transmitters or other service providers that have a high degree of involvement in, or actual notice of, unlawful sending of junk faxes and have failed to take steps to prevent such transmissions also face liability under the FCC’s rules. We take significant steps designed to prevent our systems from being used to send unsolicited faxes on a large scale, and we do not believe that we have a high degree of involvement in, or notice of, the use of our systems to broadcast junk faxes. However, because fax transmitters and related service providers do not enjoy an absolute exemption from liability under the TCPA and related FCC rules, we could face FCC inquiry and enforcement or civil litigation, or private causes of action, if someone uses our system for such purposes. If any of these were to occur, we could be required to incur significant costs and management’s attention could be diverted. Further, if we were to be held liable for the use of our service to send unsolicited faxes or to settle any action or proceeding, any judgment, settlement, or penalties could cause a material adverse effect on our operations.
State Regulation
States currently do not regulate our Internet voice communications subscriptions, which are considered to be nomadic because they can be used from any broadband connection. However, a number of states require us to register as a Voice over Internet Protocol (“VoIP”) provider, contribute to state USF, contribute to E-911, and pay other surcharges and annual fees that fund various utility commission programs, while others are actively considering extending their public policy programs to include the subscriptions we provide. We pass USF, E-911 fees, and other surcharges through to our customers, which may result in our subscriptions becoming more expensive or require that we absorb these costs. State public utility commissions may attempt to apply state telecommunications regulations to Internet voice communications subscriptions like ours.
RCLEC services are subject to regulation by the public utility regulatory agency in those states where we provide local telecommunications services. This regulation includes the requirement to obtain a certificate of public convenience and necessity or other similar licenses prior to offering our CLEC services. We may also be required to file tariffs that describe our CLEC services
and provide rates for those services. We are also required to comply with regulations that vary by state concerning service quality, disconnection and billing requirements. State commissions also have authority to review and approve interconnection agreements between incumbent phone carriers and CLECs such as our subsidiary.
Both we and RCLEC are also subject to state consumer protection laws, as well as U.S. state or municipal sales, use, excise, gross receipts, utility user and ad valorem taxes, fees, or surcharges.
International Regulation
As we expand internationally, we may be subject to telecommunications, consumer protection, data protection, emergency call services, and other laws, regulations, taxes, and fees in the foreign countries where we offer our subscriptions. Any foreign regulations could impose substantial compliance costs on us, restrict our ability to compete, and impact our ability to expand our service offerings in certain markets. Moreover, the regulatory environment is constantly evolving and changes to the applicable regulations could impose additional compliance costs and require modifications to our technology and operations. Internationally, we currently offer our subscriptions in Canada, the U.K., Australia, and several European countries. We also offer our Global Office solution, enabling our multinational customers in the U.S., U.K., Canada, and other locations where we sell our solutions, to establish local phone solutions in various countries internationally. We may be subject to telecommunications, consumer protection, data protection, emergency call services, and other laws and regulations in additional countries as we continue to expand our Global Office solution internationally.
In addition, our international operations are potentially subject to country-specific governmental regulation and related actions that may increase our costs or impact our solution and service offerings or prevent us from offering or providing our solutions and subscriptions in certain countries. Certain of our subscriptions may be used by customers located in countries where VoIP and other forms of IP communications may be illegal or require special licensing or in countries on a U.S. embargo list. Even where our solutions are reportedly illegal or become illegal or where users are located in an embargoed country, users in those countries may be able to continue to use our solutions and subscriptions in those countries notwithstanding the illegality or embargo. We may be subject to penalties or governmental action if customers continue to use our solutions and subscriptions in countries where it is illegal to do so, and any such penalties or governmental action may be costly and may harm our business and damage our brand and reputation. We may be required to incur additional expenses to meet applicable international regulatory requirements or be required to discontinue those subscriptions if required by law or if we cannot or will not meet those requirements.
The increasing growth and popularity of Internet voice communications, video conferencing and messaging heighten the risk that governments will regulate or impose new or increased fees or taxes on these services. To the extent that the use of our subscriptions continues to grow, and our user base continues to expand, regulators may be more likely to seek to regulate or impose new or additional taxes, surcharges or fees on our subscriptions.
We process, store, and use personal information and other data, which subjects us and our customers to a variety of evolving international statutes, governmental regulation, industry standards and self-regulatory schemes, contractual obligations, and other legal obligations related to privacy and data protection, which may increase our costs, decrease adoption and use of our solutions and subscriptions, and expose us to liability.
In the course of providing our services, we collect, store, and process many types of data, including personal data. Moreover, our customers can use our subscriptions to store contact and other personal or identifying information, and to process, transmit, receive, store, and retrieve a variety of communications and messages, including information about their own customers and other contacts. Customers are able, and may be authorized under certain circumstances, to use our subscriptions to transmit, receive, and/or store personal information.
There are a number of federal, state, local, and foreign laws and regulations, as well as contractual obligations and industry standards, that provide for certain obligations and restrictions with respect to data privacy and security, and the collection, storage, retention, protection, use, processing, transmission, sharing, disclosure, and protection of personal information and other customer data. We expect that with the implementation of our Global Office solution, we may become subject to additional data privacy regulations in other countries throughout the world. The scope of these obligations and restrictions is changing, subject to differing interpretations, and may be inconsistent among countries or conflict with other rules, and their status remains uncertain. Failure to comply with obligations and restrictions related to data privacy and security in any jurisdiction in which we operate could subject us to lawsuits, fines, criminal penalties, statutory damages, consent decrees, injunctions, adverse publicity, and other losses that could harm our business.
For example, the GDPR, which came into force in May 2018, strengthened the existing data protection regulations in the EU and its provisions include increasing the maximum level of fines that EU regulators may impose for the most serious of breaches to the greater of €20 million or 4% of worldwide annual turnover. Such fines would be in addition to (i) the rights of individuals to sue for damages in respect of any data privacy breach which causes them to suffer harm and (ii) the right of individual
member states to impose additional sanctions over and above the administrative fines specified in the GDPR. Other examples include, but are not limited to, Canadian anti-spam legislation and Australia’s Spam Act 2003, as amended.
At present, we use the EU-U.S. and Swiss-U.S. Privacy Shield framework and EU Standard Contractual Clauses (“Model Clauses”) to protect data exports between the European Economic Area (the “EEA”) and U.S. The future of cross-border data flows following the U.K.’s exit from the EU on January 31, 2020 is uncertain. After the transition period, currently set to last until December 31, 2020, it may become necessary for us to implement additional data export solutions like the Model Clauses to enable the continued flow of personal data between our U.K. operations and our EU customers and affiliates. These solutions may take time and be challenging to put in place and, if not implemented promptly before or immediately following Brexit, our business may be disrupted, and we may be exposed to potential regulatory fines and civil claims. The EU-U.S. Privacy Shield and the Model Clauses are subject to ongoing legal challenges. Any of these challenges, or any future challenges, may result in a ruling that the industry-standard measures we, and other companies, have taken are insufficient. Additionally, it is possible that the EU-U.S. Privacy Shield or the Model Clauses may need to be updated by the European Commission, the Swiss Administration, and the U.S. Department of Commerce. Should any of these prove to be the case, we will need to take any necessary and additional measures to ensure compliance with EU law with respect to our transfers of personal data from the EEA to the U.S. and other non-EEA countries. If we are unable to take such measures, then we may be at risk of experiencing reluctance or refusal of European or multi-national customers to use our solutions and incurring regulatory penalties, which may have an adverse effect on our business.
In the United States, there are numerous federal and state laws governing the privacy and security of personal information. In particular, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) establishes privacy and security standards that limit the use and disclosure of individually identifiable health information and requires the implementation of administrative, physical, and technical safeguards to protect the privacy of protected health information and ensure the confidentiality, integrity, and availability of electronic protected health information by certain institutions. We act as a “Business Associate” through our relationships with certain customers and are thus directly subject to certain provisions of HIPAA. In addition, if we are unable to protect the privacy and security of protected health information, we could be found to have breached our contracts with customers with whom we have a Business Associate relationship. Additionally, we are subject to FCC regulations imposing obligations related to our use and disclosure of certain data related our interconnected VoIP service. If we experience a data security incident, we may be required by state law or FCC regulations to notify our customers and/or law enforcement. We may also be subject to Federal Trade Commission (“FTC”) enforcement actions if the FTC has reason to believe we have engaged in unfair or deceptive privacy or data security practices.
Noncompliance with laws and regulations relating to privacy and security of personal information, including HIPAA, or with contractual obligations under any Business Associate agreement may lead to significant fines, civil and criminal penalties, or liabilities. The U.S. Department of Health and Human Services (“HHS”) audits the compliance of Business Associates and enforces HIPAA privacy and security standards. HHS enforcement activity has become more significant over the last few years and HHS has signaled its intent to continue this trend. Violation of the FCC’s privacy rules can result in large monetary forfeitures and injunctive relief. The FTC has broad authority to seek monetary redress for affected consumers and injunctive relief. In addition to federal regulators, state attorneys general (and, in some states, individual residents) are authorized to bring civil actions seeking either injunctions or damages to the extent violations implicate the privacy of state residents. Class action lawsuits are commonaccelerated vesting in the event of termination of employment under certain circumstances in connection with a data breach affecting financial or other formschange of sensitive information.control of the Company.
Additionally, California has enacted(4)The shares underlying this RSU award vest, subject to Mr. Shmunis’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2019. 100% of the California Consumer Privacy Act (“CCPA”), which came into effect on January 1, 2020. Pursuantshares underlying this RSU award are subject to the CCPA, we are required, among other things, to make certain enhanced disclosures related to California residents regarding our use or disclosure of their personal information, allow California residents to opt-out of certain uses and disclosures of their personal information without penalty, provide Californians with other choices related to personal data in our possession, and obtain opt-in consent before engaging in certain uses of personal information relating to Californians under the age of 16. The California Attorney General may seek substantial monetary penalties and injunctive reliefaccelerated vesting in the event of our non-compliancetermination of employment under certain circumstances in connection with a change of control of the CCPA. Company.
(5)The CCPA also allows for private lawsuits from Californiansshares underlying this RSU award vest, subject to Mr. Shmunis’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2020. 100% of the shares underlying this RSU award are subject to accelerated vesting in the event of termination of employment under certain data breaches. Aspects of the CCPA remain uncertain, and we may be required to make modifications to our policies or practices in order to comply.
As Internet commerce and communication technologies continue to evolve, thereby increasing online service providers’ and network users’ capacity to collect, store, retain, protect, use, process, and transmit large volumes of personal information, increasingly restrictive regulation by federal, state, or foreign agencies becomes more likely.
While we try to comply with all applicable data protection laws, regulations, standards, and codes of conduct, as well as our own posted privacy policies and contractual commitments to the extent possible, any actual or alleged failure by us to comply with any of the foregoing or to protect our users’ privacy and data, including as a result of our systems being compromised by hacking or other malicious or surreptitious activity, could result in a loss of user confidence in our subscriptions and ultimately in a loss of users, which could materially and adversely affect our business.
Regulation of personal information is evolving, and new laws could further impact how we handle personal information or could require us to incur additional compliance costs, either of which could have an adverse impact on our operations. Further, our actual compliance, our customers’ perception of our compliance, costs of compliance with such regulations, and obligations and customer concerns regarding their own compliance obligations (whether factual or in error) may limit the use and adoption of our subscriptions and reduce overall demand. Privacy-related concerns, including the inability or impracticality of providing advance notice to customers of privacy issues related to the use of our subscriptions, may cause our customers’ customers to resist providing the personal data necessary to allow our customers to use our subscriptions effectively. Even the perception of privacy-related concerns, whether or not valid, may inhibit market adoption of our subscriptions in certain industries.
Additionally, due to the nature of our service, we are unable to maintain complete control over data security or the implementation of measures that reduce the risk of a data security incident. For example, our customers may accidentally disclose their passwords or store them on a mobile device that is lost or stolen, creating the perception that our systems are not secure against third-party access. Additionally, our third-party contractors in the Philippines, Russia, Ukraine, India, and Poland may have access to customer data. If these or other third-party vendors violate applicable laws or our policies, such violations may also put our customers’ information at risk and could in turn have a material and adverse effect on our business.
Our emergency and E-911 calling services may expose us to significant liability.
The FCC requires Internet voice communications providers, such as our company, to provide E-911 service in all geographic areas covered by the traditional wire-line E-911 network. Under the FCC’s rules, Internet voice communications providers must transmit the caller’s phone number and registered location information to the appropriate public safety answering point (“PSAP”) for the caller’s registered location. Our CLEC services are also required by the FCC and state regulators to provide E-911 service to the extent that they provide services to end users. We are also subject to similar requirements internationally.
In connection with the regulatory requirements that we provide access to emergency services dialing to our interconnected VoIP customers, we must obtain from each customer, prior to the initiation of or changes to service, the physical locations at which the service will first be used for each VoIP line. For subscriptions that can be utilized from more than one physical location, we must provide customers one or more methods of updating their physical location. Because we are not able to confirm that the service is used at the physical addresses provided by our customers, and because customers may provide an incorrect location or fail to provide updated location information, it is possible that emergency services calls may get routed to the wrong PSAP. If emergency services calls are not routed to the correct PSAP, and if the delay results in serious injury or death, we could be sued and the damages substantial. We are evaluating measures to attempt to verify and update the addresses for locations where our subscriptions are used.
In August 2019, the FCC adopted an order that will require providers of non-fixed interconnected VoIP service (service that is capable of being used from more than one location) to automatically provide with each 911 call, when technically feasible, specific address information that can be used to adequately identify the location of the caller. The requirement is scheduled to take effect on January 6, 2022. The implementation of this requirement may increase our costs and make our service more expensive, which could adversely affect our results of operations.
We could be subject to enforcement action by the FCC or international regulators for our customer lines that cannot provide access to emergency services in accordance with regulatory requirements. This enforcement action could result in significant monetary penalties and restrictions on our ability to offer non-compliant subscriptions.
In addition, customers may attempt to hold us responsible for any loss, damage, personal injury, or death suffered as a result of delayed, misrouted, or uncompleted emergency service calls or text messages, subject to any limitations on a provider’s liability provided by applicable laws, regulations and our customer agreements.
We rely on third parties to provide the majority of our customer service and support representatives and to fulfill various aspects of our E-911 service. If these third parties do not provide our customers with reliable, high-quality service, our reputation will be harmed, and we may lose customers.
We offer customer support through both our online account management website and our toll-free customer support number in multiple languages. Our customer support is currently provided via a third-party provider located in the Philippines, as well as our employees in the U.S. Our third-party providers generally provide customer service and support to our customers without identifying themselves as independent parties. The ability to support our customers may be disrupted by natural disasters, inclement weather conditions, civil unrest, strikes, and other adverse events in the Philippines. Furthermore, as we expand our operations internationally, we may need to make significant expenditures and investments in our customer service and support to adequately address the complex needs of international customers, such as support in additional foreign languages. We also use third parties to deliver onsite professional services to our customers in deploying our solutions. If these vendors do not deliver timely and high-quality services to our customers, our reputation could be damaged, and we could lose customers. In addition,
third party professional services vendors may not be available when needed, which would adversely impact our ability to deliver on our customer commitments.
We also contract with third parties to provide emergency services calls in the United States, Canada, the U.K., and other jurisdictions in which we provide access to emergency services dialing, including assistance in routing emergency calls and terminating emergency services calls. Our domestic providers operate a national call center that is available 24 hours a day, seven days a week, to receive certain emergency calls and maintain PSAP databases for the purpose of deploying and operating E-911 services. We rely on providers for similar functions in other jurisdictions in which we provide access to emergency services dialing. On mobile devices, we rely on the underlying cellular or wireless carrier to provide emergency services dialing. Interruptions in service from our vendors could cause failures in our customers’ access to E-911/999/112 services and expose us to liability and damage our reputation.
If any of these third parties do not provide reliable, high-quality service, our reputation and our business will be harmed. In addition, industry consolidation among providers of services to us may impact our ability to obtain these services or increase our costs for these services.
Risks Related to Intellectual Property
Accusations of infringement of third-party intellectual property rights could materially and adversely affect our business.
There has been substantial litigation in the areas in which we operate regarding intellectual property rights. For instance, we have recently and in the past been sued by third parties claiming infringement of their intellectual property rights and we may be sued for infringement from time to time in the future. Also, in some instances, we have agreed to indemnify our customers, resellers, and carriers for expenses and liability resulting from claimed intellectual property infringement by our solutions. From time to time, we have received requests for indemnificationcircumstances in connection with allegationsa change of intellectual property infringement and we may choose, or be required,control of the Company.
(6)The shares underlying this RSU award vest, subject to assume the defense and/or reimburse our customers and/or resellers and carriers for their expenses, settlement and/or liability. In the past, we have settled infringement litigation brought against us; however, we cannot assure you that we will be able to settle any future claims or, if we are able to settle any such claims, that the settlement will be on terms favorable to us. Our broad range of technology may increase the likelihood that third parties will claim that we, or our customers and/or resellers, and carriers, infringe their intellectual property rights.
We have in the past received, and may in the future receive, notices of claims of infringement, misappropriation or misuse of other parties’ proprietary rights. Furthermore, regardless of their merits, accusations and lawsuits like these, whether against us or our customers, resellers, and carriers, may require significant time and expense to defend, may negatively affect customer relationships, may divert management’s attention away from other aspects of our operations and, upon resolution, may haveMr. Shmunis’s continued role as a material adverse effect on our business, results of operations, financial condition, and cash flows.
Certain technology necessary for us to provide our subscriptions may, in fact, be patented by other parties either now or in the future. If such technology were validly patented by another person, we would have to negotiate a license for the use of that technology. We may not be able to negotiate such a license at a price that is acceptableservice provider to us, or at all. The existencein 4 equal quarterly installments commencing August 20, 2021. 100% of such a patent, or our inability to negotiate a license for any such technology on acceptable terms, could force us to cease using the technology and cease offering subscriptions incorporating the technology, which could materially and adversely affect our business and results of operations.
If we, or any of our solutions, were found to be infringing on the intellectual property rights of any third party, we could beshares underlying this RSU award are subject to liability for such infringement, which could be material. We could also be prohibited from using or selling certain subscriptions, prohibited from using certain processes, or required to redesign certain subscriptions, each of which could have a material adverse effect on our business and results of operations.
These and other outcomes may:
result in the loss of a substantial number of existing customers or prohibit the acquisition of new customers;
cause us to pay license fees for intellectual property we are deemed to have infringed;
cause us to incur costs and devote valuable technical resources to redesigning our subscriptions;
cause our cost of revenues to increase;
cause us to accelerate expenditures to preserve existing revenues;
cause existing or new vendors to require pre-payments or letters of credit;
materially and adversely affect our brand in the marketplace and cause a substantial loss of goodwill;
cause us to change our business methods or subscriptions;
require us to cease certain business operations or offering certain subscriptions or features; and
lead to our bankruptcy or liquidation.
Our limited ability to protect our intellectual property rights could materially and adversely affect our business.
We rely, in part, on patent, trademark, copyright, and trade secret law to protect our intellectual property in the U.S. and abroad. We seek to protect our technology, software, documentation and other information under trade secret and copyright law, which afford only limited protection. For example, we typically enter into confidentiality agreements with our employees, consultants, third-party contractors, customers, and vendors in an effort to control access to, use of, and distribution of our technology, software, documentation, and other information. These agreements may not effectively prevent unauthorized use or disclosure of confidential information and may not provide an adequate remedyaccelerated vesting in the event of such unauthorized use or disclosure, and it may be possible for a third party to legally reverse engineer, copy, or otherwise obtain and use our technology without authorization. In addition, improper disclosuretermination of trade secret information by our current or former employees, consultants, third-party contractors, customers, or vendors to the public or others who could make use of the trade secret information would likely preclude that information from being protected as a trade secret.
We also rely, in part, on patent law to protect our intellectual property in the U.S. and internationally. Our intellectual property portfolio includes over 200 issued patents, which expire between 2022 and 2038. We also have 45 patent applications pending examination in the U.S. and 16 patent applications pending examination in foreign jurisdictions, all of which are related to U.S. applications. We cannot predict whether such pending patent applications will result in issued patents or whether any issued patents will effectively protect our intellectual property. Even if a pending patent application results in an issued patent, the patent may be circumvented or its validity may be challenged in various proceedings in United States District Court or before the U.S. Patent and Trademark Office, such as Post Grant Review or Inter Partes Review, which may require legal representation and involve substantial costs and diversion of management time and resources. In addition, we cannot assure you that every significant feature of our solutions is protected by our patents, or that we will mark our solutions with any or all patents they embody. As a result, we may be prevented from seeking injunctive relief or damages, in whole or in part for infringement of our patents.
The unlicensed use of our brand, including domain names, by third parties could harm our reputation, cause confusion among our customers and impair our ability to market our solutions and subscriptions. To that end, we have registered numerous trademarks and service marks and have applied for registration of additional trademarks and service marks and have acquired a large number of domain names in and outside the U.S. to establish and protect our brand names as part of our intellectual property strategy. If our applications receive objections or are successfully opposed by third parties, it will be difficult for us to prevent third parties from using our brand without our permission. Moreover, successful opposition to our applications might encourage third parties to make additional oppositions or commence trademark infringement proceedings against us, which could be costly and time consuming to defend against. If we are not successful in protecting our trademarks, our trademark rights may be diluted and subject to challenge or invalidation, which could materially and adversely affect our brand.
Despite our efforts to implement our intellectual property strategy, we may not be able to protect or enforce our proprietary rights in the U.S. or internationally (where effective intellectual property protection may be unavailable or limited). For example, we have entered into agreements containing confidentiality and invention assignment provisionsemployment under certain circumstances in connection with the outsourcinga change of certain software development and quality assurance activities to third-party contractors located in Russia and Ukraine. We have also entered into an agreement containing a confidentiality provision with a third-party contractor located in the Philippines, where we have outsourced a significant portion of our customer support function. We cannot assure you that agreements with these third-party contractors or their agreements with their employees and contractors will adequately protect our proprietary rights in the applicable jurisdictions and foreign countries, as their respective laws may not protect proprietary rights to the same extent as the lawscontrol of the U.S. In addition, our competitors may independently develop technologies that are similar or superiorCompany.
(7)The shares underlying this RSU award vest, subject to our technology, duplicate our technologyMr. Shmunis’s continued role as a service provider to us, in a manner that does not infringe our intellectual property rights or design around any of our patents. Furthermore, detecting and policing unauthorized use of our intellectual property is difficult and resource-intensive. Moreover, litigation may be necessary in the future to enforce our intellectual property rights, to determine the validity and scope16 equal quarterly installments commencing May 20, 2021. 100% of the proprietary rights of others, orshares underlying this RSU award are subject to defend against claims of infringement or invalidity. Such litigation, whether successful or not, could result in substantial costs and diversion of management time and resources and could have a material adverse effect on our business, financial condition, and results of operations.
Our use of open source technology could impose limitations on our ability to commercialize our subscriptions.
We use open source software in our platform on which our subscriptions operate. There is a risk that the owners of the copyrights in such software may claim that such licenses impose unanticipated conditions or restrictions on our ability to market or provide our subscriptions. If such owners prevail in such claim, we could be required to make the source code for our proprietary software (which contains our valuable trade secrets) generally available to third parties, including competitors, at no cost, to seek licenses from third parties in order to continue offering our subscriptions, to re-engineer our technology, or to discontinue offering our subscriptionsaccelerated vesting in the event re-engineering cannot be accomplishedof termination of employment under certain circumstances in connection with a change of control of the Company.
(8)Mr. Eswaran resigned from his position as President and Chief Operating Officer on December 14, 2021. In connection with his resignation, Mr. Eswaran forfeited all of his then-unvested equity awards.
(9)Mr. Dhruv resigned from his position as Chief Financial Officer on December 31, 2021. In connection with his resignation, Mr. Dhruv forfeited all of his then-unvested equity awards.
(10)The shares underlying this RSU award vest, subject to Mr. Marlow’s continued role as a timely basisservice provider to us, in 16 equal quarterly installments commencing May 20, 2018. 100% of the shares underlying this RSU award are subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(11)The shares underlying this RSU award vest, subject to Mr. Marlow’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2019. 100% of the shares underlying this RSU award are subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(12)The shares underlying this RSU award vest, subject to Mr. Marlow’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2020. 100% of the shares underlying this RSU award are subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(13)The shares underlying this RSU award vest, subject to Mr. Marlow’s continued role as a service provider to us, in 16 equal quarterly installments commencing May 20, 2021. 100% of the shares underlying this RSU award are subject to accelerated vesting in the event of termination of employment under certain circumstances in connection with a change of control of the Company.
(14)Mr. Shah resigned from his position as Chief Strategy Officer on September 14, 2021. In connection with his resignation, Mr. Shah forfeited all of his then-unvested equity awards, other than the RSU award granted on September 2, 2021.
(15)The shares underlying this RSU award vest, subject to Mr. Shah’s compliance with his obligations under the non-competition agreement, on August 20, 2022. In connection with his resignation, Mr. Shah forfeited all of his other then-unvested equity awards.
Option Exercises and Stock Vested in 2021
The following table sets forth the number of shares of common stock acquired during fiscal 2021 by our named executive officers upon the exercise of stock options and the vesting of RSU awards and the value realized upon such exercise or at all,vesting.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Option Awards | | Stock Awards |
| Name | | Number of Securities
Acquired on Exercise (#)(1) | | Value Realized
on Exercise ($)(2) | | Number of Securities
Acquired on Vesting (#)(3) | | Value Realized
on Vesting ($)(4) |
| Vladimir Shmunis | | — | | | — | | | 93,238 | | | 22,785,662 | |
| Anand Eswaran | | — | | | — | | | 62,511 | | | 16,051,753 | |
| Mitesh Dhruv | | 13,967 | | | 5,224,511 | | | 59,968 | | | 16,800,320 | |
| John Marlow | | 10,770 | | | 3,085,765 | | | 28,636 | | | 7,059,771 | |
| Praful Shah | | 163,622 | | | 44,371,320 | | | 15,418 | | | 4,418,768 | |
(1) Reflects the aggregate number of shares of Class A common stock underlying the stock options that were exercised during fiscal 2021.
(2) Calculated by multiplying (i) the difference between (x) the sale price for shares of Class A common stock sold concurrently with the exercise of an option, and if not, the fair market value of Class A common stock on the option exercise date, which was determined using the closing price on the NYSE of a share of Class A common stock on the option exercise date, and (y) the exercise price of the option, by (ii) the number of shares of Class A common stock acquired upon exercise.
(3) Reflects the aggregate number of shares of common stock underlying the RSU awards that vested in fiscal 2021.
(4) Calculated based by multiplying (i) the fair market value of Class A common stock on the vesting date, which was determined using the closing price on the NYSE of a share of Class A common stock on vesting date, by (ii) the number of shares of Class A common stock acquired upon vesting.
Pension Benefits
Aside from our 401(k) plan, we do not maintain any pension plan or arrangement under which our named executive officers are entitled to participate or receive post-retirement benefits.
Non-Qualified Deferred Compensation
We do not maintain any nonqualified deferred compensation plans or arrangements under which our named executive officers are entitled to participate.
Hedging Policy
Pursuant to our Insider Trading Policy, our directors, officers (as defined in Rule 16a-1(f) of the Exchange Act) and other employees subject to blackout periods or pre-clearance requirements under such policy are prohibited from engaging in transactions in publicly-traded options, such as puts and calls, and other derivative securities with respect to the Company’s securities, including hedging their ownership of Company securities or similar transactions designed to decrease the risks associated with holding Company securities. Stock options, stock appreciation rights and other securities issued pursuant to our benefit plans or other compensatory arrangements with us are not subject to this prohibition.
Potential Payments upon Termination and upon Termination in Connection with a Change of Control
Potential Payments upon Termination Apart from a Change of Control
The following table sets forth quantitative estimates of the benefits that would have accrued to each of our named executive officers pursuant to each named executive officer’s respective employment agreements, if any of which could causetheir employment had been terminated by us without “cause” or had been terminated by the named executive officer for “good reason” (as such terms are defined in each named executive officer’s respective offer letter or other employment agreement), as applicable, on December 31, 2021, in each case outside of the period beginning 60 days prior to discontinue(or in the case of Messrs. Shmunis and Eswaran, three months prior to) and ending 12 months following a “change of control” (as defined in our subscriptions, harm our reputation, resultEquity Acceleration Policy) and such termination occurred on December 31, 2021, as applicable, in customer losses or claims, increase our costs or otherwise materiallyeach case, upon such named executive officer’s signing and adversely affect our businessnot revoking a release agreement with us, if applicable.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Cash Severance ($)(1) | | Value of Accelerated Equity Awards ($)(2) | | Continuing Health Coverage ($)(3) | | Total ($) |
| Vladimir Shmunis (4) | | 700,000 | | | — | | | 22,329 | | | 722,329 | |
| Anand Eswaran (5) | | — | | | — | | | — | | | — | |
| Mitesh Dhruv (6) | | — | | | — | | | | | — | |
| John Marlow (7) | | 93,750 | | | — | | | — | | | 93,750 | |
| Praful Shah (8) | | — | | | — | | | — | | | — | |
(1)Represents the portion of each named executive officer’s 2021 base salary to be paid to such named executive officer upon a termination apart from a change of control.
(2)For each named executive officer, the estimated value of accelerated equity awards was calculated by adding (i) the product of (x) the amount of unvested RSUs subject to acceleration held by the applicable named executive officer and results of operations.
Risks Related to Our Class A Common Stock, Our Notes and Our Charter Provisions
The market(y) the closing price of our Class A common stock is likelyon December 31, 2021 (which was $183.75) and (ii) the product of (x) the amount of unvested stock options subject to be volatileacceleration held by the applicable named executive officer and could decline.
The stock market in general, and(y) the market for SaaS and other technology-related stocks in particular, has been highly volatile. As a result,difference between (a) the market price and trading volume for our Class A Common Stock has been and may continue to be highly volatile, and investors in our Class A Common Stock may experience a decrease in the value of their shares, including decreases unrelated to our operating performance or prospects. Factors that could cause the marketexercise price of our Class A Common Stock to fluctuate significantly include:
our operatingthe stock option and financial performance and prospects and(b) the performance of other similar companies;
our quarterly or annual earnings or those of other companies in our industry;
conditions that impact demand for our subscriptions;
the public’s reaction to our press releases, financial guidance, and other public announcements, and filings with the SEC;
changes in earnings estimates or recommendations by securities or research analysts who track our Class A Common Stock;
market and industry perception of our success, or lack thereof, in pursuing our growth strategy;
strategic actions by us or our competitors, such as acquisitions or restructurings;
changes in government and other regulations;
changes in accounting standards, policies, guidance, interpretations, or principles;
arrival and departure of key personnel;
sales of common stock by us, our investors, or members of our management team; and
changes in general market, economic, and political conditions in the U.S. and global economies or financial markets, including those resulting from natural disasters, telecommunications failure, cyber-attack, changes in diplomatic or trade relationships, civil unrest in various parts of the world, acts of war, terrorist attacks, or other catastrophic events.
Any of these factors may result in large and sudden changes in the trading volume and marketclosing price of our Class A Common Stock and may prevent investors from being able to sell their shares at or above the price they paid for their shares of our Class A Common Stock. Following periods of volatility in the market price of a company’s securities, stockholders often file securities class-action lawsuits against such company. Our involvement in a class-action lawsuit could divert our senior management’s attention and, if adversely determined, could have a material and adverse effect on our business, financial condition, and results of operations.
The dual class structure of our common stock as contained in our charter documents has the effect of concentrating voting control with a limited number of stockholders that held our stock prior to our initial public offering, including our founders and our executive officers, employees and directors and their affiliates, and venture capital investors, and limiting other stockholders’ ability to influence corporate matters.
Our Class B common stock, par value $0.0001 per share (“Class B Common Stock”), has 10 votes per share, and our Class A Common Stock has one vote per share. Stockholders who hold shares of Class B Common Stock, including our founders, previous investors and our executive officers, employees and directors and their affiliates, together hold approximately 59% of the voting power of our outstanding capital stock, and our founders, including our CEO and Chairman, together hold a majority of such voting power. As a result, for the foreseeable future , our stockholders who acquired their shares prior to the completion of our initial public offering will continue to have significant influence over the management and affairs of our company and over the outcome of many matters submitted to our stockholders for approval, including the election of directors and significant corporate transactions, such as a merger, consolidation or sale of substantially all of our assets.
In addition, the holders of Class B Common Stock collectively will continue to control many matters submitted to our stockholders for approval even if their stock holdings represent less than 50% of the outstanding shares of our common stock. Because of the ten to one voting ratio between our Class B and Class A Common Stock, the holders of our Class B Common Stock collectively will continue to control a majority of the combined voting power of our common stock so long as the shares of Class B Common Stock represent at least 10% of all outstanding shares of our Class A and Class B Common Stock. This concentrated control may limit your ability to influence corporate matters for the foreseeable future, and, as a result, the market price of our Class A Common Stock could be adversely affected.
Future transfers by holders of Class B Common Stock will generally result in those shares converting to Class A Common Stock, which may have the effect, over time, of increasing the relative voting power of those holders of Class B Common Stock who retain their shares in the long term. If, for example, Mr. Shmunis retains a significant portion of his holdings of Class B Common Stock for an extended period of time, he could, in the future, control a majority of the combined voting power of our Class A and Class B Common Stock. As a board member, Mr. Shmunis owes fiduciary duties to our stockholders and must act in
good faith in a manner he reasonably believes to be in the best interests of our stockholders. As a stockholder, even a controlling stockholder, Mr. Shmunis is generally entitled to vote his shares in his own interests, which may not always be in the interests of our stockholders generally.
We have never paid cash dividends and do not anticipate paying any cash dividends on our common stock.
We currently do not plan to declare dividends on shares of our common stock in the foreseeable future and plan to, instead, retain any earnings to finance our operations and growth. Because we have never paid cash dividends and do not anticipate paying any cash dividends on our common stock in the foreseeable future, the only opportunity to achieve a return on an investor’s investment in our company will be if the market price of our Class A Common Stock appreciates and the investor sells its shares at a profit. There is no guarantee that the price of our Class A Common Stock that will prevail in the market will ever exceed the price that an investor pays.
If research analysts do not publish research or reports about our business, or if they issue unfavorable commentary or downgrade our Class A Common Stock, our stock price and trading volume may decline.
The trading market for our Class A Common Stock will depend in part on the research and reports that research analysts publish about us and our business. If we do not maintain adequate research coverage or if one or more analysts who covers us downgrades our stock or publishes inaccurate or unfavorable research about our business, the price of our Class A Common Stock may decline. If one or more of the research analysts ceases coverage of our company or fails to publish reports on us regularly, demand for our Class A Common Stock may decrease, which could cause our stock price or trading volume to decline.
We may not have the ability to raise funds necessary to settle conversions of the Notes in cash or to repurchase the Notes upon a fundamental change or pay the principal amount at maturity, and our future debt may contain limitations on our ability to pay cash upon conversion or repurchase of the Notes.
Holders of the “Notes will have the right to require us to repurchase all or a portion of their Notes upon the occurrence of a fundamental change before the maturity date at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid special interest, if any, as set forth in the indenture governing the Notes. In addition, upon conversion of the Notes, unless we elect to deliver solely shares of our Class A Common Stock to settle such conversion (other than paying cash in lieu of delivering any fractional share), we will be required to make cash payments in respect of the Notes being converted, as set forth in the indenture governing the Notes. Moreover, we will be required to repay the Notes in cash at their maturity unless earlier converted, redeemed or repurchased. However, we may not have enough available cash on hand or be able to obtain financing at the time we are required to make repurchases of the Notes surrendered therefor or pay cash with respect to the Notes being converted or at their maturity.
In addition, our ability to repurchase the Notes or to pay cash upon conversions of the Notes or at their maturity may be limited by law, regulatory authority, or agreements governing our future indebtedness. Our failure to repurchase the Notes at a time when the repurchase is required by the indenture governing the Notes or to pay cash upon conversions of Notes or at their maturity as required by the indenture governing the Notes would constitute a default under such indenture. Moreover, the occurrence of a fundamental change under the indenture governing the Notes could constitute an event of default under any such agreement. A default under such indenture, or the fundamental change itself, could also lead to a default under agreements governing our future indebtedness. If the repayment of the related indebtedness were to be accelerated after any applicable notice or grace periods, we may not have sufficient funds to repay the indebtedness and repurchase the Notes or make cash payments upon conversions thereof.
The conditional conversion feature of the Notes, if triggered, may adversely affect our financial condition and operating results.
In the event the conditional conversion feature of the Notes is triggered, holders of the Notes will be entitled under the Indenture to convert their Notes at any time during specified periods at their option. If one or more holders elect to convert their Notes, unless we elect to satisfy our conversion obligation by delivering solely shares of our Class A common stock (other than paying cash in lieu of delivering any fractional share), we would be required to settle a portion or all of our conversion obligation in cash, which could adversely affect our liquidity. In addition, in certain circumstances, such as conversion by holders or redemption, we could be required under applicable accounting rules to reclassify all or a portion of the outstanding principal of the Notes as a current rather than long-term liability.on December 31, 2021 (which was $183.75).
The capped call transactions may affect(3)Represents the value of all monthly COBRA premium payments to be paid to such named executive officer upon a termination apart from a change of control.
(4)Mr. Shmunis will receive (i) 12 months of his 2021 base salary and (ii) 12 months of continuing COBRA premium payments in accordance with his executive employment letter.
(5)Mr. Eswaran resigned from his position as President and Chief Operating Officer on December 14, 2021.
(6)Mr. Dhruv resigned from his position as Chief Financial Officer on December 31, 2021.
(7)Mr. Marlow will receive three months of his 2021 base salary in accordance with his offer letter.
(8)Mr. Shah resigned from his position as Chief Strategy Officer on September 14, 2021.
Potential Payments upon Termination in Connection with a Change of Control
The following table sets forth quantitative estimates of the Notesbenefits that would have accrued to each of our named executive officers pursuant to each named executive officer’s respective employment agreements and Equity Acceleration Policy, if any of their employment had been terminated by us without “cause” or had been terminated by the named executive officer for “good reason” (as such terms are defined in each named executive officer’s respective offer letter or other employment agreement), in each case within 60 days prior to (or in the case of Messrs. Shmunis and Eswaran, three months prior to) or 12 months following a “change of control” (as defined in our Class A Common StockEquity Acceleration Policy) and we aresuch termination occurred on December 31, 2021, as applicable, in each case, upon such named executive officer’s signing and not revoking a release agreement with us, if applicable.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Cash Severance ($)(1) | | Value of Accelerated Equity Awards ($)(2) | | Continuing Health Coverage ($)(3) | | Total ($) |
| Vladimir Shmunis (4) | | 2,100,000 | | | 22,938,759 | | 33,494 | | | |
| Anand Eswaran (5) | | — | | | — | | | — | | | — | |
| Mitesh Dhruv (6) | | — | | | — | | | — | | | — | |
| John Marlow (7) | | 93,750 | | | 9,242,725 | | — | | | |
| Praful Shah (8) | | — | | | — | | | — | | | — | |
(1) Represents the portion of each named executive officer’s (a) 2021 base salary and (b) 2021 target bonus, as applicable to be paid to such named executive officer upon a termination in connection with a change of control.
(2) For each named executive officer, the estimated value of accelerated equity awards was calculated by adding (i) the product of (x) the amount of unvested RSUs subject to counterparty risk.
In connection withacceleration held by the issuance ofapplicable named executive officer and (y) the Notes, we entered into capped call transactions with the counterparties. The capped call transactions cover, subject to customary adjustments, the number of shares of our Class A Common Stock initially underlying the Notes. The capped call transactions are expected to offset the potential dilution as a result of conversion of the Notes.
In connection with establishing their initial hedge of the capped call transactions, the counterparties or their respective affiliates entered into various derivative transactions with respect to our Class A Common Stock concurrently with or shortly after the pricing of the Notes, including with certain investors in the Notes.
In addition, the counterparties or their respective affiliates may modify their hedge positions by entering into or unwinding various derivatives with respect to our Class A Common Stock and/or purchasing or selling our Class A Common Stock or other securities of ours in secondary market transactions at any time prior to the maturity of the Notes (and are likely to do so on each exercise date of the capped call transactions). This activity could also cause or prevent an increase or a decrease in the marketclosing price of our Class A Common Stock.
We do not make any representation or prediction ascommon stock on December 31, 2021 (which was $183.75) and (ii) the product of (x) the amount of unvested stock options subject to acceleration held by the direction or magnitude of any potential effect thatapplicable named executive officer and (y) the transactions described above may have ondifference between (a) the exercise price of the Notes orstock option and (b) the shares of our Class A Common Stock. In addition, we do not make any representation that these transactions will not be discontinued without notice.
In addition, the counterparties to the capped call transactions are financial institutions and we will be subject to the risk that one or more of the counterparties may default or otherwise fail to perform, or may exercise certain rights to terminate, their obligations under the capped call transactions. If a counterparty to one or more capped call transaction becomes subject to insolvency proceedings, we will become an unsecured creditor in those proceedings with a claim equal to our exposure at the time under such transaction. Our exposure will depend on many factors but, generally, it will increase if the market price or the volatility of our Class A Common Stock increases. Upon a default or other failure to perform, or a termination of obligations, by a counterparty, we may suffer adverse tax consequences and more dilution than we currently anticipate with respect to our Class A Common Stock. We can provide no assurances as to the financial stability or viability of the counterparties.
Anti-takeover provisions in our restated certificate of incorporation and bylaws and under Delaware corporate law could make an acquisition of us more difficult, limit attempts by our stockholders to replace or remove our current management and limit the marketclosing price of our Class A Common Stock.common stock on December 31, 2021 (which was $183.75).
Provisions(3) Represents the value of all monthly COBRA premium payments to be paid to such named executive officer upon a termination in our certificate of incorporation and bylaws may have the effect of delaying or preventingconnection with a change of control or changescontrol.
(4) Mr. Shmunis will receive (i) 18 months of his 2021 base salary plus 150% his 2021 target bonus, (ii) 100% acceleration of his outstanding equity awards and (iii) 18 months of continuing COBRA premium payments in our management. Our certificateaccordance with his executive employment letter.
(5) Mr. Eswaran resigned from his position as President and Chief Operating Officer on December 14, 2021.
(6) Mr. Dhruv resigned from his position as Chief Financial Officer on December 31, 2021.
(7) Mr. Marlow will receive (i) in accordance with his offer letter, three months of incorporationhis 2021 base salary and bylaws include provisions that:(ii) 100% acceleration of his outstanding equity awards pursuant to the Equity Acceleration Policy.
authorize our board(8) Mr. Shah resigned from his position as Chief Strategy Officer on September 14, 2021.
CEO Pay Ratio
Under SEC rules, we are required to provide information regarding the relationship between the total annual compensation of directors to issue, without further action by the stockholders, up to 100,000,000 shares of undesignated preferred stock;
require that, once our outstanding shares of Class B Common Stock represent less than a majority of the combined voting power of our common stock, any action to be taken by our stockholders be effected at a duly called annual or special meeting and not by written consent; specify that special meetings of our stockholders can be called only by our board of directors, the Chairman of our board of directors, orMr. Shmunis, our Chief Executive Officer;Officer, and the total annual compensation of our median employee (other than Mr. Shmunis). For our last completed fiscal year, which ended December 31, 2021:
establish an advance notice procedure•The median of the total annual compensation of all employees (other than Mr. Shmunis) of ours (including our consolidated subsidiaries) was $163,350.
•Mr. Shmunis’s total annual compensation, as reported in the Summary Compensation Table included in this Form 10-K/A, was $19,221,811.
•Based on the above, for stockholder proposalsfiscal 2021, the ratio of Mr. Shmunis’s total annual compensation to the median of the total annual compensation of all employees was 118 to 1.
This pay ratio is a reasonable estimate calculated in a manner consistent with Item 402(u) of Regulation S-K under the Securities Act and based upon our reasonable judgment and assumptions. The SEC rules do not specify a single methodology for identification of the median employee or calculation of the pay ratio, and other companies may use assumptions and methodologies that are different from those used by us in calculating their pay ratio. Accordingly, the pay ratio disclosed by other companies may not be brought before an annual meeting, including proposed nominations of persons for electioncomparable to our boardpay ratio as disclosed above.
The methodology we used to calculate the pay ratio is described below.
•We determined the median of directors;the total annual compensation of all of our employees as of December 31, 2021. As of December 31, 2021, we (including our consolidated subsidiaries) had approximately 3,915 full-time, part-time and temporary employees, approximately 2,489 out of the 3,915 (or approximately 63.6%) are U.S. employees, and approximately 1,426 out of the 3,916 (or approximately 36.4%) are located outside of the United States.
prohibit cumulative voting
•We then compared the sum of (i) the total annual cash compensation earned by each of these employees for fiscal 2021 as reflected in our payroll records plus (ii) the fair value of equity awards (as determined in accordance with footnote 1 of the fiscal Summary Compensation Table) granted to these employees in fiscal 2021, to determine the median employee, without annualizing the compensation of any employees who started their employment with us in fiscal 2021 but did not work for us or our consolidated subsidiaries for the entire year. Compensation paid in foreign currency was converted to U.S. dollars using currency conversion ratios in effect as of January 1, 2022. In determining the median total compensation of all of these employees, we did not make any cost of living adjustments to the wages paid to any employee outside of the U.S.
•Once we identified our median employee, we estimated the median employee’s total annual compensation in accordance with the requirements of Item 402(c)(2)(x) of Regulation S-K, yielding the median total annual compensation disclosed above. With respect to Mr. Shmunis’s total annual compensation, we used the amount reported in the election of directors;
provide that our directors may be removed only for cause, subject to such amendment as provided in our current proxy statement;
provide that vacancies on our board of directors may be filled only by a majority of directors then in office, even though less than a quorum;
require the approval“Total” column of our boardfiscal Summary Compensation Table included in this Form 10-K/A.
Item 12. Security Ownership of directors or the holders of a supermajority of our outstanding shares of capital stock to amend our bylawsCertain Beneficial Owners and Management and Related Stockholder Matters
The following table sets forth certain provisions of our certificate of incorporation; and
reflect two classes of common stock, as discussed above.
These provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of directors, which is responsible for appointing the members of our management. In addition, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation Law, which generally prohibits a Delaware corporation from engaging in any of a broad range of business combinations with any “interested” stockholder for a period of three years following the date on which the stockholder became an “interested” stockholder.
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ITEM 1B. | UNRESOLVED STAFF COMMENTS |
None.
Our corporate headquarters is located in Belmont, California, and consists ofapproximately 110,000 square feet of office space, under leases that expire from July 2021 through December 2022.
We also lease offices in Denver, Colorado; Charlotte, North Carolina; Fort Lauderdale, Florida; London, England; Xiamen, China; Paris, France; and other small offices worldwide. In addition, we lease space from third-party datacenter hosting facilities under co-location agreements that support our cloud infrastructure, the most significant locations being Vienna and Ashburn, Virginia; San Jose and Santa Clara, California; Chicago, Illinois; Amsterdam, the Netherlands; Zurich, Switzerland; and other small locations worldwide. We believe that we will be able to obtain additional space at other locations at commercially reasonable terms to support our continuing expansion.
Informationinformation with respect to this item may be found in Note 9 - Commitment and Contingencies in the accompanying notes to the consolidated financial statements included in Part II, Item 8, “Consolidated Financial Statements and Supplementary Data” of this Annual Report on Form 10-K, under “Legal Matters” which is incorporated herein by reference.
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ITEM 4. | MINE SAFETY DISCLOSURES |
Not applicable.
PART II
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ITEM 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Market Information for Common Stock
Our Class A common stock has been listed on the New York Stock Exchange under the symbol “RNG” since September 27, 2013.
Our Class B common stock is not listed or traded on any stock exchange.
Dividend Policy
We have never declared or paid cash dividends on our capital stock. We currently intend to retain any future earnings for use in the operation of our business and do not intend to declare or pay any cash dividends in the foreseeable future. Any further determination to pay dividends on our capital stock will be at the discretion of our board of directors, subject to applicable laws, and will depend on our financial condition, results of operations, capital requirements, general business conditions, and other factors that our board of directors considers relevant.
Stockholders
As of February 19, 2020, there were 20 stockholders of recordbeneficial ownership of our Class A common stock and Class B common stock. Because moststock as of March 31, 2022, for:
•each of our sharesnamed executive officers;
•each of Class A common stock are heldour directors;
•all of our directors and current executive officers as a group; and
•each person, or group of affiliated persons, known by brokersus to be the beneficial owner of more than five percent of any class of our voting securities.
We have determined beneficial ownership in accordance with the rules of the SEC, and other institutions on behalf of stockholders, we are unable to estimate the total numberinformation is not necessarily indicative of beneficial stockholders represented by these record holders.
Sales of Unregistered Equity Securities and Use of Proceeds
None.
Securities Authorizedownership for Issuance under Equity Compensation Plans
Information regarding the securities authorized for issuance under our equity compensation plans can be found under Item 12 of this Annual Report on Form 10-K.
Stock Performance Graph
The following shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or incorporated by reference into any of our other filings under the Exchange Act or the Securities Act of 1933, as amended, except to the extent we specifically incorporate it by reference into such filing.
The graph below matches RingCentral Inc.'s cumulative 5-Year total shareholder return on common stock with the cumulative total returns of the Russell 2000 Index, the Russell 1000 Index, and the NASDAQ Computer Index. Prior to fiscal year 2018, we were includedpurpose. Unless otherwise indicated in the Russell 2000 Indexfootnotes below, we believe, based on the information furnished to us, that persons and have historically included a comparison with the Russell 2000 Index here. During fiscal year 2018, we moved to the Russell 1000 Index. As such, we have determined that the Russell 1000 Index is the more appropriate index going forward. For this transitional year, both the Russell 1000 Index and the Russell 2000 Index are reflectedentities named in the following graph, but we do not expecttable have sole voting and sole investment power with respect to include the Russell 2000 Index in future years. The graph tracks the performanceall shares that they beneficially owned, subject to community property laws where applicable.
We have deemed shares of a $100 investment in our common stock subject to options that are currently exercisable or exercisable within 60 days of March 31, 2022, and in each index (withshares issuable upon the reinvestmentvesting of all dividends) from DecemberRSUs within 60 days of March 31, 20142022, to December 31, 2019. Thebe outstanding and to be beneficially owned by the person holding the option or the RSUs, respectively, for the purpose of computing the percentage ownership of that person. However, we have not treated such shares as outstanding for the purpose of computing the percentage ownership of any other person. We have based percentage ownership of our common stock price performance on the following graph is not intended to forecast or be indicative of future stock price performance84,941,677 shares of our Class A common stock.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial statementsstock and data should be read together with the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, our consolidated financial statements and the related notes included elsewhere in this Annual Report on Form 10-K. Our historical results are not necessarily indicative9,955,674 shares of our results in any future period.
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| | | | | | | | | | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 | | 2016 | | 2015 |
| | (in thousands, except per share amounts) |
| Consolidated Statements of Operations | | | | | | | | | |
| Revenues | | | | | | | | | |
| Subscriptions | $ | 817,811 |
| | $ | 612,888 |
| | $ | 465,254 |
| | $ | 356,562 |
| | $ | 271,245 |
|
| Other | 85,047 |
| | 60,736 |
| | 38,363 |
| | 23,874 |
| | 24,983 |
|
| Total revenues | 902,858 |
| | 673,624 |
| | 503,617 |
| | 380,436 |
| | 296,228 |
|
| Loss from operations | (45,675 | ) | | (16,436 | ) | | (5,338 | ) | | (12,868 | ) | | (30,932 | ) |
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) | | $ | (16,225 | ) | | $ | (32,099 | ) |
| Net loss per common share | | | | | | | | | |
| Basic and diluted | (0.64 | ) | | (0.33 | ) | | (0.06 | ) | | (0.22 | ) | | (0.46 | ) |
| Weighted-average number of shares used in computing net loss per share | | | | | | | | | |
| Basic and diluted | 83,130 |
| | 79,500 |
| | 76,281 |
| | 72,994 |
| | 70,069 |
|
|
| | | | | | | | | | | | | | | | | | | |
| | As of December 31, |
| | 2019 | | 2018 | | 2017 | | 2016 | | 2015 |
| Consolidated Balance Sheet Data (in thousands) | | | | | | | | | |
| Cash and cash equivalents | $ | 343,606 |
| | $ | 566,329 |
| | $ | 181,192 |
| | $ | 160,355 |
| | $ | 137,588 |
|
| Working capital surplus | $ | 254,826 |
| | $ | 508,155 |
| | $ | 139,602 |
| | $ | 100,220 |
| | $ | 90,472 |
|
| Total assets | $ | 1,450,747 |
| | $ | 894,326 |
| | $ | 359,814 |
| | $ | 286,296 |
| | $ | 214,813 |
|
| Deferred revenue | $ | 107,372 |
| | $ | 88,527 |
| | $ | 62,917 |
| | $ | 44,618 |
| | $ | 36,657 |
|
| Debt and financing obligations | $ | 389,718 |
| | $ | 370,324 |
| | $ | — |
| | $ | 15,021 |
| | $ | 19,040 |
|
| Total stockholders' equity | $ | 745,700 |
| | $ | 317,609 |
| | $ | 228,346 |
| | $ | 164,248 |
| | $ | 110,132 |
|
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ITEM 7. | MANAGEMENT’S DISCUSSION AND ANALYSIS OFFINANCIAL CONDITION AND RESULTS OF OPERATIONS
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The following discussion of our financial condition and results of operations should be read in conjunction with the consolidated financial statements and notes thereto included elsewhere in this Annual Report on Form 10-K. As discussed in the section entitled “Special Note Regarding Forward-Looking Statements,” the following discussion and analysis contains forward-looking statements that involve risks and uncertainties, as well as assumptions that, if they never materialize or prove incorrect, could cause our results to differ significantly from those expressed or implied by such forward-looking statements. Factors that could cause or contribute to these differences include, but are not limited to, those discussed below and elsewhere in this report, particularly in the section entitled “Risk Factors” included under Part I, Item1A.
This section of this Form 10-K generally discusses 2019 and 2018 items and year-to-year comparisons between 2019 and 2018. Discussion regarding our financial condition and results of operations for fiscal 2018 as compared to fiscal 2017 is included in Item 7 of our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on February 27, 2019.
Overview
We are a leading provider of software-as-a-service (“SaaS”) solutions that enable businesses to communicate, collaborate, and connect. We believe that our innovative, cloud-based approach disrupts the large market for business communications and collaboration by providing flexible and cost-effective solutions that support distributed workforces, mobile employees, and the proliferation of smart phones and tablets. We enable convenient and effective communications for organizations across all their locations and employees, enabling them to be more productive and more responsive to their customers.
Our cloud-based business communications and collaboration solutions are designed to be easy to use, providing a single user identity across multiple locations and devices, including smartphones, tablets, PCs and desk phones. Our solutions can be deployed rapidly and configured and managed easily. Through our platform, we enable third-party developers and customers to integrate our solution with leading business applications to customize their own business workflows.
We have a portfolio of cloud-based offerings that are subscription based, made available at different rates varying by the specific functionalities, services, and number of users. We primarily generate revenues from the sale of subscriptions to our offerings.
Our subscription plans have monthly, annual, or multi-year contractual terms. We believe that this flexibility in contract duration is important to meet the different needs of our customers. For the years ended December 31, 2019, 2018, and 2017, subscriptions revenues accounted for 90% or more of our total revenues. The remainder of our revenues has historically been primarily comprised of product revenues from the sale of pre-configured phones and professional services. We do not develop, manufacture, or otherwise touch the delivery of physical phones and offer it as a convenience for a total solution to our customers in connection with subscriptions to our services. We rely on third-party providers to develop and manufacture these devices and fulfillment partners to successfully serve our customers.
We continue to invest in our direct inside sales force while also developing indirect sales channels to market our brand and our subscription offerings. Our indirect sales channel consists of a network of resellers who sell our solutions. We also sell our solutions through carriers including AT&T, Inc. (“AT&T”), TELUS Communications Company (“TELUS”), and BT Group plc (“BT”). In October 2019, we entered into a strategic partnership with Avaya Holdings Corp. ("Avaya"), which includes the introduction of a new solution Avaya Cloud Office by RingCentral ("ACO"), which will be marketed and sold by Avaya and its subsidiaries. In December 2019, we entered into a strategic partnerhip with Atos SE ("Atos"), which includes the introduction of a co-branded Unified Communications as a Service ("UCaaS") solution. We intend to continue to foster this network and expand our network with other resellers. We also participate in more traditional forms of media advertising, such as radio and billboard advertising.
Since its launch, our revenue growth has primarily been driven by our flagship RingCentral Office product offering, which has resulted in an increased number of customers, increased average subscription revenue per customer, and increased retention of our existing customer and user base. We define a “customer” as one individual billing relationship for the subscription to our services, which generally correlates to one company account per customer. As of December 31, 2019, we had customers from a range of industries, including financial services, education, healthcare, legal services, real estate, retail, technology, insurance, construction, hospitality, and state and local government, among others. For the years ended December 31, 2019, 2018 and 2017, the vast majority of our total revenues were generated in the U.S. and Canada, although we expect the percentage of our total revenues derived outside of the U.S. and Canada to grow as we continue to expand internationally.
The growth of our business and our future success depend on many factors, including our ability to expand our customer base to larger customers, continue to innovate, grow revenues from our existing customer base, expand our distribution channels, and scale internationally.
Key Business Metrics
In addition to United States generally accepted accounting principles (“U.S. GAAP”) and financial measures such as total revenues, gross margin, and cash flows from operations, we regularly review a number of key business metrics to evaluate growth trends, measure our performance, and make strategic decisions. We discuss revenues and gross margin under “Results of Operations” and cash flow from operations under “Liquidity and Capital Resources.” Other key business metrics are discussed below.
Annualized Exit Monthly Recurring Subscriptions
We believe that our Annualized Exit Monthly Recurring Subscriptions (“ARR”) is a leading indicator of our anticipated subscriptions revenues. We believe that trends in revenue are important to understanding the overall health of our business, and we use these trends in order to formulate financial projections and make strategic business decisions. Our ARR equals our Monthly Recurring Subscriptions multiplied by 12. Our Monthly Recurring Subscriptions equals the monthly value of all customer recurring charges at the end of a given month. For example, our Monthly Recurring Subscriptions at December 31, 2019 was $80.0 million. As such, our ARR at December 31, 2019 was $960.1 million compared to $725.8 million at December 31, 2018.
RingCentral Office Annualized Exit Monthly Recurring Subscriptions
We calculate our RingCentral Office Annualized Exit Monthly Recurring Subscriptions (“Office ARR”) in the same manner as we calculate our ARR, except that only customer subscriptions from RingCentral Office and RingCentral customer engagement solutions customers are included when determining Monthly Recurring Subscriptions for the purposes of calculating this key business metric. We believe that trends in revenue with respect to these products are important to the understanding of the overall health of our business, and we use these trends in order to formulate financial projections and make strategic business decisions. Our Office ARR at December 31, 2019 was $876.8 million compared to $644.1 million at December 31, 2018.
Net Monthly Subscription Dollar Retention Rate
We believe that our Net Monthly Subscription Dollar Retention Rate provides insight into our ability to retain and grow subscriptions revenue, as well as our customers’ potential long-term value to us. We believe that our ability to retain our customers and expand their use of our solutions over time is a leading indicator of the stability of our revenue base and we use these trends in order to formulate financial projections and make strategic business decisions. We define our Net Monthly Subscription Dollar Retention Rate as (i) one plus (ii) the quotient of Dollar Net Change divided by Average Monthly Recurring Subscriptions.
We define Dollar Net Change as the quotient of (i) the difference of our Monthly Recurring Subscriptions at the end of a period minus our Monthly Recurring Subscriptions at the beginning of a period minus our Monthly Recurring Subscriptions at the end of the period from new customers we added during the period, all divided by (ii) the number of months in the period. We define our Average Monthly Recurring Subscriptions as the average of the Monthly Recurring Subscriptions at the beginning and end of the measurement period.
For example, if our Monthly Recurring Subscriptions were $118 at the end of a quarterly period and $100 at the beginning of the period, and $20 at the end of the period from new customers we added during the period, then the Dollar Net Change would be equal to ($0.67), or the amount equal to the difference of $118 minus $100 minus $20, all divided by three months. Our Average Monthly Recurring Subscriptions would equal $109, or the sum of $100 plus $118, divided by two. Our Net Monthly Subscription Dollar Retention Rate would then equal 99.4%, or approximately 99%, or one plus the quotient of the Dollar Net Change divided by the Average Monthly Recurring Subscriptions.
Our key business metrics for the five quarterly periods ended December 31, 2019 were as follows (dollars in millions):
|
| | | | | | | | | | | | | | | | | | | |
| | December 31, 2019 | | September 30, 2019 | | June 30, 2019 | | March 31, 2019 | | December 31, 2018 |
| Net Monthly Subscription Dollar Retention Rate | >99% |
| | >99% |
| | >99% |
| | >99% |
| | >99% |
|
| Annualized Exit Monthly Recurring Subscriptions | $ | 960.1 |
| | $ | 881.4 |
| | $ | 830.8 |
| | $ | 776.7 |
| | $ | 725.8 |
|
RingCentral Office Annualized Exit Monthly
Recurring Subscriptions | $ | 876.8 |
| | $ | 800.3 |
| | $ | 749.2 |
| | $ | 694.0 |
| | $ | 644.1 |
|
Components of Results of Operations
Revenues
Our revenues for the years presented consisted of subscriptions and other revenues. Our subscriptions revenue includes all fees billed in connection with subscriptions to our solution offerings. These fees include recurring fixed plan subscription fees, variable usage-based fees for usage in excess of plan limits, recurring administrative cost recovery fees, one-time fees, and other recurring fees related to our subscriptions. We provide our subscriptions to our customers pursuant to contractual arrangements that range in duration typically from one month to five years. We provide our subscriptions to our customers pursuant to either “click through” online agreements for service terms up to one year or written agreements when the arrangement is expected to be one year or longer. We offer our subscriptions based on the functionalities and services selected by a customer, and generally our subscription arrangements automatically renew for additional periods at the end of the initial subscription term. We believe that this flexibility in contract duration is important to meet the different needs of our customers.
We generally bill our subscription fees in advance. We recognize subscription revenue over the term of the agreement. Amounts billed in excess of revenue recognized for the period are reported as deferred revenue on our consolidated balance sheets.
We also generate revenues through sales of our subscriptions and products by resellers and carrier partners. When we control the performance of the contractual obligations, we record the revenues on a gross basis and amounts retained by our resellers are recorded as sales and marketing expenses. Our assumption of such control is evidenced when, among other things, we take responsibility for delivery of the service or products, establish pricing of the arrangement, and assume inventory risk. When a reseller assumes the majority of these factors, we record the associated revenue at the net amount remitted to us by the reseller.
“Other revenues” includes product revenues from the sale of pre-configured phones, phone rentals, and professional services. Product revenue is recognized when the product has been delivered to the customer. Professional services revenue is recognized as services are delivered.
Cost of Revenues and Gross Margin
Our cost of subscriptions revenue primarily consists of fees paid to third-party telecommunications providers, network operations, costs to build out and maintain data centers, including co-location fees for the right to place our servers in data centers owned by third parties, depreciation of servers and equipment, along with related utilities and maintenance costs, personnel costs associated with customer care and support of the functionality of our platform and data center operations, including share-based compensation expenses, and allocated costs of facilities and information technology.
We define subscriptions gross margins as subscriptions revenue minus the cost of subscriptions revenue expressed as a percentage of subscriptions revenue.
Cost of other revenue is comprised primarily of the cost associated with the purchase of phones, cost of professional services, and allocated costs of facilities and information technology.
Operating Expenses
We classify our operating expenses as research and development, sales and marketing, and general and administrative expenses.
Our research and development efforts are focused on developing new and expanded features for our solutions, integrations with distributors and other software platforms, and improvements to our backend architecture. Research and development expenses consist primarily of personnel costs for employees and contractors, including share-based compensation expenses, and allocated costs of facilities and information technology, software tools, and product certification. We expense research and development costs as incurred, except for certain internal-use software development costs that we capitalize. We believe that continued investment in our products is important for our future growth, and we expect our research and development expenses to continue to increase in absolute dollars for the foreseeable future, although these expenses may fluctuate as a percentage of our total revenues from period to period depending on the timing of these expenses.
Sales and marketing expenses are the largest component of our operating expenses and consist primarily of personnel costs for employees and contractors directly associated with our sales and marketing activities including share-based compensation expenses, internet advertising fees, radio and billboard advertising, public relations, commissions paid to employees, resellers and other third parties, amortization of capitalized sales commissions, trade shows, travel expenses, credit card fees, marketing and promotional activities, amortization of acquired customer relationship intangibles, and allocated costs of facilities and information technology. We expect our sales and marketing expenses to continue to increase in absolute dollars for the foreseeable future as we expand our sales and marketing efforts domestically and internationally and continue to build our brand, although these expenses may fluctuate as a percentage of our total revenues from period to period depending on the timing of these expenses.
General and administrative expenses consist primarily of personnel costs, including share-based compensation expenses, for employees and contractors engaged in infrastructure and administrative activities to support the day-to-day operations of our business. Other significant components of general and administrative expenses include professional service fees, allocated costs of facilities and information technology, cost of compliance with certain government-imposed taxes, the costs of legal matters, business acquisition costs, and loss contingencies. We expect our general and administrative expenses to continue to increase in absolute dollars for the foreseeable future, although these expenses may fluctuate as a percentage of our total revenues from period to period, depending on the timing of these expenses.
Results of Operations
The following tables set forth selected consolidated statements of operations data and such data as a percentage of total revenues. The historical results presented below are not necessarily indicative of the results that may be expected for any future period (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Revenues | | | | | |
| Subscriptions | $ | 817,811 |
| | $ | 612,888 |
| | $ | 465,254 |
|
| Other | 85,047 |
| | 60,736 |
| | 38,363 |
|
| Total revenues | 902,858 |
| | 673,624 |
| | 503,617 |
|
| Cost of revenues | | | | | |
| Subscriptions | 160,320 |
| | 109,454 |
| | 89,193 |
|
| Other | 70,723 |
| | 47,675 |
| | 32,078 |
|
| Total cost of revenues | 231,043 |
| | 157,129 |
| | 121,271 |
|
| Gross profit | 671,815 |
| | 516,495 |
| | 382,346 |
|
| Operating expenses | | | | | |
| Research and development | 136,363 |
| | 101,042 |
| | 75,148 |
|
| Sales and marketing | 439,100 |
| | 329,116 |
| | 240,223 |
|
| General and administrative | 142,027 |
| | 102,773 |
| | 72,313 |
|
| Total operating expenses | 717,490 |
| | 532,931 |
| | 387,684 |
|
| Loss from operations | (45,675 | ) | | (16,436 | ) | | (5,338 | ) |
| Other income (expense), net | | | | | |
| Interest expense | (20,512 | ) | | (16,102 | ) | | (99 | ) |
| Other income, net | 9,247 |
| | 6,475 |
| | 1,491 |
|
| Other income (expense), net | (11,265 | ) | | (9,627 | ) | | 1,392 |
|
| Loss before income taxes | (56,940 | ) | | (26,063 | ) | | (3,946 | ) |
| Provision for (benefit from) income taxes | (3,333 | ) | | 140 |
| | 258 |
|
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) |
Percentage of Total Revenues*
|
| | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Revenues | | | | | |
| Subscriptions | 91 | % | | 91 | % | | 92 | % |
| Other | 9 |
| | 9 |
| | 8 |
|
| Total revenues | 100 |
| | 100 |
| | 100 |
|
| Cost of revenues | | | | | |
| Subscriptions | 18 |
| | 16 |
| | 18 |
|
| Other | 8 |
| | 7 |
| | 6 |
|
| Total cost of revenues | 26 |
| | 23 |
| | 24 |
|
| Gross profit | 74 |
| | 77 |
| | 76 |
|
| Operating expenses | | | | | |
| Research and development | 15 |
| | 15 |
| | 15 |
|
| Sales and marketing | 49 |
| | 49 |
| | 48 |
|
| General and administrative | 16 |
| | 15 |
| | 14 |
|
| Total operating expenses | 79 |
| | 79 |
| | 77 |
|
| Loss from operations | (5 | ) | | (2 | ) | | (1 | ) |
| Other income (expense), net | | | | | |
| Interest expense | (2 | ) | | (2 | ) | | — |
|
| Other income, net | 1 |
| | 1 |
| | — |
|
| Other income (expense), net | (1 | ) | | (1 | ) | | — |
|
| Loss before income taxes | (6 | ) | | (4 | ) | | (1 | ) |
| Provision for (benefit from) income taxes | — |
| | — |
| | — |
|
| Net loss | (6 | %) | | (4 | %) | | (1 | %) |
* Percentages may not add up due to rounding.
Comparison of Fiscal Years Ended December 31, 2019, 2018, and 2017:
Revenues
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| Revenues | | | | | | | | | | | | | | | | |
| Subscriptions | | $ | 817,811 |
| | $ | 612,888 |
| | $ | 204,923 |
| | 33 | % | | $ | 612,888 |
| | $ | 465,254 |
| | $ | 147,634 |
| | 32 | % |
| Other | | 85,047 |
| | 60,736 |
| | 24,311 |
| | 40 | % | | 60,736 |
| | 38,363 |
| | 22,373 |
| | 58 | % |
| Total revenues | | $ | 902,858 |
| | $ | 673,624 |
| | $ | 229,234 |
| | 34 | % | | $ | 673,624 |
| | $ | 503,617 |
| | $ | 170,007 |
| | 34 | % |
| Percentage of revenues | | | | | | | | | | | | | | | | |
| Subscriptions | | 91 | % | | 91 | % | | | | | | 91 | % | | 92 | % | | | | |
| Other | | 9 |
| | 9 |
| | | | | | 9 |
| | 8 |
| | | | |
| Total | | 100 | % | | 100 | % | | | | | | 100 | % | | 100 | % | | | | |
Subscriptions revenue. Subscriptions revenue increased by $204.9 million, or33%, during fiscal year 2019 as compared to fiscal year 2018. The increase was primarily a combination of the acquisition of new customers and upsells of seats and additional offerings to our existing customer base. This growth was primarily driven by an increase in sales to our mid-market and enterprise customers as we continue to expand up market, and increase in sales through our channel partners.
Other revenues. Other revenues are primarily comprised of product revenue from the sale of pre-configured phones, phone rentals, and professional services.
Other revenue increased by $24.3 million, or 40%, during fiscal year 2019 as compared to fiscal year 2018, primarily due to the increase in product sales and professional services resulting from the overall growth in our business.
Cost of Revenues and Gross Margin
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| Cost of revenues | | | | | | | | | | | | | | | | |
| Subscriptions | | $ | 160,320 |
| | $ | 109,454 |
| | $ | 50,866 |
| | 46 | % | | $ | 109,454 |
| | $ | 89,193 |
| | $ | 20,261 |
| | 23 | % |
| Other | | 70,723 |
| | 47,675 |
| | 23,048 |
| | 48 | % | | 47,675 |
| | 32,078 |
| | 15,597 |
| | 49 | % |
| Total cost of revenues | | $ | 231,043 |
| | $ | 157,129 |
| | $ | 73,914 |
| | 47 | % | | $ | 157,129 |
| | $ | 121,271 |
| | $ | 35,858 |
| | 30 | % |
| Percentage of revenues | | | | | | | | | | | | | | | | |
| Subscriptions | | 18 | % | | 16 | % | | | | | | 16 | % | | 18 | % | | | | |
| Other | | 8 | % | | 7 | % | | | | | | 7 | % | | 6 | % | | | | |
| Gross margins | | | | | | | | | | | | | | | | |
| Subscriptions | | 80 | % | | 82 | % | | | | | | 82 | % | | 81 | % | | | | |
| Other | | 17 | % | | 22 | % | | | | | | 22 | % | | 16 | % | | | | |
| Total gross margin % | | 74 | % | | 77 | % | | | | | | 77 | % | | 76 | % | | | | |
Subscription cost of revenues and gross margin. Cost of subscriptions revenues increased by $50.9 million, or 46%, during fiscal year 2019 as compared to fiscal year 2018. Primary drivers of the increase were increases in third-party costs to support our solution offerings of $21.5 million, infrastructure support costs of $19.8 million including amortization expense from acquired intangible assets, and headcount and personnel and contractor related costs of $9.6 million including share-based compensation expense. These factors resulted in a decrease in gross margin.
The increase in headcount and other expense categories described herein was driven primarily by investments in our infrastructure and capacity to improve the availability of our subscription offerings, while also supporting the growth in new customers and increased usage of our subscriptions by our existing customer base. We expect subscription gross margin to be within a relatively similar range in the future.
Other cost of revenues and gross margin. Cost of other revenues increased by $23.0 million, or 48%, during fiscal year 2019 as compared to fiscal year 2018. This was primarily due to the increase in services personnel costs of $11.1 million including share-based compensation expense, cost of product sales of $10.6 million, and overhead costs of $1.3 million. Other revenues gross margin fluctuates based on timing of completion of professional services projects and discounting on phones.
Research and Development
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| Research and development | | $ | 136,363 |
| | $ | 101,042 |
| | $ | 35,321 |
| | 35 | % | | $ | 101,042 |
| | $ | 75,148 |
| | $ | 25,894 |
| | 34 | % |
| Percentage of total revenues | | 15 | % | | 15 | % | | | | | | 15 | % | | 15 | % | | | | |
Research and development expenses increased by $35.3 million, or 35%, during fiscal year 2019 as compared to fiscal year 2018, primarily due to increases in personnel and contractor costs of $30.3 million and overhead costs to support our research and development efforts of $4.8 million. Of the total increase in personnel and contractor costs, approximately $20.0 million was primarily driven by headcount growth and $8.2 million was due to higher share-based compensation expense.
The increases in research and development headcount and other expense categories were driven by continued investment in current and future software development projects for our applications. Given the continued emphasis and focus on product innovation, we expect research and development expenses to continue to increase in absolute dollars.
Sales and Marketing
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| Sales and marketing | | $ | 439,100 |
| | $ | 329,116 |
| | $ | 109,984 |
| | 33 | % | | $ | 329,116 |
| | $ | 240,223 |
| | $ | 88,893 |
| | 37 | % |
| Percentage of total revenues | | 49 | % | | 49 | % | | | | | | 49 | % | | 48 | % | | | | |
Sales and marketing expenses increased by $110.0 million, or 33%, during fiscal year 2019 as compared to fiscal year 2018, primarily due to increases in personnel and contractor costs of $45.2 million, third-party commissions of $27.5 million, amortization of deferred sales commission costs of $10.4 million, costs associated with strategic partnerships and acquisitions of $10.3 million, advertising and marketing costs of $6.6 million, overhead costs to support our marketing efforts of $6.5 million, and travel costs of $2.8 million. Of the total increase in personnel and contractor costs, approximately $31.9 million was primarily due to headcount growth and $11.0 million was due to higher share-based compensation expense.
The increases in sales and marketing headcount and other expense categories were necessary to support our growth strategy to acquire new customers with a focus on larger customers, and to establish brand recognition to achieve greater penetration into the North American and international markets. Additionally, we expect sales and marketing expenses to continue to increase in absolute dollars as we continue to expand our presence in North America, Europe, and other markets.
General and Administrative
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| General and administrative | | $ | 142,027 |
| | $ | 102,773 |
| | $ | 39,254 |
| | 38 | % | | $ | 102,773 |
| | $ | 72,313 |
| | $ | 30,460 |
| | 42 | % |
| Percentage of total revenues | | 16 | % | | 15 | % | | | | | | 15 | % | | 14 | % | | | | |
General and administrative expenses increased by $39.3 million, or 38%, during fiscal year 2019 as compared to fiscal year 2018, primarily due to increases in personnel and contractor costs of $31.6 million, business fees and taxes of $3.5 million, professional fees of $2.1 million, and acquisition related costs of $2.4 million, partially offset by a decrease in overhead costs of $1.2 million when compared to prior year. Of the total increase in personnel and contractor cost, approximately $19.1 million was primarily driven by headcount growth and $10.3 million was due to higher share-based compensation expense.
We expect general and administrative expenses to continue to increase in absolute dollars as we continue to make additional investments in processes, systems, and personnel to support our anticipated revenue growth.
Other Income (expense), net
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | | Year ended December 31, |
| (in thousands, except percentages) | | 2019 | | 2018 | | $ Change | | % Change | | 2018 | | 2017 | | $ Change | | % Change |
| Interest expense | | $ | (20,512 | ) | | $ | (16,102 | ) | | $ | (4,410 | ) | | 27 | % | | $ | (16,102 | ) | | $ | (99 | ) | | $ | (16,003 | ) | | nm |
| Other income, net | | 9,247 |
| | 6,475 |
| | 2,772 |
| | 43 | % | | 6,475 |
| | 1,491 |
| | 4,984 |
| | nm |
| Other income (expense), net | | $ | (11,265 | ) | | $ | (9,627 | ) | | $ | (1,638 | ) | | 17 | % | | $ | (9,627 | ) | | $ | 1,392 |
| | $ | (11,019 | ) | | nm |
nm - not meaningful
Other expense, net increased by $1.6 million during fiscal year 2019 as compared to fiscal year 2018, primarily driven by an increase in costs associated with strategic partnerships and acquisitions of $10.6 million, interest expense of $4.4 million resulting from the amortization of debt discount and issuance costs of our 0% convertible senior notes due 2023 (“Notes”), offset in part by $8.3 million non-cash gains recognized from our long-term investments, increase of $3.0 million in interest income earned on our cash and cash equivalents, and gain on foreign exchange of $1.6 million.
Net loss
Net loss increased by $27.4 million during fiscal year 2019, mainly due to higher share-based compensation expense of $33.3 million and non-recurring acquisitions and strategic partnership related expenses of $24.1 million, offset by growth in continuing operations, as discussed above.
Liquidity and Capital Resources
As of December 31, 2019 and 2018, we had cash and cash equivalents of $343.6 million and $566.3 million, respectively. We finance our operations primarily through sales to our customers and a majority of our customers are billed monthly. For customers with annual or multi-year contracts and those who opt for annual invoicing, we generally invoice only one annual period in advance and all invoicing occurs at the start of the respective subscription period. Revenue is deferred for such advanced billings. We also finance our operations from proceeds from issuance ofClass B common stock under our stock plans, and proceeds from issuance of debt. We believe that our operations and existing liquidity sources will satisfy our cash requirements for at least the next 12 months.
Our future capital requirements will depend on many factors, including revenue growth and costs incurred to support customer growth, acquisitions and expansions, sales and marketing, research and development, increased general and administrative expenses to support the anticipated growth in our operations, and capital equipment required to support our growing headcount and in support of our co-location data center facilities. Our capital expenditures in future periods are expected to grow in line with our business. We continually evaluate our capital needs and may decide to raise additional capital to fund the growth of our business, to further strengthen our balance sheet, or for general corporate purposes through public or private equity offerings or through additional debt financing. We also may in the future make investments in or acquire businesses or technologies that could require us to seek additional equity or debt financing. Access to additional capital may not be available, or on favorable terms.
The table below provides selected cash flow information for the periods indicated (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Net cash provided by operating activities | $ | 64,846 |
| | $ | 72,130 |
| | $ | 41,165 |
|
| Net cash used in investing activities | (296,780 | ) | | (83,448 | ) | | (26,387 | ) |
| Net cash provided by financing activities | 9,042 |
| | 397,255 |
| | 6,783 |
|
| Effect of exchange rate changes | 169 |
| | (800 | ) | | (724 | ) |
| Net (decrease) increase in cash, cash equivalents, and restricted cash | $ | (222,723 | ) | | $ | 385,137 |
| | $ | 20,837 |
|
Net Cash Provided by Operating Activities
Cash provided by operating activities is influenced by the timing of customer collections, as well as the amount and timing of disbursements to our vendors, the amount of cash we invest in personnel, marketing, and infrastructure costs to support the anticipated growth of our business, and the increase in the number of customers.
Net cash provided by operating activities was $64.8 million for the year ended December 31, 2019. This was driven by net loss of $53.6 million adjusted for impacts of non-cash adjustments of $205.5 million, partially offset by a net cash used for working capital of $87.0 million driven primarily by timing of cash payments to vendors and cash receipts and prepayments from customers and carriers. The non-cash adjustments resulted primarily from $101.4 million of share-based compensation, $37.9 million of depreciation and amortization, $30.1 million amortization of deferred sales commissions costs, $20.3 million amortization of debt discount and issuance costs related to our convertible notes, and $3.4 million loss and other related costs on investments.
Net cash provided by operating activities for the year ended December 31, 2019, decreased by $7.3 million as compared to the year ended December 31, 2018. This change reflects working capital benefits resulting from payments and collections timing, as well as approximately $37.0 million of one-time payments stemming from our recent partnerships.
Net Cash Used in Investing Activities
Our primary investing activities have consisted of our long-term investments, business acquisitions and purchase of intellectual properties, and capital expenditures and internal-use software. As our business grows, we expect our capital expenditures to continue to increase.
Net cash used in investing activities was $296.8 million for the year ended December 31, 2019. This was driven by our $135.6 million purchase of long-term investments, $89.1 million cash paid to acquire intellectual property, $44.3 million in capital expenditures including personnel-related costs associated with development of internal-use software, and $27.9 million net cash paid for our acquisition of Connect First, Inc.
Net cash used in investing activities for the year ended December 31, 2019 increased by $213.3 million as compared to the year ended December 31, 2018, primarily due to our $135.6 million purchase of long-term investments, an increase of $70.6 million in cash paid for the acquisition of intangible assets, and higher capital expenditures during 2019.
Net Cash Provided by Financing Activities
Our primary financing activities have consisted of raising proceeds through the issuance of stock under our stock plans and issuance of our Notes.
Net cash provided by financing activities was approximately $9.0 million for the year ended December 31, 2019, primarily resulting from $15.2 million in proceeds from the issuance of shares in connection with our stock plans, net of taxes paid. This was partially offset by payments of $5.2 million of contingent consideration associated with acquisitions, and repayment of our financing obligation of $0.9 million.
Net cash provided by financing activities for the year ended December 31, 2019, decreased by $388.2 million as compared to the year ended December 31, 2018, primarily due to proceeds from our Notes issued in 2018.
Backlog
We have generally signed new customers to contracts that vary in length, from month-to-month to multi-year terms for our subscriptions. The timing of invoicing to our customers is a negotiated term and thus varies among our subscription contracts. Payment terms are generally billed either monthly or on an annual basis. At any point in the contract term, there can be amounts that we have not yet been contractually able to invoice, which constitute backlog. Until such time as these amounts are invoiced, we do not recognize them as revenues, unearned revenues or elsewhere in our consolidated financial statements. Given the variability in our contract length, we believe that backlog is not a reliable indicator of future revenues and we do not utilize backlog as a key management metric internally.
Deferred Revenue
Deferred revenue primarily consists of the unearned portion of invoiced fees for our subscriptions, which we recognize as revenue in accordance with our revenue recognition policy. Customers with annual or multi-year contracts may opt for annual invoicing. For these customers, we generally invoice only one annual subscription period in advance. Therefore, our deferred revenue balance does not capture the full contract value of such multi-year contracts. Accordingly, we believe that deferred revenue is not a reliable indicator of future revenues and we do not utilize deferred revenue as a key management metric internally.
Contractual Obligations
The following summarizes our contractual obligationsoutstanding as of DecemberMarch 31, 2019 (in thousands):
|
| | | | | | | | | | | | | | |
| | Payments due by period |
| | Up to
1 year | | 1 to 3 years | | 3 to 5 years | | More than
5 years | | Total |
| Operating lease obligations | 16,164 |
| | 19,812 |
| | 6,551 |
| | 5,883 |
| | 48,410 |
|
| Financing obligations | 2,956 |
| | 5,912 |
| | — |
| | — |
| | 8,868 |
|
| Long-term debt | — |
| | — |
| | 460,000 |
| | — |
| | 460,000 |
|
| Purchase obligations | 55,755 |
| | 16,220 |
| | 7,595 |
| | 17,649 |
| | 97,219 |
|
| Total | 74,875 |
| | 41,944 |
| | 474,146 |
| | 23,532 |
| | 614,497 |
|
Purchase obligations represent an estimate of open purchase orders and contractual obligations in2022. Unless otherwise indicated, the normal course of business for which we have not received the goods or services as of December 31, 2019. Although open purchase orders are considered enforceable and legally binding, except for our purchase orders with our inventory suppliers, the terms generally allow us the option to cancel, reschedule, and adjust our requirements based on our business needs prior to the delivery of goods or performance of services. Our purchase orders with our inventory suppliers are non-cancellable. In addition, we have other
obligations for goods and services that we enter into in the normal course of business. These obligations, however, are either not enforceable or legally binding, or are subject to change based on our business decisions. The aggregate of these items represents our estimate of purchase obligations.
Indemnification Obligations
Certain of our agreements with sales agents, resellers and customers include provisions for indemnification against liabilities if our products infringe a third-party’s intellectual property rights. To date, we have not incurred any material costs as a result of such indemnification provisions and have not accrued any liabilities related to such obligations in the consolidated financial statements as of December 31, 2019.
Contingencies
We are and may be in the future subject to certain legal proceedings and from time to time may be involved in a variety of claims, lawsuits, investigations, and proceedings relating to contractual disputes, intellectual property rights, employment matters, regulatory compliance matters, and other matters relating to various claims that arise in the normal course of business. We record a provision for a liability when we believe that it is both probable that a liability has been incurred, and the amount can be reasonably estimated. Significant judgment is required to determine both probability and the estimated amount of loss. Such legal proceedings are inherently unpredictable and subject to significant uncertainties, some of which are beyond our control. Should any of these estimates and assumptions change or prove to be incorrect, it could have a significant impact on our results of operations, financial position, and cash flows.
Refer to Note 9 – Commitment and Contingencies of the notes to the consolidated financial statements included in Part II, Item 8, “Consolidated Financial Statements and Supplementary Data” of this Annual Report on Form 10-K for additional information.
Off-Balance Sheet Arrangements
Through December 31, 2019, we did not have any relationships with unconsolidated organizations or financial partnerships, such as structured finance or special purpose entities that would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.
Critical Accounting Policies and Estimates
We prepare our consolidated financial statements in accordance with U.S. GAAP. In many cases, the accounting treatment of a particular transaction is specifically dictated by U.S. GAAP and does not require management’s judgment in its application. In other cases, management’s judgment is required in selecting among available alternative accounting standards that provide for different accounting treatment for similar transactions. The preparation of consolidated financial statements also requires us to make estimates and assumptions that affect the amounts we report as assets, liabilities, revenues, costs, and expenses, and affect the related disclosures. We base our estimates on historical experience and other assumptions that we believe are reasonable under the circumstances. In many instances, we could reasonably use different accounting estimates, and in some instances changes in the accounting estimates are reasonably likely to occur from period to period. Accordingly, our actual results could differ significantly from the estimates made by our management. To the extent that there are differences between our estimates and actual results, our future financial statement presentation, financial condition, results of operations, and cash flows will be affected. We believe that the accounting policies discussed below are critical to understanding our historical and future performance, as these policies relate to the more significant areas involving management’s judgments and estimates.
Revenue Recognition
We derive our revenues from subscriptions, sale of products, and professional services. Subscriptions revenue is generally recognized over the period of the subscription contract. Subscription contracts typically allow the customers to terminate their services at any time during the first 30 or 60 days of the subscription period and are charged for the term of usage. Upon cancellation during the termination period, customers receive a pro-rata refund for any amounts paid. After the end of the termination period, the contract is non-cancellable and the customer is obligated to pay for the remaining term of the contract. For sale of products, revenue is recognized when control is transferred. For professional services, revenue is recognized as services are rendered.
Recent Accounting Pronouncements
For a summary of recent accounting pronouncements and the anticipated effects on our consolidated financial statements, see Note 1 to the consolidated financial statements included in Part II, Item 8, “Consolidated Financial Statements and Supplementary Data” of this Annual Report on Form 10-K, which is incorporated herein by reference.
ITEM 7A. Quantitative and Qualitative Disclosures about Market Risk
We are exposed to market risk in the ordinary course of our business. Market risk represents the risk of loss that may impact our financial position due to adverse changes in financial market prices and rates. Our market risk exposure is primarily a result of fluctuations in foreign currency exchange rates and interest rates. We do not hold or issue financial instruments for trading purposes.
Foreign Currency Risk
The majority of our sales and contracts are denominated in U.S. dollars, and therefore our net revenue is not currently subject to significant foreign currency risk. As part of our international operations, we charge customers in British Pounds, European Union (“EU”) Euro, Canadian Dollars and Australian Dollars, among others. However, this impact has not been significant in 2019. Our operating expenses are generally denominated in the currencies of the countries in which our operations are located, which are primarily in the U.S., and to a lesser extent in Canada, Europe, and Asia-Pacific. The functional currency of our foreign subsidiaries is generally the local currency. Our consolidated results of operations and cash flows are, therefore, subject to fluctuations due to changes in foreign currency exchange rates and may be adversely affected in the future due to changes in foreign currency exchange rates. To date, we have not entered into any hedging arrangements with respect to foreign currency risk. During fiscal 2019, a hypothetical 10% change in foreign currency exchange rates applicable to our business would not have had a material impact on our consolidated financial statements. As our international operations continue to expand, risks associated with fluctuating foreign currency rates may increase. We will continue to reassess our approach to managing these risks.
Interest Rate and Investments Risks
As of December 31, 2019, we had cash and cash equivalents of $343.6 million, a majority of which are held in money-market funds. We hold our cash and cash equivalents for working capital purposes. Declines in interest rates would reduce future interest income. During fiscal year 2019, a hypothetical 10% increase or decrease in overall interest rates would not have had a material on impact our interest income. The carrying amount of our cash equivalents reasonably approximates fair values. Due to the short-term nature of our money-market funds, we believe that exposure to changes in interest rates will not have a material impact on the fair value of our cash equivalents.
As of December 31, 2019, we had $386.9 million outstanding of our 0% convertible senior notes due 2023 (the "Notes"). We carry the Notes at face value less unamortized discount on our balance sheet, and we present the fair value for required disclosure purposes only. The Notes have a zero percent fixed annual interest rate and, therefore, we have no economic exposure to changes in interest rates. The fair value of the Notes is exposed to interest rate risk. Generally, the fair value of our fixed interest rate Notes will increase as interest rates decline and decrease as interest rates increase. In addition, the fair values of the Notes are affected by our stock price. The fair value of the Notes will generally increase as our common stock price increases and will generally decrease as our common stock price decrease in value.
As of December 31, 2019, we had long term investments in convertible and redeemable preferred stock of $132.2 million. These equity investments are subject to market related risks that could decrease or increase the fair value of our holdings. These equity investments are adjusted to fair value based on market inputs at the balance sheet date, which are subject to market-related risks that could decrease or increase the fair value of our holdings. A fluctuation in the investee's stock price could have an adverse impact on the fair value of our investment. A hypothetical adverse stock price change of 10% could have resulted in a potential decrease of up to $7 million in the fair-value of our investment as of December 31, 2019.
| |
ITEM 8. | CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
RINGCENTRAL, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors
RingCentral, Inc.:
Opinions on the Consolidated Financial Statements and Internal Control Over Financial Reporting
We have audited the accompanying consolidated balance sheets of RingCentral, Inc. and subsidiaries (the Company) as of December 31, 2019 and 2018, the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2019, and the related notes (collectively, the consolidated financial statements). We also have audited the Company’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2019, in conformity with U.S. generally accepted accounting principles. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019 based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
The Company acquired Connect First, Inc. on January 14, 2019, and management excluded from its assessment of the effectiveness of the Company’s internal control over financial reporting as of December 31, 2019, Connect First, Inc.’s internal control over financial reporting associated with approximately 3% of consolidated total assets and approximately 1% of consolidated total revenues included in the consolidated financial statements of the Company as of and for the year ended December 31, 2019. Our audit of internal control over financial reporting of the Company as of December 31, 2019 also excluded an evaluation of the internal control over financial reporting of Connect First, Inc.
Change in Accounting Principle
As discussed in Note 2 to the consolidated financial statements, the Company has changed its method of accounting for leases as of January 1, 2019, due to the adoption of Financial Accounting Standards Board’s Accounting Standards Codification (ASC) Topic 842, Leases.
Basis for Opinions
The Company’s management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Report on Internal Controls over Financial Reporting appearing in Item 9A. Our responsibility is to express an opinion on the Company’s consolidated financial statements and an opinion on the Company’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgment. The communication of a critical audit matter does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Evaluation of Audit Evidence Over Subscriptions Revenue
As discussed in Note 1 to the consolidated financial statements, and disclosed in the consolidated statements of operations, the Company recorded $902.9 million of total revenues for the year ended December 31, 2019, of which $817.8 million related to subscriptions. There are high volumes of subscription transactions processed across multiple information technology (IT) systems.
We identified the evaluation of audit evidence over subscriptions revenue as a critical audit matter. This matter required especially subjective auditor judgment because of the number of IT applications involved in the subscriptions revenue recognition process. This matter also included determining the nature and extent of audit evidence obtained over subscriptions revenue, and the need to involve IT professionals to assist with the performance of certain procedures.
The primary procedures we performed to address this critical audit matter included the following. We tested certain internal controls over the Company’s subscriptions revenue process, including associated IT controls. We applied auditor judgment to determine the nature and extent of procedures to be performed over subscriptions revenue, including the determination of the IT applications subject to testing. We assessed the recorded subscriptions revenue by selecting transactions and comparing the amounts recognized for consistency with underlying documentation, including contracts with customers. We also involved IT professionals with specialized skills and knowledge, who assisted in testing certain IT applications that are used by the Company in its subscriptions revenue recognition process. In addition, we evaluated the overall sufficiency of audit evidence obtained over subscriptions revenue.
/s/ KPMG LLP
We have served as the Company’s auditor since 2010.
Santa Clara, California
February 26, 2020
RINGCENTRAL, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except par value per share)
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Assets | | | |
| Current assets | | | |
| Cash and cash equivalents | $ | 343,606 |
| | $ | 566,329 |
|
| Accounts receivable, net | 129,990 |
| | 94,375 |
|
| Deferred and prepaid sales commission costs | 36,589 |
| | 23,038 |
|
| Prepaid expenses and other current assets | 25,354 |
| | 23,772 |
|
| Total current assets | 535,539 |
| | 707,514 |
|
| Property and equipment, net | 89,230 |
| | 70,205 |
|
| Operating lease right-of-use-assets | 39,269 |
| | — |
|
| Long-term investments | 132,188 |
| | — |
|
| Deferred and prepaid sales commission costs, non-current | 462,344 |
| | 55,735 |
|
| Goodwill | 55,278 |
| | 31,238 |
|
| Acquired intangibles, net | 127,338 |
| | 19,480 |
|
| Other assets | 9,561 |
| | 10,154 |
|
| Total assets | $ | 1,450,747 |
| | $ | 894,326 |
|
| Liabilities and Stockholders' Equity | | | |
| Current liabilities | | | |
| Accounts payable | $ | 34,612 |
| | $ | 10,145 |
|
| Accrued liabilities | 138,729 |
| | 100,687 |
|
| Deferred revenue | 107,372 |
| | 88,527 |
|
| Total current liabilities | 280,713 |
| | 199,359 |
|
| Convertible senior notes, net | 386,889 |
| | 366,552 |
|
| Operating lease liabilities | 28,516 |
| | — |
|
| Other long-term liabilities | 8,929 |
| | 10,806 |
|
| Total liabilities | 705,047 |
| | 576,717 |
|
| Commitments and contingencies (Note 9) |
|
| |
|
|
| | | | |
| Stockholders' equity | | | |
| Class A common stock, $0.0001 par value; 1,000,000 shares authorized at December 31, 2019 and 2018; 75,901 and 69,445 shares issued and outstanding at December 31, 2019 and 2018 | 8 |
| | 7 |
|
| Class B common stock, $0.0001 par value; 250,000 shares authorized at December 31, 2019 and 2018; 11,039 and 11,601 shares issued and outstanding at December 31, 2019 and 2018 | 1 |
| | 1 |
|
| Additional paid-in capital | 1,033,053 |
| | 551,078 |
|
| Accumulated other comprehensive income | 1,948 |
| | 2,226 |
|
| Accumulated deficit | (289,310 | ) | | (235,703 | ) |
| Total stockholders' equity | 745,700 |
| | 317,609 |
|
| Total liabilities and stockholders' equity | $ | 1,450,747 |
| | $ | 894,326 |
|
See accompanying notes to consolidated financial statements
RINGCENTRAL, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Revenues | | | | | |
| Subscriptions | $ | 817,811 |
| | $ | 612,888 |
| | $ | 465,254 |
|
| Other | 85,047 |
| | 60,736 |
| | 38,363 |
|
| Total revenues | 902,858 |
| | 673,624 |
| | 503,617 |
|
| Cost of revenues | | | | | |
| Subscriptions | 160,320 |
| | 109,454 |
| | 89,193 |
|
| Other | 70,723 |
| | 47,675 |
| | 32,078 |
|
| Total cost of revenues | 231,043 |
| | 157,129 |
| | 121,271 |
|
| Gross profit | 671,815 |
| | 516,495 |
| | 382,346 |
|
| Operating expenses | | | | | |
| Research and development | 136,363 |
| | 101,042 |
| | 75,148 |
|
| Sales and marketing | 439,100 |
| | 329,116 |
| | 240,223 |
|
| General and administrative | 142,027 |
| | 102,773 |
| | 72,313 |
|
| Total operating expenses | 717,490 |
| | 532,931 |
| | 387,684 |
|
| Loss from operations | (45,675 | ) | | (16,436 | ) | | (5,338 | ) |
| Other income (expense), net | | | | | |
| Interest expense | (20,512 | ) | | (16,102 | ) | | (99 | ) |
| Other income, net | 9,247 |
| | 6,475 |
| | 1,491 |
|
| Other income (expense), net | (11,265 | ) | | (9,627 | ) | | 1,392 |
|
| Loss before income taxes | (56,940 | ) | | (26,063 | ) | | (3,946 | ) |
| Provision for (benefit from) income taxes | (3,333 | ) | | 140 |
| | 258 |
|
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) |
| Net loss per common share | | | | | |
| Basic and diluted | $ | (0.64 | ) | | $ | (0.33 | ) | | $ | (0.06 | ) |
| Weighted-average number of shares used in computing net loss per share | | | | | |
| Basic and diluted | 83,130 |
| | 79,500 |
| | 76,281 |
|
See accompanying notes to consolidated financial statements
RINGCENTRAL, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(in thousands)
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) |
| Other comprehensive income (loss) | | | | | |
| Foreign currency translation adjustments, net | (278 | ) | | (772 | ) | | 261 |
|
| Comprehensive loss | $ | (53,885 | ) | | $ | (26,975 | ) | | $ | (3,943 | ) |
See accompanying notes to consolidated financial statements
RINGCENTRAL, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands)
|
| | | | | | | | | | | | | | | | | | | | | | |
| | | | | | Additional Paid-in Capital | | Accumulated Other Comprehensive Loss | | Accumulated Deficit | | Total Stockholders' Equity |
| | Common stock | | | | |
| | Shares | | Amount | | | | |
| Balance as of December 31, 2016 | 74,383 |
| | $ | 7 |
| | $ | 366,800 |
| | $ | 2,737 |
| | $ | (205,296 | ) | | $ | 164,248 |
|
| Issuance of common stock in connection with Equity Incentive and Employee Stock Purchase plans, net of tax withholdings | 3,594 |
| | 1 |
| | 21,803 |
| | — |
| | — |
| | 21,804 |
|
| Issuance of common stock for achievement of Glip related matters | 77 |
| | — |
| | 3,560 |
| | — |
| | — |
| | 3,560 |
|
| Share-based compensation | — |
| | — |
| | 42,677 |
| | — |
| | — |
| | 42,677 |
|
| Changes in comprehensive loss | — |
| | — |
| | — |
| | 261 |
| | — |
| | 261 |
|
| Net loss | — |
| | — |
| | — |
| | — |
| | (4,204 | ) | | (4,204 | ) |
| Balance as of December 31, 2017 | 78,054 |
| | $ | 8 |
| | $ | 434,840 |
| | $ | 2,998 |
| | $ | (209,500 | ) | | $ | 228,346 |
|
| Issuance of common stock in connection with Equity Incentive and Employee Stock Purchase plans, net of tax withholdings | 3,231 |
| | — |
| | 13,449 |
| | — |
| | — |
| | 13,449 |
|
| Shares repurchased | (239 | ) | | — |
| | (15,000 | ) | | — |
| | — |
| | (15,000 | ) |
| Share-based compensation | — |
| | — |
| | 68,876 |
| | — |
| | — |
| | 68,876 |
|
| Equity component of convertible senior notes, net of issuance cost | — |
| | — |
| | 98,823 |
| | — |
| | — |
| | 98,823 |
|
| Purchase of capped calls | — |
| | — |
| | (49,910 | ) | | — |
| | — |
| | (49,910 | ) |
| Changes in comprehensive loss | — |
| | — |
| | — |
| | (772 | ) | | — |
| | (772 | ) |
| Net loss | — |
| | — |
| | — |
| | — |
| | (26,203 | ) | | (26,203 | ) |
| Balance as of December 31, 2018 | 81,046 |
| | $ | 8 |
| | $ | 551,078 |
| | $ | 2,226 |
| | $ | (235,703 | ) | | $ | 317,609 |
|
| Issuance of common stock in connection with Equity Incentive and Employee Stock Purchase plans, net of tax withholdings | 3,723 |
| | 1 |
| | 15,160 |
| | — |
| | — |
| | 15,161 |
|
| Issuance of common stock in connection with investments | 2,171 |
| | — |
| | 361,000 |
| | — |
| | — |
| | 361,000 |
|
| Share-based compensation | — |
| | — |
| | 105,815 |
| | — |
| | — |
| | 105,815 |
|
| Changes in comprehensive loss | — |
| | — |
| | — |
| | (278 | ) | | — |
| | (278 | ) |
| Net loss | — |
| | — |
| | — |
| | — |
| | (53,607 | ) | | (53,607 | ) |
| Balance as of December 31, 2019 | 86,940 |
| | $ | 9 |
| | $ | 1,033,053 |
| | $ | 1,948 |
| | $ | (289,310 | ) | | $ | 745,700 |
|
See accompanying notes to consolidated financial statements
RINGCENTRAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Cash flows from operating activities | | | | | |
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) |
| Adjustments to reconcile net loss to net cash provided by operating activities: | | | | | |
| Depreciation and amortization | 37,870 |
| | 23,273 |
| | 16,214 |
|
| Share-based compensation | 101,354 |
| | 68,088 |
| | 42,060 |
|
| Amortization of deferred sales commission cost | 30,134 |
| | 19,754 |
| | 12,623 |
|
| Amortization of debt discount and issuance cost | 20,337 |
| | 15,918 |
| | — |
|
| Reduction of operating lease right-of-use assets | 13,256 |
| | — |
| | — |
|
| Loss (gain) and other related costs on investments | 3,369 |
| | — |
| | — |
|
| Foreign currency remeasurement (gain) loss | (105 | ) | | 951 |
| | (666 | ) |
| Provision for bad debt | 2,949 |
| | 3,091 |
| | 1,674 |
|
| Deferred income taxes | (737 | ) | | (303 | ) | | (47 | ) |
| Tax benefit from release of valuation allowance | (3,210 | ) | | — |
| | — |
|
| Other | 240 |
| | 614 |
| | 181 |
|
| Changes in assets and liabilities: | | | | | |
| Accounts receivable | (37,163 | ) | | (47,877 | ) | | (17,903 | ) |
| Deferred and prepaid sales commission costs | (102,303 | ) | | (45,232 | ) | | (32,469 | ) |
| Prepaid expenses and other current assets | (1,575 | ) | | (342 | ) | | (6,199 | ) |
| Other assets | 764 |
| | 279 |
| | 1,533 |
|
| Accounts payable | 21,753 |
| | 2,783 |
| | 176 |
|
| Accrued liabilities | 27,095 |
| | 33,695 |
| | 9,918 |
|
| Deferred revenue | 18,845 |
| | 24,780 |
| | 18,298 |
|
| Operating lease liabilities | (13,830 | ) | | — |
| | — |
|
| Other liabilities | (590 | ) | | (1,139 | ) | | (24 | ) |
| Net cash provided by operating activities | 64,846 |
| | 72,130 |
| | 41,165 |
|
| Cash flows from investing activities | | | | | |
| Purchases of property and equipment | (27,767 | ) | | (27,123 | ) | | (19,497 | ) |
| Capitalized internal-use software | (16,526 | ) | | (11,421 | ) | | (7,420 | ) |
| Cash paid for business combination, net of cash acquired | (27,870 | ) | | (26,434 | ) | | — |
|
| Purchases of long-term investments | (135,557 | ) | | — |
| | — |
|
| Cash paid for acquisition of intangible assets | (89,060 | ) | | (18,470 | ) | | — |
|
| Restricted investments | — |
| | — |
| | 530 |
|
| Net cash used in investing activities | (296,780 | ) | | (83,448 | ) | | (26,387 | ) |
| Cash flows from financing activities | | | | | |
| Proceeds from issuance of convertible senior notes, net of issuance costs | — |
| | 449,457 |
| | — |
|
| Payments for capped call transactions and costs | — |
| | (49,910 | ) | | — |
|
| Repurchase of common stock | — |
| | (15,000 | ) | | — |
|
| Proceeds from issuance of stock in connection with stock plans | 29,827 |
| | 20,621 |
| | 25,495 |
|
| Taxes paid related to net share settlement of equity awards | (14,666 | ) | | (7,172 | ) | | (3,691 | ) |
| Payment of contingent consideration for business combination | (5,176 | ) | | — |
| | — |
|
| Repayment of financing obligations | (943 | ) | | (741 | ) | | (181 | ) |
| Repayment of debt | — |
| | — |
| | (14,840 | ) |
| Net cash provided by financing activities | 9,042 |
| | 397,255 |
| | 6,783 |
|
| Effect of exchange rate changes | 169 |
| | (800 | ) | | (724 | ) |
| Net (decrease) increase in cash, cash equivalents, and restricted cash | (222,723 | ) | | 385,137 |
| | 20,837 |
|
| Cash, cash equivalents, and restricted cash | | | | | |
| Beginning of year | 566,329 |
| | 181,192 |
| | 160,355 |
|
| End of year | $ | 343,606 |
| | $ | 566,329 |
| | $ | 181,192 |
|
| Supplemental disclosure of cash flow data: | | | | | |
| Cash paid for interest | $ | 189 |
| | $ | 40 |
| | $ | 116 |
|
| Cash paid for income taxes, net of refunds | $ | 996 |
| | $ | 433 |
| | $ | 216 |
|
| Non-cash investing and financing activities | | | | | |
| Cash held for future indemnity claims and other potential future payments | $ | 7,148 |
| | $ | 971 |
| | $ | — |
|
| Equipment and capitalized internal-use software purchased and unpaid at period end | $ | 5,215 |
| | $ | 4,785 |
| | $ | 1,699 |
|
| Common stock issued for acquisition of intangible assets | $ | 16,450 |
| | $ | — |
| | $ | — |
|
| Common stock issued for prepaid and deferred sales commission cost | $ | 345,000 |
| | $ | — |
| | $ | — |
|
| Reclassification from intangible assets to prepaid services | $ | — |
| | $ | 8,223 |
| | $ | — |
|
| Equipment acquired under financing obligations | $ | — |
| | $ | 4,513 |
| | $ | — |
|
| Earnout related matters, including issuance of common stock for milestone achievements | $ | — |
| | $ | 5,375 |
| | $ | 3,560 |
|
See accompanying notes to consolidated financial statements
RINGCENTRAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Description of Business and Summary of Significant Accounting Policies
Description of Business
RingCentral, Inc. (the “Company”) is a provider of software-as-a-service (“SaaS”) solutions that enables businesses to communicate, collaborate and connect. The Company was incorporated in California in 1999 and was reincorporated in Delaware on September 26, 2013.
Principles of Consolidation
The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”) and include the consolidated accounts of the Company and its wholly-owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.
Use of Estimates
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of revenues and expenses during the reporting period. The significant estimates made by management affect revenues, the allowance for doubtful accounts, valuation of long-term investments, deferred sales commission costs, goodwill, useful lives of intangible assets, share-based compensation, capitalization of internally developed software, return reserves, provision for income taxes, uncertain tax positions, loss contingencies, sales tax liabilities, and accrued liabilities. Management periodically evaluates these estimates and will make adjustments prospectively based upon the results of such periodic evaluations. Actual results could differ from these estimates.
Foreign Currency
The functional currency of the Company’s foreign subsidiaries is generally the local currency. Adjustments resulting from translating foreign functional currency financial statements into U.S. dollars are recorded as part of a separate component of stockholders’ equity and reported in the statements of comprehensive loss. Foreign currency transaction gains and losses are included in net loss for the period. All assets and liabilities denominated in a foreign currency are translated into U.S. dollars at the exchange rate on the balance sheet date. Revenues and expenses are translated at the average exchange rate during the period. Equity transactions are translated using historical exchange rates.
Cash and Cash Equivalents
The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Cash and cash equivalents are stated at fair value.
Allowance for Doubtful Accounts
For the years ended December 31, 2019 and 2018, a significant portion of revenues were realized from credit card transactions while the remaining revenues generated accounts receivable. The portion of revenues billed to customers through invoices with payment terms has increased year over year. The Company determines provisions based on historical loss patterns, the number of days that billings are past due, and an evaluation of the potential risk of loss associated with delinquent accounts.
Below is a summary of the changes in allowance for doubtful accounts for the years ended December 31, 2019, 2018 and 2017 (in thousands):
|
| | | | | | | | | | | | | | | |
| | Balance at beginning of year | | Provision, net of recoveries | | Write-offs | | Balance at end of year |
| Year ended December 31, 2019 | | | | | | | |
| Allowance for doubtful accounts | $ | 2,506 |
| | $ | 2,949 |
| | $ | 3,097 |
| | $ | 2,358 |
|
| Year ended December 31, 2018 | | | | | | | |
| Allowance for doubtful accounts | $ | 712 |
| | $ | 3,091 |
| | $ | 1,297 |
| | $ | 2,506 |
|
| Year ended December 31, 2017 | | | | | | | |
| Allowance for doubtful accounts | $ | 434 |
| | $ | 1,674 |
| | $ | 1,396 |
| | $ | 712 |
|
Long-Term Investments
Long-term investments consist of convertible and redeemable preferred securities in which the Company does not have a controlling interest or significant influence. These investments are recorded at fair value using both observable and unobservable inputs and the valuation requires judgment. These investments are reported at fair value in long-term investments in the Consolidated Balance Sheets. All gains and losses on these investments, realized and unrealized, are recognized in other income (expense), net in the Consolidated Statement of Operations.
Internal-Use Software Development Costs
The Company capitalizes qualifying internal-use software development costs that are incurred during the application development stage, provided that management with the relevant authority authorizes and commits to the funding of the project, it is probable the project will be completed, and the software will be used to perform the function intended. Costs related to preliminary project activities and post implementation activities are expensed as incurred. Capitalized internal-use software development costs are included in property and equipment and are amortized on a straight-line basis over their estimated useful lives.
For the years ended December 31, 2019 and 2018, the Company capitalized $18.5 million and $11.7 million, net of impairment, of internal-use software development costs, respectively. The carrying value of internal-use software development costs was $35.6 million and $22.2 million at December 31, 2019 and 2018, respectively.
Property and Equipment, net
Property and equipment, net is stated at cost, less accumulated depreciation and amortization. Depreciation and amortization is calculated on a straight-line basis over the estimated useful lives of those assets as follows:
|
| |
Computer hardware and software | 3 to 5 years |
Internal-use software development costs | 3 to 5 years |
Furniture and fixtures | 1 to 5 years |
Leasehold improvements | Shorter of the estimated lease term or useful life |
The Company evaluates the recoverability of property and equipment and intangible assets for possible impairment whenever events or circumstances indicate that the carrying amount of such assets or asset groups may not be recoverable. Recoverability of these assets or asset groups is measured by comparing the carrying amounts of such assets or asset groups to the future undiscounted cash flows that such assets or asset groups are expected to generate. If this evaluation indicates that the carrying amount of the assets or asset groups is not recoverable, the carrying amount of such assets or asset groups is reduced to its estimated fair value.
Maintenance and repairs are charged to expense as incurred.
Leases
Effective January 1, 2019, the Company adopted the requirements of Accounting Standards Update (“ASU”) 2016-02, Leases (Topic 842) ("Topic 842"), issued by the Financial Accounting Standards Board (“FASB”), as discussed in Note 2.
The Company determines if a contract is a lease or contains a lease at the inception of the contract and reassesses that conclusion if the contract is modified. All leases are assessed for classification as an operating lease or a finance lease. Operating lease right-of-use (“ROU”) assets are presented separately on the Company's Consolidated Balance Sheet. Operating lease liabilities are separated into a current portion, included within accrued liabilities on the Company's Consolidated Balance Sheet, and a non-current portion included within operating lease liabilities on the Company's Consolidated Balance Sheet. The Company does not have significant finance lease ROU assets or liabilities. ROU assets represent the Company's right to use an underlying asset for the lease term and lease liabilities represent its obligation to make lease payments arising from the lease. The Company does not obtain and control its right to use the identified asset until the lease commencement date.
The Company’s lease liabilities are recognized at the applicable lease commencement date based on the present value of the lease payments required to be paid over the lease term. Because the rate implicit in the lease is not readily determinable, the Company generally uses an incremental borrowing rate to discount the lease payments to present value. The estimated incremental borrowing rate is derived from information available at the lease commencement date. The Company factors in publicly available data for instruments with similar characteristics when calculating its incremental borrowing rates. The Company's ROU assets are also recognized at the applicable lease commencement date. The ROU asset equals the carrying amount of the related lease liability, adjusted for any lease payments made prior to lease commencement and lease incentives provided by the lessor. Variable lease payments are expensed as incurred and do not factor into the measurement of the applicable ROU asset or lease liability.
The term of the Company's leases equal the non-cancellable period of the lease, including any rent-free periods provided by the lessor, and also include options to renew or extend the lease (including by not terminating the lease) that the Company is reasonably certain to exercise. The Company establishes the term of each lease at lease commencement and reassesses that term in subsequent periods when one of the triggering events outlined in Topic 842 occurs. Operating lease cost for lease payments is recognized on a straight-line basis over the lease term.
The Company's lease contracts often include lease and non-lease components. For facility leases, the Company has elected the practical expedient offered by the standard to not separate lease from non-lease components and accounts for them as a single lease component. For the Company's other contracts that include leases, the Company accounts for the lease and non-lease components separately.
The Company has elected, for all classes of underlying assets, not to recognize ROU assets and lease liabilities for leases with a term of twelve months or less. Lease cost for short-term leases is recognized on a straight-line basis over the lease term. Additionally, for certain facility leases, the Company applies a portfolio approach, whereby it effectively accounts for the operating lease ROU assets and liabilities for multiple leases as a single unit of account because the accounting effect of doing so is not material.
Goodwill and Intangible Assets
Goodwill is tested for impairment at the reporting unit level at a minimum on an annual basis or more frequently when an event occurs or circumstances change that indicate that the carrying value may not be recoverable. Goodwill is considered impaired if the carrying value of the reporting unit exceeds its fair value. The Company conducted its annual impairment test of goodwill in the fourth quarter of 2019 and 2018 and determined that no adjustment to the carrying value of goodwill was required.
Intangible assets consist of purchased customer relationships and developed technology. Intangible assets are amortized over the period of estimated benefit using the straight-line method and estimated useful lives ranging from two to five years. No residual value is estimated for intangible assets.
Concentrations
Financial instruments that subject the Company to concentrations of credit risk consist primarily of cash and cash equivalents and accounts receivable. Although the Company deposits its cash with multiple financial institutions, its deposits, at times, may exceed federally insured limits. The Company’s accounts receivable are primarily derived from sales by resellers and to larger direct customers. The Company maintains an allowance for doubtful accounts for estimated potential credit losses. At December 31, 2019 and 2018, and for the years then ended, none of the Company’s customers accounted for more than 10% of total accounts receivable, total revenues, or subscription revenues. For the year ended December 31, 2017, 1 of the Company’s resellers accounted for 11% of the Company’s total revenues, and 12% of the Company’s subscription revenues.
During the years ended December 31, 2019, 2018 and 2017, the Company contracted a significant portion of its software development efforts from third-party vendors located in Russia and Ukraine. A cessation of services provided by these vendors could result in a disruption to the Company’s research and development efforts.
Revenue Recognition
The Company derives its revenues primarily from subscriptions, sale of products, and professional services. Revenues are recognized when control of these services is transferred to the customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those services.
The Company determines revenue recognition through the following steps:
identification of the contract, or contracts, with a customer;
identification of the performance obligations in the contract;
determination of the transaction price;
allocation of the transaction price to the performance obligations in the contract; and
recognition of revenue when, or as, the Company satisfies a performance obligation.
The Company recognizes revenues as follows:
Subscriptions revenue
Subscriptions revenue is generated from fees that provide customers access to one or more of the Company’s software applications and related services. These arrangements have contractual terms typically ranging from one month to five years and include recurring fixed plan subscription fees and variable usage-based fees for usage in excess of plan limits.
Arrangements with customers do not provide the customer with the right to take possession of the Company’s software at any time. Instead, customers are granted continuous access to the services over the contractual period. The Company transfers control evenly over the contractual period by providing stand-ready service. Accordingly, the fixed consideration related to subscription is recognized over time on a straight-line basis over the contract term beginning on the date the Company’s service is made available to the customer. The Company may offer its customer services for no consideration during the initial months. Such discounts are recognized ratably over the term of the contract.
Fees for additional minutes of usage in excess of plan limits are deemed to be variable consideration that meet the allocation exception for variable consideration as they are specific to the month that the usage occurs.
The Company’s subscription contracts typically allow the customers to terminate their services within the first 30 or 60 days and receive a refund for any amounts paid. After the end of the termination period, the contract is non-cancellable and the customer is obligated to pay for the remaining term of the contract. Accordingly, the Company considers the non-cancellable term of the contract to begin after the expiration of the termination period.
The Company has service-level agreements with customers warranting defined levels of uptime reliability and performance and these customers can get credits or refunds if the Company fails to meet those levels. If the services do not meet certain criteria, fees are subject to adjustment or refund representing a form of variable consideration.
The Company records reductions to revenue for estimated sales returns and customer credits at the time the related revenue is recognized. Sales returns and customer credits are estimated based on the Company’s historical experience, current trends and the Company’s expectations regarding future experience. The Company monitors the accuracy of its sales reserve estimates by reviewing actual returns and credits and adjusts them for its future expectations to determine the adequacy of its current and future reserve needs. If actual future returns and credits differ from past experience, additional reserves may be required.
Other revenue
Other revenue includes revenue generated from sale of pre-configured phones, professional implementation services, and phone rentals.
Phone revenue is recognized upon transfer of control to the customer which is generally upon shipment from the Company’s or its designated agents' warehouse. The amount of revenue recognized for products is adjusted for expected returns, which are estimated based on historical data.
The Company offers professional services to support implementation and deployment of its subscription services. Professional services do not result in significant customization of the product and are generally short-term in duration. The majority of the Company’s professional services contracts are on a fixed price basis and revenue is recognized when services are delivered.
Principal vs. Agent
A portion of the Company’s subscriptions and product revenues are generated through sales by resellers and carrier partners. When the Company controls the performance of contractual obligations to the customer, it records these revenues at the gross amount paid by the customer with amounts retained by the resellers recognized as sales and marketing expense. The Company assesses control of goods or services when it is primarily responsible for fulfilling the promise to provide the good or service, has inventory risk and has discretion in establishing the price. When a reseller assumes the majority of these factors in assessing control, the Company records the associated revenue at the net amount received from the reseller.
Deferred and prepaid sales commission costs
The Company capitalizes sales commission expenses and associated payroll taxes paid to internal sales personnel and resellers, who sell the Company’s solutions. The resellers are selling agents for the Company and earn sales commissions which are directly tied to the value of the contracts that the Company enters with the end-user customers. These sales commissions are incremental costs the Company incurs to obtain contracts with its end-user customers. The Company pays sales commissions on initial contracts and contracts for increased purchases with existing customers (expansion contracts). The Company does not pay sales commissions for contract renewals.
These sales commission costs are deferred and then amortized over the expected period of benefit, which is estimated to be five years. The Company has determined the period of benefit taking into consideration the expected subscription term and expected renewal periods of its customer contracts, the duration of its relationships with its customers considering historical and expected customer retention, technology and other factors. Amortization expense is included in sales and marketing expenses in the accompanying Consolidated Statement of Operations.
Cost of Revenues
Cost of subscriptions revenue primarily consists of costs of network capacity purchased from third-party telecommunications providers, network operations, costs to build out and maintain data centers, including co-location fees for the right to place the Company’s servers in data centers owned by third-parties, depreciation of the servers and equipment, along with related utilities and maintenance costs, personnel costs associated with customer care and support of the functionality of the Company’s platform and data center operations, including share-based compensation expenses, and allocated costs of facilities and information technology. Cost of subscriptions revenue is expensed as incurred.
Cost of other revenue is comprised primarily of the cost associated with purchased phones, shipping costs, costs of professional services, and allocated costs of facilities and information technology related to the procurement, management and shipment of phones. Cost of other revenue is expensed in the period product is delivered to the customer.
Share-Based Compensation
Share-based compensation expense resulting from options, restricted stock units (“RSUs”), performance-based awards, and employee stock purchase plan (“ESPP”) rights granted is measured as the grant date fair value of the award and is generally recognized using the straight-line attribution method over the requisite service period of the award, which is generally the vesting period. The Company estimates the fair value of stock options, ESPP rights, and performance-based awards using the Black-Scholes-Merton option-pricing model. The Company estimates the fair value of RSUs as the closing market value of its Class A Common Stock on the grant date. For awards with performance-based and service-based conditions, compensation cost is recognized over the requisite service period if it is probable that the performance condition will be satisfied. The expense for performance-based awards is evaluated each quarter based on the achievement of the performance conditions. The effect of a change in the estimated number of performance-based awards expected to be earned is recognized in the period those estimates are revised. Compensation expense is recognized net of estimated forfeiture activity, which is based on historical forfeiture rates.
Research and Development
Research and development expenses consist primarily of third-party contractor costs, personnel costs, technology license expenses, and depreciation associated with research and development equipment. Research and development costs are expensed as incurred.
Advertising Costs
Advertising costs, which include various forms of e-commerce such as search engine marketing, search engine optimization and online display advertising, as well as more traditional forms of media advertising such as radio and billboards, are expensed as incurred and were $59.9 million, $58.3 million, and $42.4 million for the years ended December 31, 2019, 2018 and 2017, respectively.
Convertible Debt
The Company bifurcates the debt and equity (the contingently convertible feature) components of its convertible debt instruments in a manner that reflects its nonconvertible debt borrowing rate at the time of issuance. The equity components of the convertible debt instruments are recorded within stockholders’ equity with an allocated issuance discount. The debt issuance discount is amortized to interest expense in the Consolidated Statement of Operations using the effective interest method over the expected term of the convertible debt.
Income Taxes
The Company accounts for income taxes using the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in operations in the period that includes the enactment date. The Company records a valuation allowance to reduce its deferred tax assets to the amount of future tax benefit that is more likely than not to be realized. As of December 31, 2019, except for deferred tax assets associated with its subsidiary in China, the Company recorded a full valuation allowance against all other net deferred tax assets due to its history of operating losses. The Company classifies interest and penalties on unrecognized tax benefits as income tax expense.
Segment Information
The Company has determined the chief executive officer is the chief operating decision maker. The Company’s chief executive officer reviews financial information presented on a consolidated basis for purposes of assessing performance and making decisions on how to allocate resources. Accordingly, the Company has determined that it operates in a single reportable segment.
Indemnification
Certain of the Company’s agreements with resellers and customers include provisions for indemnification against liabilities if its subscriptions infringe upon a third-party’s intellectual property rights. At least quarterly, the Company assesses the status of any significant matters and its potential financial statement exposure. If the potential loss from any claim or legal proceeding is considered probable and the amount or the range of loss can be estimated, the Company accrues a liability for the estimated loss. The Company has not incurred any material costs as a result of such indemnification provisions. The Company has not accrued any material liabilities related to such obligations as of December 31, 2019 and 2018.
Recent Accounting Pronouncements Not Yet Adopted
In June 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurements, which expands the disclosure requirements for Level 3 fair value measurements and expands disclosures for entities that calculate net assets value. This new standard is effective for the Company's interim and annual reporting periods beginning January 1, 2020, and early adoption permitted. The adoption of this amendment is not expected to have a material impact on the Company’s consolidated financial statements or disclosures.
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, which modifies the measurement of expected credit losses on certain financial instruments.
This new standard is effective for the Company's interim and annual reporting periods beginning January 1, 2020, and earlier adoption is permitted. The adoption of this amendment is not expected to have a material impact on the Company’s consolidated financial statements or disclosures.
In December 2019, the FASB issued ASU No. 2019-12, Accounting Standards Update (Topic 740): Simplifying the Accounting for Income Taxes. The ASU removes certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocation and calculating income taxes in interim periods. The ASU also adds guidance to reduce complexity in certain areas, including recognizing deferred taxes for goodwill and allocating taxes to members of a consolidated group. The ASU is effective for calendar year-end public entities on January 1, 2021. Entities may early adopt the ASU in any interim period for which financial statements have not yet been issued (or made available for issuance). The Company has not yet adopted the new guidance and is currently analyzing the tax impact, but does not anticipate any material impacts upon adoption.
Note 2. Impact of Recently Adopted Accounting Pronouncements
On January 1, 2019, the Company adopted Topic 842, which requires recognition of ROU assets and lease liabilities for most leases on the Company’s Consolidated Balance Sheet. The Company adopted Topic 842 using a modified retrospective transition approach as of the effective date as permitted by the amendments in ASU 2018-11. As a result, the Company was not required to adjust its comparative periods' financial information for effects of the standard or make the new required lease disclosures for the periods before the date of adoption (i.e., January 1, 2019). The Company elected the package of practical expedients which allowed the Company not to reassess (1) whether existing or expired contracts, as of the adoption date, contain leases, (2) the lease classification for existing leases, and (3) whether existing initial direct costs meet the new definition. The Company also elected the practical expedient to not separate lease and non-lease components for its facility leases, and to not recognize ROU assets and liabilities for short-term leases.
The standard had an impact on the Company’s Consolidated Balance Sheet but did not have a significant impact on its Consolidated Statement of Operations or Cash Flows. The impact on the Company's Consolidated Balance Sheet was the recognition of ROU assets and lease liabilities for operating leases.
The adoption of this new standard at January 1, 2019, resulted in the following changes:
assets increased by $33.5 million, representing the recognition of ROU assets; and
liabilities increased by $33.5 million, primarily representing the recognition of lease liabilities.
Note 3. Revenues and Cost of Revenue
Disaggregation of revenue
The following table provides information about disaggregated revenue by primary geographical markets:
|
| | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Primary geographical markets | | | | | |
| North America | 93 | % | | 95 | % | | 96 | % |
| Others | 7 | % | | 5 | % | | 4 | % |
| Total revenues | 100 | % | | 100 | % | | 100 | % |
The Company derived over 90%, and approximately 88% and 84% of subscription revenues from RingCentral Office product for the years ended December 31, 2019, 2018 and 2017, respectively.
Deferred revenue
During the year ended December 31, 2019, the Company recognized revenue of $88.3 million that was included in the corresponding deferred revenue balance at the beginning of the year.
Remaining performance obligations
The typical subscription term ranges from one month to five years. Contract revenue as of December 31, 2019 that has not yet been recognized was approximately $0.9 billion. This excludes contracts with an original expected length of less than one year. Of these remaining performance obligations, the Company expects to recognize revenue of 55% of this balance over the next 12 months and 45% thereafter.
Other revenues and cost of revenues
Other revenues are primarily comprised of product revenue from the sale of pre-configured phones, professional services, and phone rentals. Product revenues were $42.9 million, $34.4 million, and $26.0 million for the years ended December 31, 2019, 2018 and 2017, respectively. Cost of product revenues were $40.0 million, $30.9 million, and $25.0 million for the years ended December 31, 2019, 2018 and 2017, respectively.
Note 4. Financial Statement Components
Cash and cash equivalents consisted of the following (in thousands):
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Cash | $ | 46,295 |
| | $ | 80,457 |
|
| Money market funds | 297,311 |
| | 485,872 |
|
| Total cash and cash equivalents | $ | 343,606 |
| | $ | 566,329 |
|
The Company has no restricted cash balance as of December 31, 2019. The Company had an immaterial restricted cash balance, included in the cash balances above, as of December 31, 2018.
Accounts receivable, net consisted of the following (in thousands):
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Accounts receivable | $ | 114,745 |
| | $ | 82,740 |
|
| Unbilled accounts receivable | 17,603 |
| | 14,141 |
|
| Allowance for doubtful accounts | (2,358 | ) | | (2,506 | ) |
| Accounts receivable, net | $ | 129,990 |
| | $ | 94,375 |
|
Prepaid expenses and other current assets consisted of the following (in thousands):
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Prepaid expenses | $ | 16,249 |
| | $ | 14,805 |
|
| Inventory | 401 |
| | 199 |
|
| Other current assets | 8,704 |
| | 8,768 |
|
| Total prepaid expenses and other current assets | $ | 25,354 |
| | $ | 23,772 |
|
Property and equipment, net consisted of the following (in thousands):
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Computer hardware and software | $ | 120,841 |
| | $ | 103,766 |
|
| Internal-use software development costs | 48,419 |
| | 29,886 |
|
| Furniture and fixtures | 7,690 |
| | 5,896 |
|
| Leasehold improvements | 11,327 |
| | 6,863 |
|
| Property and equipment, gross | 188,277 |
| | 146,411 |
|
| Less: accumulated depreciation and amortization | (99,047 | ) | | (76,206 | ) |
| Property and equipment, net | $ | 89,230 |
| | $ | 70,205 |
|
Total depreciation and amortization expense related to property and equipment was $27.2 million, $18.9 million, and $15.4 million for the years ended December 31, 2019, 2018 and 2017, respectively.
The carrying value of goodwill is as follows (in thousands):
|
| | | |
| | December 31,
2019 |
| Balance at December 31, 2018 | $ | 31,238 |
|
| Connect First acquisition | 24,465 |
|
| Foreign currency translation adjustments | (425 | ) |
| Balance at December 31, 2019 | $ | 55,278 |
|
The carrying values of intangible assets are as follows (in thousands):
|
| | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | December 31, 2019 | | December 31, 2018 |
| | Estimated Lives | | Cost | | Accumulated Amortization | | Acquired Intangibles, Net | | Cost | | Accumulated Amortization | | Acquired Intangibles, Net |
| Customer relationships | 2 to 5 years | | $ | 21,245 |
| | $ | 8,178 |
| | $ | 13,067 |
| | $ | 20,121 |
| | $ | 4,460 |
| | $ | 15,661 |
|
| Developed technology | 3 to 5 years | | 123,547 |
| | 9,276 |
| | 114,271 |
| | 6,098 |
| | 2,279 |
| | 3,819 |
|
| Total acquired intangible assets | | | $ | 144,792 |
| | $ | 17,454 |
| | $ | 127,338 |
| | $ | 26,219 |
| | $ | 6,739 |
| | $ | 19,480 |
|
Amortization expense from acquired intangible assets for the years ended December 31, 2019, 2018 and 2017 was $10.7 million, $4.4 million and $0.8 million, respectively. Amortization of developed technology is included in cost of revenues expenses and amortization of customer relationships is included in sales and marketing expenses in the consolidated statements of operations. As of December 31, 2019, the weighted-average amortization period for developed technology is approximately 3.9 years and for customer relationships is approximately 2.8 years.
Estimated amortization expense for acquired intangible assets for the following five fiscal years and thereafter is as follows (in thousands):
|
| | | |
| 2020 | $ | 34,274 |
|
| 2021 | 34,016 |
|
| 2022 | 28,416 |
|
| 2023 | 16,477 |
|
| 2024 and thereafter | 14,155 |
|
| Total estimated amortization expense | $ | 127,338 |
|
Accrued liabilities consisted of the following (in thousands):
|
| | | | | | | |
| | December 31,
2019 | | December 31,
2018 |
| Accrued compensation and benefits | $ | 30,541 |
| | $ | 20,932 |
|
| Accrued sales, use, and telecom related taxes | 25,757 |
| | 19,609 |
|
| Accrued marketing | 17,505 |
| | 12,291 |
|
| Operating lease liabilities, short-term | 14,249 |
| | — |
|
| Other accrued expenses | 50,677 |
| | 47,855 |
|
| Total accrued liabilities | $ | 138,729 |
| | $ | 100,687 |
|
Deferred and Prepaid Sales Commission Costs
Amortization expense for the deferred and prepaid sales commission costs for the years ended December 31, 2019, 2018 and 2017 were $30.1 million, $19.8 million and $12.6 million, respectively. There was 0 impairment loss in relation to the costs capitalized for the periods presented.
Note 5. Fair Value of Financial Instruments
The Company measures and reports certain cash equivalents, including money market funds and certificates of deposit, in addition to its long-term investments at fair value in accordance with the provisions of the authoritative accounting guidance that addresses fair value measurements. This guidance establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available.
The hierarchy is broken down into three levels based on the reliability of the inputs as follows:
| |
Level 1: | Observable inputs that reflect unadjusted quoted prices in active markets for identical assets or liabilities. |
| |
Level 2: | Other inputs, such as quoted prices for similar assets or liabilities, quoted prices for identical or similar assets or liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the asset or liability. |
| |
Level 3: | Unobservable inputs that are supported by little or no market activity and that are based on management’s assumptions, including fair value measurements determined by using pricing models, discounted cash flow methodologies or similar techniques. |
The financial assets carried at fair value were determined using the following inputs (in thousands):
|
| | | | | | | | | | | | | | | |
| | Fair Value at December 31, 2019 | | Level 1 | | Level 2 | | Level 3 |
| Cash equivalents: | | | | | | | |
| Money market funds | $ | 297,311 |
| | $ | 297,311 |
| | $ | — |
| | $ | — |
|
| Noncurrent assets: | | | | | | | |
| Long-term investments | 132,188 |
| | — |
| | — |
| | 132,188 |
|
|
| | | | | | | | | | | | | | | |
| | Fair Value at December 31, 2018 | | Level 1 | | Level 2 | | Level 3 |
| Cash equivalents: | | | | | | | |
| Money market funds | $ | 485,872 |
| | $ | 485,872 |
| | $ | — |
| | $ | — |
|
| Noncurrent assets: | | | | | | | |
| Long-term investments | — |
| | — |
| | — |
| | — |
|
The Company’s other financial instruments, including accounts receivable, accounts payable, and other current liabilities, are carried at cost, which approximates fair-value due to the relatively short maturity of those instruments.
Convertible Senior Notes
As of December 31, 2019, the fair value of the 0% convertible senior notes due 2023 (the “Notes”) was approximately $929.2 million. The fair value was determined based on the quoted price for the Notes in an inactive market on the last trading day of the reporting period and is considered as Level 2 in the fair value hierarchy.
Long-Term Investments
As of December 31, 2019, the fair value of the Company's long-term investments in convertible and redeemable preferred stock was $132.2 million. The Company classifies its long-term investments as Level 3 in the fair value hierarchy based on the nature of the fair value inputs and judgment involved in the valuation process. These investments are reported at fair value in long-term investments in the Consolidated Balance Sheets. During fiscal year 2019, the Company's total unrealized gains (losses) recorded in other income (expense), net, was $6.6 million.
Note 6. Business Combinations, Strategic Partnerships, and Asset Acquisitions
2019 Business Combination
Connect First Acquisition
On January 14, 2019, the Company acquired the equity interests of Connect First, Inc. (“Connect First”), a cloud-based outbound/blended customer engagement platform for midsize and enterprise companies. The acquisition complements the Company’s current Customer Engagement portfolio to provide differentiated customer experiences.
The total purchase price of approximately $36.4 million consisted of cash of $29.3 million and $7.1 million held to cover indemnity claims made by the Company after the closing date. In connection with the acquisition, the Company granted $4.0 million in restricted stock units, which vest over four years.
The allocation of the purchase price of the assets acquired and liabilities assumed based on their estimated fair values was as follows (in thousands):
|
| | | |
| Cash and cash equivalents | $ | 1,427 |
|
| Other tangible assets acquired | 2,266 |
|
| Acquired intangible assets | 13,300 |
|
| Goodwill | 24,465 |
|
| Total assets acquired | 41,458 |
|
| Liabilities assumed | (5,013 | ) |
| Total consideration | $ | 36,445 |
|
The amortizable intangible assets have a weighted average useful life of three years. The purchase price exceeded the estimated fair value of the tangible and identifiable intangible assets and liabilities acquired and, as a result of the allocation, the Company recorded goodwill of $24.5 million, which is 0t deductible for tax purposes. The goodwill recognized is attributable primarily to contributions of the entity's technology to the overall corporate strategy, enhancements to the Company's contact center product offerings, and assembled workforce of the acquired business.
2019 Strategic Partnerships and Asset Purchases
In October 2019, the Company entered into certain agreements for a strategic partnership with Avaya Holdings Corp. (“Avaya”) and its subsidiaries, including Avaya Inc. In connection with the strategic partnership, the Company purchased $125.0 million aggregate principal amount of 3% convertible and redeemable preferred stock, with a conversion price of $16.00 per share, representing an approximately 6% position in Avaya on an as-converted basis. The Company also paid Avaya $345.0 million in the Company's common stock, predominantly for future commissions, which was capitalized and will be amortized over the expected benefit period. The transaction closed on October 31, 2019. The investment in preferred securities in which the Company does not have a controlling interest or significant influence are measured at fair value with changes recorded through other income (expense) in the Consolidated Statement of Operations. The advance payment represents prepayment for cost to obtain contracts with customers. The Company also purchased intellectual property rights, which have been capitalized as an intangible asset and will be amortized over the useful life of three years.
In the fourth quarter of 2019, the Company also entered into a commercial agreement with another unrelated strategic partner for a one-time upfront consideration towards acquisition of certain intellectual property rights and commercial arrangement. Under the commercial agreement the Company's strategic partner shall be engaged as its agent in marketing and sale of its product, which represents advance payment for cost to obtain contracts with customers.
In addition to the above transactions, the Company also separately entered into arrangements with unrelated third parties to acquire intellectual property rights during the fourth quarter of 2019.
In connection with the above transactions, the Company recorded in aggregate $105.5 million in acquired intangible assets relating to developed technology on the Consolidated Balance Sheet, which will be amortized over their respective useful life of three to five years. The Company also recorded $371.1 million as deferred and prepaid sales commission costs representing cost to obtain contracts with customers. The prepaid assets will be amortized over their useful life based on the pattern of benefit since they are considered to be incremental customer acquisition costs.
2018 Business Combination
Dimelo Acquisition
On October 22, 2018, the Company acquired Dimelo SA (“Dimelo”), a cloud-based digital customer engagement platform. The acquisition expanded the Company’s platform and enabled its customers to manage all their digital customer interactions through a single platform. The total purchase price of approximately $36.1 million consisted of cash of $30.7 million and the acquisition date fair value of contingent consideration of $5.4 million. In connection with the acquisition, the Company has agreed to grant $3.3 million in restricted stock units that vest over four years.
The contingent consideration was based on the achievement of specified performance targets through the end of the second quarter of 2019. The Company settled the contingent consideration in the fourth quarter of 2019 for approximately $7.0 million.
The allocation of the purchase price of the assets acquired and liabilities assumed based on their estimated fair values was as follows (in thousands):
|
| | | |
| Cash and cash equivalents | $ | 4,225 |
|
| Other tangible assets acquired | 3,289 |
|
| Acquired intangible assets | 12,208 |
|
| Goodwill | 21,995 |
|
| Total assets acquired | 41,717 |
|
| Liabilities assumed | (5,646 | ) |
| Total consideration | $ | 36,071 |
|
The amortizable intangible assets have a weighted average useful life of five years. The purchase price exceeded the estimated fair value of the tangible and identifiable intangible assets and liabilities acquired and, as a result of the allocation, the Company recorded goodwill of $22.0 million in connection with this transaction, which is not deductible for tax purposes. The goodwill recognized is attributable primarily to the contributions of the entity's technology to the overall corporate strategy and assembled workforce of the acquired business.
2018 Acquired Customer Base
On January 16, 2018, the Company acquired from AT&T the existing customer base of the RingCentral Office@Hand solution, which was previously sold by AT&T, for a total fair value of the purchase consideration of $24.0 million, of which $20.0 million was cash payment upon closing of the transaction. The transaction was accounted for as an asset acquisition. Subsequently on August 31, 2018, the Company and AT&T entered into a revised agreement through June 30, 2024, under which AT&T resumed reselling RingCentral solutions to its customers and will obtain control over the non-transitioned customer base. The value of the customer base that transitioned to the Company is reflected as a customer relationship asset of approximately $10.0 million, to be amortized over the expected useful life of five years.
Note 7. Convertible Senior Notes
In March 2018, the Company issued $460.0 million aggregate principal amount of 0% convertible senior notes due 2023 in a private placement, including the exercise in full of the over-allotment options of the initial purchasers. The Notes are senior unsecured obligations of the Company and do not bear regular interest, and the principal amount of the Notes does not accrete. The Notes may bear special interest under specified circumstances as outlined in the indenture governing the Notes (the “Indenture”) or if the Notes are not freely tradeable as required by the Indenture. The Notes will mature on March 15, 2023, unless earlier repurchased or redeemed by the Company or converted pursuant to their terms. The total net proceeds from the debt offering, after deducting initial purchase discounts and debt issuance costs, were approximately $449.5 million.
Each $1,000 principal amount of the Notes is initially convertible into 12.2782 shares of the Company’s Class A common stock par value $0.0001 (“Class A Common Stock”), which is equivalent to an initial conversion price of approximately $81.45 per share. The conversion rate is subject to adjustment upon the occurrence of certain specified events but will not be adjusted for any accrued and unpaid special interest. In addition, upon the occurrence of a make-whole fundamental change or a redemption period, each as defined in the Indenture, the Company will, in certain circumstances, increase the conversion rate by a number of
additional shares for a holder that elects to convert its Notes in connection with such make-whole fundamental change or during the relevant redemption period.
The Notes will be convertible at certain times and upon the occurrence of certain events in the future. Further, on or after December 15, 2022, until the close of business on the scheduled trading day immediately preceding the maturity date, holders of the Notes may convert all or a portion of their Notes regardless of these conditions.
Upon conversion, the Company will pay or deliver, as the case may be, cash, shares of Class A Common Stock, or a combination of cash and shares of Class A Common Stock, at the Company’s election. It is the Company’s current intent to settle the principal amount of the Notes with cash.
During the quarter ended December 31, 2019, the stock price condition allowing holders of the Notes to convert was met. As a result, holders have the option to convert their Notes at any time during the fiscal quarter ending March 31, 2020. There were no conversions of the Notes during the year ended December 31, 2019. The Notes may be convertible thereafter if one or more of the conversion conditions specified in the Indenture is satisfied during future measurement periods.
The Company may redeem the Notes, at its option, on or after September 20, 2020, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid special interest to, but excluding the redemption date, subject to certain conditions. No sinking fund is provided for the Notes. Upon the occurrence of a fundamental change (as defined in the Indenture) prior to the maturity date, holders may require the Company to repurchase all or a portion of the Notes for cash at a price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid special interest to, but excluding, the fundamental change repurchase date.
In accounting for the issuance of the Notes, the Company separated the Notes into liability and equity components. The carrying amount of the liability component was calculated by measuring the fair value of a similar debt instrument that does not have an associated convertible feature. The carrying amount of the equity component representing the conversion option was $101.1 million and was determined by deducting the fair value of the liability component from the par value of the Notes. The equity component is not remeasured as long as it continues to meet the conditions for equity classification. The excess of the principal amount of the liability component over its carrying amount (“debt discount”) is amortized to interest expense at an effective interest rate over the contractual terms of the Notes.
The net carrying amount of the liability component of the Notes was as follows (in thousands):
|
| | | |
| | December 31, 2019 |
| Principal | $ | 460,000 |
|
| Unamortized discount | (67,350 | ) |
| Unamortized issuance cost | (5,761 | ) |
| Net carrying amount | $ | 386,889 |
|
The net carrying amount of the equity component of the Notes was as follows (in thousands):
|
| | | |
| | December 31, 2019 |
| Proceeds allocated to the conversion option (debt discount) | $ | 101,141 |
|
| Issuance cost | (2,318 | ) |
| Net carrying amount | $ | 98,823 |
|
The following table sets forth the interest expense recognized related to the Notes (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Amortization of debt discount | $ | 18,920 |
| | $ | 14,872 |
| | $ | — |
|
| Amortization of debt issuance cost | 1,417 |
| | 1,046 |
| | — |
|
| Total interest expense related to the Notes | $ | 20,337 |
| | $ | 15,918 |
| | $ | — |
|
In connection with the offering of the Notes, the Company entered into privately-negotiated capped call transactions with certain counterparties (the “Capped Calls”). The Capped Calls each have an initial strike price of approximately $81.45 per share, subject to certain adjustments, which corresponds to the initial conversion price of the Notes. The Capped Calls have initial cap prices of $119.035 per share, subject to certain adjustments. The Capped Calls cover, subject to anti-dilution adjustments, approximately 5.6 million shares of Class A Common Stock. The Capped Calls are generally intended to reduce or offset the potential dilution to the Class A Common Stock upon any conversion of the Notes with such reduction or offset, as the case may be, subject to a cap based on the cap price. The Capped Calls settle in components commencing January 13, 2023 with the last component expiring on March 13, 2023. The Capped Calls are subject to either adjustment or termination upon the occurrence of specified extraordinary events affecting the Company, including a merger event, a tender offer, and a nationalization, insolvency or delisting involving the Company. In addition, the Capped Calls are subject to certain specified additional disruption events that may give rise to a termination of the Capped Calls, including changes in law, insolvency filings, and hedging disruptions. The Capped Call transactions are recorded in stockholders’ equity and are not accounted for as derivatives. The net cost of $49.9 million incurred to purchase the Capped Call transactions was recorded as a reduction to additional paid-in capital on the Company's Consolidated Balance Sheets.
Note 8. Leases
The Company primarily leases facilities for office and datacenter space under non-cancelable operating leases for its U.S. and international locations. As of December 31, 2019, non-cancelable leases expire on various dates between 2020 and 2029.
Generally, the non-cancelable leases include one or more options to renew, with renewal terms that can extend the lease term from one to five years or more. The Company has the right to exercise or forego the lease renewal options. The lease agreements do not contain any material residual value guarantees or material restrictive covenants.
As of December 31, 2019, the components of leases and lease costs are as follows (in thousands):
|
| | | |
| | December 31, 2019 |
| Operating leases | |
| Operating lease right-of-use assets | $ | 39,269 |
|
| | |
| Accrued liabilities | $ | 14,249 |
|
| Operating lease liabilities | 28,516 |
|
| Total operating lease liabilities | $ | 42,765 |
|
|
| | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 |
| Lease Cost | | | |
| Operating lease cost (a) | $ | 17,584 |
| | $ | — |
|
(a) Includes short-term leases and variable lease costs, which are immaterial.
The Company recognized rent expense on operating lease facilities of $6.9 million and $5.5 million for the years ended December 31, 2018 and 2017.
Maturities of operating lease liabilities as of December 31, 2019 are presentedbeneficial owner listed in the table below (in thousands):is c/o RingCentral, Inc., 20 Davis Drive, Belmont, California 94002.
|
| | | |
| Year Ending December 31, | |
| 2020 | $ | 16,164 |
|
| 2021 | 12,162 |
|
| 2022 | 7,650 |
|
| 2023 | 5,197 |
|
| 2024 | 1,354 |
|
| 2025 onwards | 5,883 |
|
| Total future minimum lease payments | 48,410 |
|
| Less: Imputed interest | (5,645 | ) |
| Present value of lease liabilities | $ | 42,765 |
|
33
|
| | |
| December 31, 2019 |
Lease Term and Discount Rate | |
Weighted-average remaining operating lease term (years) | 4.2 |
|
Weighted-average operating lease discount rate | 5 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Class A | Class B (+) | | % of Total Voting |
| | Shares | | % | Shares | | % | | Power † |
| 5% Stockholders: | | | | | | | | | |
| Entities affiliated with Vladimir Shmunis (1) | | 160,581 | | | * | 5,506,618 | | | 55.3 | | | 29.9 |
| Entities affiliated with Vlad Vendrow (2) | | 153,748 | | | * | 2,970,295 | | | 29.8 | | | 16.2 |
| Capital World Investors (3) | | 11,188,825 | | | 13.2 | | — | | | * | | 6.1 |
| Capital International Investors (4) | | 8,909,741 | | | 10.5 | | — | | | * | | 4.8 |
| Vanguard Group Inc.(5) | | 7,440,238 | | | 8.8 | | — | | | * | | 4.0 |
| Entities affiliated with Tiger Global (6) | | 4,951,000 | | | 5.8 | | — | | | * | | 2.7 |
| BlackRock, Inc. (7) | | 4,768,516 | | | 5.6 | | — | | | * | | 2.6 |
| Alkeon Capital Management, LLC (8) | | 4,265,093 | | | 5.0 | | — | | | * | | 2.3 |
| Named Executive Officers and Directors: | | | | | | | | | |
| Vladimir Shmunis (1) | | 160,581 | | | * | 5,506,618 | | | 55.3 | | | 29.9 |
| Anand Eswaran (9) | | 26,507 | | | * | — | | | * | | * |
| Mitesh Dhruv (10) | | 51,738 | | | * | — | | | * | | * |
| John Marlow (11) | | 159,975 | | | * | 273,714 | | | 2.7 | | | 1.6 |
| Praful Shah (12) | | 416,286 | | | * | — | | | * | | * |
| Mignon Clyburn (13) | | 451 | | | * | — | | | * | | * |
| Arne Duncan (14) | | 174 | | | * | — | | | * | | * |
| Kenneth Goldman (15) | | 10,730 | | | * | — | | | * | | * |
| Michelle McKenna (16) | | 2,251 | | | * | — | | | * | | * |
| Robert Theis (17) | | 19,978 | | | * | — | | | * | | * |
| Allan Thygesen (18) | | 12,211 | | | * | — | | | * | | * |
| Neil Williams (19) | | 10,935 | | | * | — | | | * | | * |
| All current executive officers and directors as a group (11 persons)(20) | | 404,650 | | | * | 5,780,332 | | | 58.0 | | | 31.5 |
|
| | | |
| | Year ended December 31, 2019 |
| Supplemental Cash Flow Information | |
| Operating cash flows resulting from operating leases: | |
| Cash paid for amounts included in the measurement of lease liabilities | $ | 15,709 |
|
| | |
| New ROU assets obtained in exchange of lease liabilities: | |
| Operating leases | $ | 18,584 |
|
As of December 31, 2019,(†) Represents the Company has additional operating leases of approximately $2.0 million that have not yet commenced and as such, have not yet been recognized on the Company’s Consolidated Balance Sheet. These operating leases are expectedvoting power with respect to commence in the first quarter of 2020 with lease terms up to three years.
Note 9. Commitments and Contingencies
Legal Matters
The Company is subject to certain legal proceedings described below, and from time to time may be involved in a variety of claims, lawsuits, investigations, and proceedings relating to contractual disputes, intellectual property rights, employment matters, regulatory compliance matters, and other litigation matters relating to various claims that arise in the normal course of business.
The Company determines whether an estimated loss from a contingency should be accrued by assessing whether a loss is deemed probable and can be reasonably estimated. The Company assesses its potential liability by analyzing specific litigation and regulatory matters using reasonably available information. The Company develops its views on estimated losses in consultation with inside and outside counsel, which involves a subjective analysis of potential results and outcomes, assuming various combinations of appropriate litigation and settlement strategies. Actual claims could settle or be adjudicated against the Company in the future for materially different amounts than the Company has accrued due to the inherently unpredictable nature of litigation. Legal fees are expensed in the period in which they are incurred.
TCPA Matter
On November 17, 2017, Joann Hurley (“Hurley”), filed a second amended complaint in an ongoing putative class action lawsuit pending in the United States District Court for the Southern District of West Virginia, adding the Company as a named defendant and alleging that the Company and other defendants violated the Telephone Consumer Protection Act (“TCPA”) and regulations promulgated thereunder by allegedly using an automated telephone dialing system to deliver prerecorded political messages to Hurley, an incumbent running for reelection, and others. Hurley alternatively alleged that the Company was vicariously liable for the actions of the other co-defendants. Hurley seeks statutory, compensatory, consequential, incidental and punitive damages, costs, and attorneys’ fees in connection with her claims. The Company was served with the second amended complaint on January 4, 2018. On March 23, 2018, the Company filed a motion to dismiss the complaint for lack of standing and failure to sufficiently state a claim on which relief may be granted. Hurley filed her opposition brief on April 6, 2018, and the Company filed its reply brief on April 13, 2018. On October 4, 2018, the district court issued its memorandum and opinion order granting in part and denying in part the Company’s motion to dismiss. The district court dismissed Hurley’s vicarious liability claim but allowed Hurley’s TCPA claim to proceed. The Company filed its answer and affirmative defenses to the second amended complaint on October 18, 2018. Plaintiff filed a motion to certify a class on July 9, 2019. The Company and another defendant filed oppositions to the motion, which have been fully briefed and is pending decision by the court. Discovery closed on October 25, 2019. The Company filed a motion for summary judgment on November 14, 2019. The plaintiff opposed the motion, which has been fully briefed and is pending decision by the court. The parties mediated the case before a private mediator on January 23, 2020, at which time a tentative settlement was achieved. The settlement will need to be approved by the court. Meanwhile, the court has issued an order holding the case in abeyance pending approval of the settlement. The Consolidated Financial Statements include an accrual for the estimated loss that is expected to occur.
Patent Infringement Matter
On April 25, 2017, Uniloc USA, Inc. and Uniloc Luxembourg, S.A. (together, “Uniloc”) filed in the U.S. District Court for the Eastern District of Texas two actions against the Company alleging infringement of U.S. Patent Nos. 7,804,948; 7,853,000; and 8,571,194 by RingCentral’s Glip unified communications application. The plaintiffs seek a declaration that the Company has infringed the patents, damages according to proof, injunctive relief, as well as their costs, attorney’s fees, expenses and interest. On October 9, 2017, the Company filed a motion to dismiss or transfer requesting that the case be transferred to the United States District Court for the Northern District of California. In response to the motion, plaintiffs filed a first amended complaint on October 24, 2017. The Company filed a renewed motion to dismiss or transfer on November 15, 2017. Although briefing on that motion has been completed, the motion has not yet been decided. On February 5, 2018, Uniloc moved to stay the litigation pending the resolution of certain third-party inter partes review proceedings (“IPRs”) before the United States Patent and Trademark Office. On February 9, 2018, the court stayed the litigation pending resolution of the IPRs without prejudice to or waiver of the Company’s motion to dismiss or transfer. This litigation is still in its earliest stages. Based on the information known by the Company as of the date of this filing and the rules and regulations applicable to the preparation of the Company’s Consolidated Financial Statements, it is not possible to provide an estimated amount of any such loss or range of loss that may occur. The Company intends to vigorously defend against this lawsuit.
Other matter
On June 14, 2019, the Company filed suit in the Superior Court of California, County of Alameda, against Bright Pattern, Inc. and 2 of its officers, alleging that the defendants negotiated a potential acquisition of Bright Pattern by RingCentral fraudulently and in bad faith. The Company seeks its costs incurred in negotiating under the Letter of Intent ("LOI") that the parties entered into and damages for lost opportunity as a result of forgoing another acquisition opportunity, and attorneys’ fees and costs. On August 26, 2019, Bright Pattern filed a cross-complaint against the Company and 2 of its executive officers alleging breach of the LOI as well as tort claims arising from the Company's allegedly inducing Bright Pattern to enter into the LOI and subsequent extensions while allegedly misstating the timeframe for the proposed transaction. As damages, Bright Pattern seeks audit fees it allegedly incurred, a $5 million break-up fee, its alleged “cash burn” during the negotiations, and unspecified lost opportunity damages. The Company filed a demurrer to Bright Pattern’s amended cross-complaint, as well as a related motion to strike. This litigation is still in early stages. Based on the information known by the Company as of the date of this filing and the rules and regulations applicable to the preparation of the Company’s Consolidated Financial Statements, it is not possible to provide an estimated amount of any loss or range of loss that may occur. The Company intends to vigorously prosecute and defend this lawsuit.
Employee Agreements
The Company has signed various employment agreements with executives and key employees pursuant to which if the Company terminates their employment without cause or if the employee terminates his or her employment for good reason following
a change of control of the Company, the employees are entitled to receive certain benefits, including severance payments, accelerated vesting of stock options and RSUs and continued COBRA coverage. As of December 31, 2019, no triggering events which would cause these provisions to become effective have occurred. Therefore, no liabilities have been recorded for these agreements in the consolidated financial statements.
Note 10. Stockholders’ Equity
In connection with the Company’s initial public offering (“IPO”), the Company reincorporated in Delaware on September 26, 2013. The Delaware certificate of incorporation provides for two classes of common stock: Class A and Class B common stock, both with a par value of $0.0001 per share. In addition, the certificate of incorporation authorizesall shares of undesignated preferred stock with a par value of $0.0001 per share. The terms of preferred stock are described below.
Preferred Stock
The board of directors may, without further action by the stockholders, fix the rights, preferences, privileges and restrictions of up to an aggregate of 100,000,000 shares of preferred stock in one or more series and authorizes their issuance. These rights, preferences, and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, any or all of which may be greater than the rights of the Class A and Class B common stock. As of December 31, 2019 and 2018, there were 100,000,000 shares of preferred stock authorized and 0 shares issued or outstanding.
Class A and Class B Common Stock
The Company has authorized 1,000,000,000 and 250,000,000 shares ofour Class A common stock and Class B common stock, for issuance. Holders of Class A common stock and Class B common stock have identical rights for matters submitted tovoting as a vote of the Company’s stockholders. Holders of Class A common stock are entitled to 1 vote persingle class. Each share of Class A common stock is entitled to one vote per share and holderseach share of Class B common stock areis entitled to 10 votes per share of Class B common stock. Holders of shares ofshare. The Class A common stock and Class B common stock vote together as a single class on all matters (including the election of directors) submitted to a vote of stockholders, except for specific circumstances that would adversely affect the powers, preferences, or rightsas may be otherwise required by applicable law.
(*) Represents beneficial ownership of a particular classless than 1%.
(1)Consists of common stock. Subject to preferences that may apply to any(i) 21,725 shares of preferred stock outstanding at the time, holders of Class A and Class B common stock share equally, identically and ratably, on a per share basis, with respect to any dividend or distribution of cash, property or shares of the Company’s capital stock. Holders of Class A and Class B common stock also share equally, identically, and ratably in all assets remaining after the payment of any liabilities and liquidation preferences and any accrued or declared but unpaid dividends, if any, with respect to any outstanding preferred stock at the time. Each share of Class B common stock is convertible at any time at the option of the holder into one share of Class A common stock. In addition, each sharestock held of Class B common stock will convert automatically to Class A common stock upon: (i) the date specifiedrecord by an affirmative vote or written consent of holders of at least 67% of the outstandingMr. Shmunis (ii) 5,492,107 shares of Class B common stock or (ii) the seven years anniversaryheld of the closing date of the initial public offering (October 2, 2020).
Shares of Class A common stock reserved for future issuance were as follows (in thousands):
|
| | |
| December 31, 2019 |
Preferred stock | 100,000 |
|
Class B common stock | 11,039 |
|
2013 Employee stock purchase plan | 3,919 |
|
2013 Equity incentive plan: | |
Outstanding options and restricted stock unit awards | 5,505 |
|
Available for future grants | 15,529 |
|
| 135,992 |
|
Note 11. Share-Based Compensation
A summary of share-based compensation expense recognized in the Company’s Consolidated Statements of Operations is as follows (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Cost of revenues | $ | 8,741 |
| | $ | 4,982 |
| | $ | 3,735 |
|
| Research and development | 23,132 |
| | 14,975 |
| | 9,550 |
|
| Sales and marketing | 38,325 |
| | 27,324 |
| | 16,015 |
|
| General and administrative | 31,156 |
| | 20,807 |
| | 12,760 |
|
| Total share-based compensation expense | $ | 101,354 |
| | $ | 68,088 |
| | $ | 42,060 |
|
A summary of share-based compensation expenserecord by award type is as follows (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Options | $ | 986 |
| | $ | 3,433 |
| | $ | 6,803 |
|
| Employee stock purchase plan rights | 4,176 |
| | 3,094 |
| | 2,177 |
|
| Restricted stock units | 96,192 |
| | 61,561 |
| | 33,080 |
|
| Total share-based compensation expense | $ | 101,354 |
| | $ | 68,088 |
| | $ | 42,060 |
|
Equity Incentive Plans
In September 2013, the Board adopted and the Company’s stockholders approved the 2013 Equity Incentive PlanELCA Fund I, L.P. (“2013 Plan”ELCA I”), which became effective on September 26, 2013. In connection with the adoption of the 2013 Plan, the Company terminated the 2010 Equity Incentive Plan (“2010 Plan”), under which stock options had been granted prior to September 26, 2013. The 2010 Plan was established in September 2010, when the 2003 Equity Incentive Plan (“2003 Plan”) was terminated. After the termination of the 2003 and 2010 Plans, no additional options were granted under these plans; however, options previously granted under these plans will continue to be governed by these plans and will be exercisable into; (iii) 5,926 shares of Class B common stock. In addition, options authorized to be granted understock held of record by ELCA Fund II, L.P. (“ELCA II”); (iv) 5,926 shares of Class B common stock held of record by ELCA Fund III, L.P. (“ELCA III”); (v) 1,385 shares of Class B common stock held of record by ELCA, LLC (collectively, along with ELCA I, ELCA II and ELCA III, the 2003 and 2010 Plans, including forfeitures“ELCA Funds”); (vi) 1,274 shares of previously granted awards, are authorized for grant under the 2013 Plan.
A totalClass B common stock held of 6,200,000record by Vladimir G. Shmunis & Sandra Shmunis TR UA June 9, 1998 Shmunis Revocable Trust (“Trust”); (vii) 46,668 shares of Class A common stock were originally reservedheld of record by Vladimir G Shmunis & Sandra Shmunis TR So Inclined Philanthropic Foundation (“SIPF”); (viii) 59,000 shares of Class A common stock held of record by The Shmunis Family Generations Trust under agreement, dated December 29, 2020 (“SFGT”) and (ix) 33,188 shares of Class A common stock issuable pursuant to stock awards releasable within 60 days of March 31, 2022. Vladimir Shmunis, our CEO and Chairman of the board of directors, and Sandra Shmunis, Mr. Shmunis’s wife, are the managing members of ELCA, LLC. ELCA, LLC is the general partner of ELCA I, ELCA II and ELCA III. Mr. Shmunis and Mrs. Shmunis are the trustees of Trust and SIPF, and the investment trustees of SFGT. As a result, and by virtue of the relationships described in this footnote, Mr. and Mrs. Shmunis may be deemed to share voting and dispositive power with respect to the shares held by ELCA I, Trust, SIPF and SFGT, and certain of the shares held by ELCA II and ELCA III. The address for these entities is c/o RingCentral, Inc., 20 Davis Drive, Belmont, California 94002.
(2)Consists of (i) 119,373 shares of Class A common stock held of record by Mr. Vendrow; (ii) 26,035 shares of Class A common stock held of record by The Vlad Vendrow Trust dated February 13, 2020 (the “Vendrow 2020 Trust”); (iii) 1,040,365 shares of Class B common stock held of record by the Vendrow 2020 Trust; (iv) 1,890 shares of Class A common stock held of record by the Regina Vendrow TR UA 10/30/2015 2015 Vendrow Children’s Trust FBO David G Vendrow; (v) 1,890 shares of Class A common stock held of record by the Regina Vendrow TR UA 10/30/2015 2015 Vendrow Children’s Trust FBO Edward B Vendrow; (vi) 1,890 shares of Class A common stock held of record by the Regina Vendrow TR UA 10/30/2015 2015 Vendrow Children’s Trust FBO Joshua L Vendrow; (vii) 157,110 shares of Class B common stock held of record by the Regina Vendrow TR UA 10/30/2015 2015 Vendrow Children’s Trust FBO David G Vendrow; (viii) 157,110 shares of Class B common stock held of record by the Regina Vendrow TR UA
10/30/2015 2015 Vendrow Children’s Trust FBO Edward B Vendrow; (ix) 157,110 shares of Class B common stock held of record by the Regina Vendrow TR UA 10/30/2015 2015 Vendrow Children’s Trust FBO Joshua L Vendrow; (x) 38,600 shares of Class B common stock held of record by the Regina Vendrow TR UA 12/01/2020 Viva Children’s Trust; (xi) 420,000 shares of Class B common stock held of record by Viva Investment Capital LLC; (xii) 1,000,000 shares of Class B common stock held of record by Viva Investment Capital II LLC; and (xiii) 2,670 shares of Class A common stock issuable pursuant to stock awards releasable within 60 days of March 31, 2022. As sole trustee of the Vendrow 2020 Trust, Mr. Vendrow may be deemed to hold voting and dispositive power with respect to the shares held by the Vendrow 2020 Trust. Mr. Vendrow may be deemed to hold voting and dispositive power with respect to the shares held by him and by his children and his children’s trusts. As the sole owner of Viva Investment Capital LLC and Viva Investment Capital II LLC, Mr. Vendrow may be deemed to hold voting and dispositive power with respect to the shares held thereby. The address for these entities is c/o RingCentral, Inc., 20 Davis Drive, Belmont, California 94002.
(3)Based on information reported by Capital World Investors (“CWI”) on its most recent Schedule 13G/A filed with the SEC on February 11, 2022. Of the shares of Class A common stock beneficially owned, CWI reported that it has sole dispositive power and sole voting power with respect to 11,188,825 shares. CWI is a division of Capital Research and Management Company (“CRMC”), as well as its investment management subsidiaries and affiliates Capital Bank and Trust Company, Capital International, Inc., Capital International Limited, Capital International Sarl, Capital International K.K., and Capital Group Private Client Services, Inc. CWI's divisions of each of the investment management entities collectively provide investment management services under the name “Capital World Investors.” The address for CWI is 333 South Hope Street, Los Angeles, California 90071.
(4)Based on information reported by Capital International Investors (“CII”) on its most recent Schedule 13G filed with the SEC on January 10, 2022. Of the shares of Class A common stock beneficially owned, CII reported that it has sole dispositive power and sole voting power with respect to 8,909,741 shares. CII is a division of Capital Research and Management Company (“CRMC”), as well as its investment management subsidiaries and affiliates Capital Bank and Trust Company, Capital International, Inc., Capital International Limited, Capital International Sarl, Capital International K.K. and Capital Group Private Client Services, Inc. CII's divisions of each of the investment management entities collectively provide investment management services under the name “Capital International Investors.” The address of CII is 333 South Hope Street, 55th Floor, Los Angeles, California 90071.
(5)Based on information reported by The Vanguard Group, Inc. on its most recent Schedule 13G/A filed with the SEC on February 9, 2022. Of the shares of Class A common stock beneficially owned, The Vanguard Group, Inc. reported that it has sole dispositive power with respect to 7,264,872 shares, shared dispositive power with respect to 175,366 shares, sole voting power with respect to 0 shares, and shared voting power with respect to 77,108 shares. The address for The Vanguard Group, Inc. is 100 Vanguard Blvd., Malvern, Pennsylvania 19355.
(6) Based on information reported by entities affiliated with Tiger Global on Schedule 13G/A filed with the SEC on February 14, 2022. Of the shares of Class A common stock beneficially owned, Tiger Global Performance, LLC, Tiger Global Management, LLC, Charles P. Coleman III, and Scott Shleifer each reported shared dispositive and shared voting power with respect to 4,951,000 shares. The address for all of the reporting entities and individuals is 9 West 57th Street 35th Floor New York, New York 10019.
(7)Based on information reported by BlackRock, Inc. on its most recent Schedule 13G/A filed with the SEC on February 3, 2022. Of the shares of Class A common stock beneficially owned, BlackRock, Inc. reported that it has sole dispositive power with respect to 4,768,516 shares and sole voting power with respect to 4,216,341 shares. The address for BlackRock, Inc. is 55 East 52nd Street, New York, New York 10055.
(8)Based on information reported by Alkeon Capital Management, LLC on Schedule 13G filed with the SEC on February 14, 2022. Of the shares of Class A common stock beneficially owned, Alkeon Capital Management, LLC and Panayotis D. Sparaggis each reported shared dispositive and voting power with respect to 4,265,093 shares. The address for each of the reporting persons is 350 Madison Avenue, 20th Floor, New York, New York 10017.
(9)Mr. Eswaran, our former President and Chief Operating Officer, resigned on December 14, 2021. Consists of 26,507 shares of Class A common stock held of record by Mr. Eswaran as of December 14, 2021.
(10)Mr. Dhruv, our former Chief Financial Officer, resigned on December 31, 2021. Consists of 51,738 shares of Class A common stock held of record by Mr. Dhruv as of December 31, 2021.
(11)Consists of (i) 122,939 shares of Class A common stock held of record by Mr. Marlow; (ii) 6,275 shares of Class A common stock held of record by the JEM Double Happiness 2018 Trust (the “Marlow Trust I”); (iii) 6,275 shares of Class A common stock held of record by the CAM Double Happiness 2018 Trust (the “Marlow Trust II”) (iv) 12,080 shares of Class A common stock held of record by the M&M Family 2020 Irrevocable Trust (the “Marlow Trust III”) (v) 11,196 shares of Class B common stock held of record by Mr. Marlow; (vi) 216,334 shares of Class B common stock held of record by the M&M Twice as Nice Trust (the “Marlow Trust IV” and, together with the Marlow Trust I, the Marlow Trust II and the Marlow Trust III, the “Marlow Trusts”); (vii) 42,320 shares of Class B common stock held of record by the Marlow Trust III; (viii) 3,864 shares of Class B common stock issuable pursuant to stock options exercisable within 60 days of March 31, 2022; and (ix) 12,406 shares of Class A common stock issuable pursuant to stock awards releasable within 60 days of March 31, 2022. As trustee of the Marlow Trusts, Mr. Marlow may be deemed to hold voting and dispositive power with respect to the shares held by the Marlow Trusts.
(12)Mr. Shah, our former Chief Strategy Officer, resigned on September 14, 2021. Consists of (i) 164,658 shares of Class A common stock held of record by Mr. Shah as of September 14, 2021, (ii) 99,256 shares of Class A common stock held in a trust for the benefit of Mr. Shah’s children, over which Mr. Shah and his spouse are co-trustees and may be deemed to hold voting and dispositive power, as of September 14, 2021, and (iii) 152,372 shares of Class A common stock issued to Mr. Shah pursuant to the exercise of outstanding stock options subsequent to his resignation.
(13)Consists of 451 shares of Class A common stock held of record by Ms. Clyburn.
(14)Consists of 174 shares of Class A common stock held of record by Mr. Duncan.
(15)Consists of (i) 4,630 shares of Class A common stock held of record by Mr. Goldman and (ii) 6,100 shares of Class A common stock held of record by GSW-GV, LLC.
(16)Consists of 2,251 shares of Class A common stock held of record by Ms. McKenna.
(17)Consists of 19,978 shares of Class A common stock held of record by Mr. Theis.
(18)Consists of 12,211 shares of Class A common stock held of record by Mr. Thygesen.
(19)Consists of 10,935 shares of Class A common stock held of record by Mr. Williams.
(20)Consists of (i) 343,981 shares of Class A common stock held of record by our directors and current executive officers; (ii) 60,669 shares of Class A common stock issuable pursuant to stock awards releasable within 60 days of March 31, 2022; (iii) 5,776,468 shares of Class B common stock held of record by our directors and current executive officers; and (iv) 3,864 shares of Class B common stock issuable pursuant to stock options exercisable within 60 days of March 31, 2022.
Equity Compensation Plan Information
The following table summarizes our equity compensation plan information as of December 31, 2021. Information is included for equity compensation plans approved by our stockholders. All of our equity compensation plans have been approved by our stockholders.
| | | | | | | | | | | | | | | | | | | | |
| Plan Category | | Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights | | Weighted Average Exercise Price of Outstanding Options, Warrants and Rights(1) | | Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in the first Column) |
| Equity compensation plans approved by stockholders | | | | | | |
| 2010 Equity Incentive Plan(2) | | 136,045 | | | $7.9266 | | — | |
| 2013 Equity Incentive Plan(3) | | 2,816,789 | | | $17.6837 | | 19,969,379 | |
| Amended and Restated Employee Stock Purchase Plan(4) | | — | | | — | | | 5,446,704 | |
| Equity compensation plans not approved by stockholders | | — | | | — | | | — | |
| Total | | 2,952,834 | | | $9.0694 | | 25,416,083 | |
(1)RSUs, which do not have an exercise price, are excluded in the calculation of weighted-average exercise price.
(2)As a result of our IPO and the adoption of our 2013 Equity Incentive Plan, we no longer grant awards under the 2010 Equity Incentive Plan; however, all outstanding awards under the 2010 Plan remain subject to the terms of the 2010 Plan. To the extent outstanding awards under the 2010 Plan are forfeited or are terminated unexercised and would otherwise have been returned to the share reserve under the 2010 Plan, the shares of Class B common stock subject to such awards instead will be available for future issuance as Class A common stock under the 2013 Equity Incentive Plan.
(3)Our 2013 Equity Incentive Plan provides that the number of shares of Class A common stock available for issuance under the 2013 Plan. The 2013Equity Incentive Plan includes an annualwill automatically increase on the first day of each fiscal year beginning with the 2014 fiscal year, in 2014,an amount equal to the least of:of (i) 6,200,000 shares, of Class A common stock; (ii) 5%five percent (5%) of the outstanding shares of all classes of common stock as of the company on the last day of the Company’s immediately preceding fiscal year;year, or (iii) such other amount as the boardBoard of directorsDirectors may determine. During
(4)Our Amended and Restated Employee Stock Purchase Plan (ESPP) provides that the year ended December 31, 2019, a totalnumber of 4,052,295 shares of Class A common stock were added to the 2013 Plan in connection with the annual automatic increase provision. As of December 31, 2019, a total of 15,528,723 shares remain available for grant under the 2013 Plan.
The plans permit the grant of stock options and other share-based awards, such as restricted stock units, to employees, officers, directors, and consultants by the board of directors. Option awards are generally granted with an exercise price equal to the fair market value of the Company’s Class A common stock at the date of grant. Option awards generally vest according to a graded vesting schedule based on four years of continuous service. On January 29, 2014, the board of directors approved an amendment to decrease the contractual term of all equity awards issued from the 2013 Plan from 10 years to 7 years for all awards granted after January 29, 2014. Certain option awards provide for accelerated vesting if there is a change in control (as defined in the option agreement) and early exercise of options prior to vesting (subject to the Company’s repurchase right).
A summary of option activity under all of the Company’s equity incentive plans at December 31, 2019 and changes during the period then ended is presented in the following table:
|
| | | | | | | | | | | | |
| | Number of Options Outstanding (in thousands) | | Weighted- Average Exercise Price Per Share | | Weighted- Average Contractual Term (in Years) | | Aggregate Intrinsic Value (in thousands) |
| Outstanding at December 31, 2016 | 7,384 |
| | $ | 10.59 |
| | 5.3 | | $ | 74,065 |
|
| Granted | 25 |
| | 23.99 |
| | | | |
| Exercised | (1,722 | ) | | 10.39 |
| | | | |
| Canceled/Forfeited | (401 | ) | | 16.04 |
| | | | |
| Outstanding at December 31, 2017 | 5,286 |
| | $ | 10.30 |
| | 4.2 | | $ | 201,480 |
|
| Granted | — |
| | — |
| | | | |
| Exercised | (1,138 | ) | | 8.17 |
| | | | |
| Canceled/Forfeited | (17 | ) | | 18.79 |
| | | | |
| Outstanding at December 31, 2018 | 4,131 |
| | $ | 10.86 |
| | 3.3 | | $ | 295,921 |
|
| Granted | — |
| | — |
| | | | |
| Exercised | (1,742 | ) | | 8.53 |
| | | | |
| Canceled/Forfeited | (132 | ) | | 2.73 |
| | | | |
| Outstanding at December 31, 2019 | 2,257 |
| | $ | 13.13 |
| | 2.5 | | $ | 351,428 |
|
| Vested and expected to vest as of December 31, 2019 | 2,259 |
| | $ | 13.13 |
| | 2.5 | | $ | 351,362 |
|
| Excercisable as of December 31, 2019 | 2,243 |
| | $ | 13.10 |
| | 2.5 | | $ | 349,002 |
|
There were 0 options granted for the year ended December 31, 2019 and 2018. The total intrinsic value of options exercised during year ended December 31, 2019, 2018 and 2017 were $215.5 million, $74.6 million, and $41.2 million, respectively.
Valuation Assumptions
The Company estimated the fair values of each option awarded on the date of grant using the Black-Scholes-Merton option-pricing model, which requires inputs including the fair value of common stock, expected term, expected volatility, risk-free interest rate, and dividend yield.
The weighted-average assumptions used in the option-pricing model and the resulting grant date fair value of stock options granted in 2017 were as follows:
|
| | | |
| | Year Ended |
| | December 31, 2017 |
| Expected term for employees (in years) | 4.4 |
|
| Expected term for non-employees (in years) | 4.6 |
|
| Expected volatility | 44 | % |
| Risk-free interest rate | 1.78 | % |
| Expected dividend yield | 0 | % |
| Grant date fair value of employee options | $ | 9.08 |
|
As of December 31, 2019 and 2018, there was an immaterial amount and $1.0 million of unrecognized share-based compensation expense, net of estimated forfeitures, related to non-vested stock option grants, which will be recognized on a straight-line basis over the remaining weighted-average vesting periods of approximately 0.3 years and 0.8 years, respectively.
Employee Stock Purchase Plan
The Company's Employee Stock Purchase Plan (“ESPP”) allows eligible employees to purchase shares of the Company’s Class A common stock at a discounted price, through payroll deductions of up to the lesser of 15% of their eligible compensation or the IRS allowable limit per calendar year. A participant may purchase a maximum of 3,000 shares during an offering period. The offering periods are for a period of six months and generally start on the first trading day on or after May 13th and November 13th of each year. At the end of the offering period, the purchase price is set at the lower of: (i) 90% of the fair value of the Company’s common stock at the beginning of the six month offering period and (ii) 90% of the fair value of the Company’s Class A common stock at the end of the six month offering period.
The ESPP provides for annual increases in the number of shares available for issuance under the ESPP will automatically increase on the first day of each fiscal year beginning with the 2014 fiscal year, in fiscal 2014,an amount equal to the least of:of (i) 1%1,250,000 shares, (ii) one percent (1%) of the outstanding shares of all classes of common stock of the company on the last day of the immediately preceding year; (ii) 1,250,000 shares;fiscal year, or (iii) such other amount as the Board of Directors may determine.
Item 13. Certain Relationships and Related Transactions, and Director Independence
In addition to the compensation arrangements, including employment, termination of employment and change in control arrangements discussed above in the sections titled “Directors, Executive Officers and Corporate Governance—Non-Employee Director Compensation” and “Executive Compensation,” the following is a description of each transaction since January 1, 2021 and each currently proposed transaction in which:
•we have been or are to be a participant;
•the amount involved exceeded or exceeds $120,000; and
•any of our directors, executive officers, or holders of more than 5% of our capital stock, or any immediate family member of, or person sharing the household with, any of these individuals, had or will have a direct or indirect material interest.
Investor Rights Agreement
We are party to an investor rights agreement which provides, among other things, that certain holders of our common stock, including stockholders affiliated with some of our directors, have the right to request that we file a registration statement or request that their shares be covered by a registration statement that we are otherwise filing.
Employment Arrangement
David Theis, who is the son of Rob Theis, a member of our board of directors and chairperson of our compensation committee, is employed by us in a non-executive capacity. His compensation for 2021 was comprised of cash salary payments of $219,732, RSUs with a grant date fair market value of $174,558 and benefits available to full-time employees. David Theis’s compensation is determined independently using Radford market data in the same manner as other employees with similar responsibilities and tenure at the Company. Rob Theis plays no personal role in determining his son’s compensation or reviewing his son’s performance.
Limitation of Officer and Director Liability and Indemnification Arrangements
Our certificate of incorporation and bylaws each provide that we will indemnify our directors and officers and may indemnify our employees and other agents, to the fullest extent permitted by the boardDelaware General Corporation Law, which prohibits our certificate of directors. Duringincorporation from limiting the year ended December 31, 2019,liability of our directors for the following:
•any breach of the director’s duty of loyalty to us or to our stockholders;
•acts or omissions not in good faith or that involve intentional misconduct or a totalknowing violation of 810,459 shareslaw;
•unlawful payment of Class A commondividends or unlawful stock were addedrepurchases or redemptions; or
•any transaction from which the director derived an improper personal benefit.
If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of our directors will be eliminated or limited to the ESPP Planfullest extent permitted by Delaware law, as so amended. Our certificate of incorporation will not eliminate a director’s duty of care and, in appropriate circumstances, equitable remedies, such as injunctive or other forms of non-monetary relief, remain available under Delaware law. This provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws or other state or federal laws. Under our bylaws, we will also be empowered to purchase insurance on behalf of any person whom we are required or permitted to indemnify.
In addition to the indemnification required in our certificate of incorporation and bylaws, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements provide for the indemnification of our directors and executive officers for certain expenses and liabilities incurred in connection with any action, suit, proceeding or alternative dispute resolution mechanism, or hearing, inquiry or investigation that may lead to the annual increase provision. At December 31, 2019,foregoing, to which they are a totalparty, or are threatened to be made a party, by reason of 3,918,712 sharesthe fact that they are or were availablea director, officer, employee, agent or fiduciary of our Company, or any of our subsidiaries, by reason of any action or inaction by them while serving as an officer, director, agent or fiduciary, or by reason of the fact that they were serving at our request as a
director, officer, employee, agent or fiduciary of another entity. Under the indemnification agreements, indemnification will only be provided in situations where the indemnified parties acted in good faith and in a manner they reasonably believed to be in or not opposed to our best interest, and with respect to any criminal action or proceeding, to situations where they had no reasonable cause to believe the conduct was unlawful. In the case of an action or proceeding by or in the right of our Company or any of our subsidiaries, no indemnification will be provided for issuanceany claim where a court determines that the indemnified party is prohibited from receiving indemnification. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our certificate of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities arising under the ESPP.Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.
The weighted-average assumptions usedOther than as described above under this section titled “Certain Relationships and Related Transactions, and Director Independence,” since January 1, 2021, we have not entered into any transactions, nor are there any currently proposed transactions, between us and a related party where the amount involved exceeds, or would exceed, $120,000, and in which any related person had or will have a direct or indirect material interest. We believe the terms of the transactions described above were comparable to value ESPP rightsterms we could have obtained in arm’s-length dealings with unrelated third parties.
Policies and Procedures for Related Party Transactions
We have adopted a policy that our executive officers, directors, nominees for election as a director, beneficial owners of more than 5% of any class of our common stock and any members of the immediate family of any of the foregoing persons are not permitted to enter into a related party transaction with us without the prior consent of our audit committee. Any request for us to enter into a transaction with an executive officer, director, nominee for election as a director, beneficial owner of more than 5% of any class of our common stock or any member of the immediate family of any of the foregoing persons, in which the amount involved exceeds $120,000 and such person would have a direct or indirect interest must first be presented to our audit committee for review, consideration and approval. In approving or rejecting any such proposal, our audit committee considers the material facts of the transaction, including, but not limited to, whether the transaction is on terms no less favorable than terms generally available to an unaffiliated third party under the Black-Scholes-Merton option-pricing modelsame or similar circumstances and the resulting offering grant date fair valueextent of ESPP rights grantedthe related person’s interest in the periods presented were as follows:
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Expected term (in years) | 0.5 |
| | 0.5 |
| | 0.5 |
|
| Expected volatility | 47 | % | | 42 | % | | 34 | % |
| Risk-free interest rate | 2.01 | % | | 2.31 | % | | 1.20 | % |
| Expected dividend yield | 0 | % | | 0 | % | | 0 | % |
| Offering grant date fair value of ESPP rights | $ | 33.66 |
| | $ | 18.07 |
| | $ | 9.52 |
|
As of December 31, 2019 and 2018, there was approximately $2.3 million and $1.5 million of unrecognized share-based compensation expense, net of estimated forfeitures, related to ESPP, which will be recognized on a straight-line basis over the remaining weighted-average vesting periods of approximately 0.4 years, respectively.
Restricted Stock Units
The 2013 Plan provides for the issuance of RSUs to employees, directors, and consultants. RSUs issued under the 2013 Plan generally vest over four years. A summary of activity of RSUs under the 2013 Plan at December 31, 2019 and changes during the periods then ended is presented in the following table:
|
| | | | | | | | | | |
| | Number of RSUs Outstanding (in thousands) | | Weighted- Average Grant Date Fair Value Per Share | | Aggregate Intrinsic Value (in thousands) |
| Outstanding at December 31, 2016 | 3,554 |
| | $ | 18.01 |
| | $ | 73,261 |
|
| Granted | 3,005 |
| | 30.20 |
| | |
| Released | (1,680 | ) | | 19.54 |
| | |
| Canceled/Forfeited | (598 | ) | | 20.91 |
| | |
| Outstanding at December 31, 2017 | 4,281 |
| | $ | 25.51 |
| | $ | 207,197 |
|
| Granted | 1,746 |
| | 67.64 |
| | |
| Released | (1,971 | ) | | 30.50 |
| | |
| Canceled/Forfeited | (495 | ) | | 34.99 |
| | |
| Outstanding at December 31, 2018 | 3,561 |
| | $ | 42.09 |
| | $ | 293,523 |
|
| Granted | 2,069 |
| | 122.35 |
| | |
| Released | (1,906 | ) | | 50.99 |
| | |
| Canceled/Forfeited | (475 | ) | | 60.38 |
| | |
| Outstanding at December 31, 2019 | 3,249 |
| | $ | 85.39 |
| | $ | 548,145 |
|
As of December 31, 2019 and 2018, there was a total of $198.3 million and $107.9 million of unrecognized share-based compensation expense, net of estimated forfeitures, related to RSUs, which will be recognized on a straight-line basis over the remaining weighted-average vesting periods of approximately 2.3 years and 2.4 years, respectively.
Bonus Plan
transaction. In December 2017, the Company'saddition, our board of directors (the "Board") adoptedhas delegated to each of our CEO, our CFO and our General Counsel, as appropriate, the Selective 2018 Key Employee Equity Bonus Plan (the "2018 KEEB Plan”),authority to review and approve, as applicable, any such transaction in which became effective on January 1, 2018, and in December 2018, the Board adoptedaggregate amount involved is expected to be less than $120,000, provided that such person charged with such review or approval is not the Selective 2019 Key Employee Equity Bonus Plan (the "2019 KEEB Plan" and together with the 2018 KEEB Plan the "KEEB Plans"), which became effective on January 1, 2019. Both of the KEEB Plans allow the recipients to earn fully vested shares of the Company’s Class A Common Stock upon the achievement of quarterly service and performance conditions. During the year
ended December 31, 2019 and 2018, 0.1 million and 0.1 million RSUs were issued under the KEEB Plans, respectively. The total requisite service period of each quarterly award is approximately 0.4 years.
The unrecognized share-based compensation expense was approximately $1.0 million, which will be recognized over the remaining service period of 0.1 years. The shares issued under the KEEB Plans will be issued from the reserve of shares available for issuance under the 2013 Plan.
Note 12. Income Taxes
Net loss before provision for (benefit from) income taxes consisted of the following (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| United States | $ | (64,822 | ) | | $ | (29,584 | ) | | $ | (5,883 | ) |
| International | 7,882 |
| | 3,521 |
| | 1,937 |
|
| Total net loss before provision for (benefit from) income taxes | $ | (56,940 | ) | | $ | (26,063 | ) | | $ | (3,946 | ) |
The provision for (benefit from) income taxes consisted of the following (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Current | | | | | |
| Federal | $ | — |
| | $ | — |
| | $ | — |
|
| State | 150 |
| | 61 |
| | 49 |
|
| Foreign | 464 |
| | 382 |
| | 256 |
|
| Total current | $ | 614 |
| | $ | 443 |
| | $ | 305 |
|
| Deferred | | | | | |
| Federal | $ | (2,765 | ) | | $ | — |
| | $ | — |
|
| State | (445 | ) | | — |
| | — |
|
| Foreign | (737 | ) | | (303 | ) | | (47 | ) |
| Total deferred | (3,947 | ) | | (303 | ) | | (47 | ) |
| Total income tax provision | $ | (3,333 | ) | | $ | 140 |
| | $ | 258 |
|
The provision for (benefit from) income tax differed from the amounts computed by applying the U.S. federal income tax rate to pretax loss as a result of the following (in thousands):
|
| | | | | | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Federal tax benefit at statutory rate | $ | (11,957 | ) | | $ | (5,473 | ) | | $ | (1,341 | ) |
| State tax, net of federal tax benefit | (233 | ) | | 48 |
| | 32 |
|
| Research and development credits | (5,312 | ) | | (3,284 | ) | | (707 | ) |
| Share-based compensation | (58,780 | ) | | (25,170 | ) | | (18,154 | ) |
| Other permanent differences | 3,149 |
| | 1,325 |
| | 814 |
|
| Change in U.S. federal Tax Rate | — |
| | — |
| | 33,254 |
|
| Foreign tax rate differential | (799 | ) | | (288 | ) | | (445 | ) |
| Net operating (gains) losses not recognized | 73,364 |
| | 32,982 |
| | (13,195 | ) |
| Release of valuation allowance associated with acquisitions | (2,765 | ) | | — |
| | — |
|
| Total income tax provision | $ | (3,333 | ) | | $ | 140 |
| | $ | 258 |
|
In general, it is the Company’s practice and intention to reinvest the earnings of its non-U.S. subsidiaries in those operations. Undistributed earnings of foreign subsidiaries are immaterial for all periods presented. Because the Company’s non-U.S. subsidiary earnings have previously been subject to the one-time transition tax on foreign earnings required by the 2017 Tax Act, any additional taxes due with respect to such earnings or the excess of the amount for financial reporting over the tax basis of its foreign investments would generally be limited to foreign withholding taxes and/or U.S. state income taxes.
The types of temporary differences that give rise to significant portions of the Company’s deferred tax assets and liabilities are as follows (in thousands):
|
| | | | | | | |
| | Year ended December 31, |
| | 2019 | | 2018 |
| Deferred tax assets | | | |
| Net operating loss and credit carry-forwards | $ | 196,930 |
| | $ | 109,812 |
|
| Research and development credits | 24,452 |
| | 16,380 |
|
| Sales tax liability | 157 |
| | 258 |
|
| Share-based compensation | 5,937 |
| | 5,435 |
|
| Accrued liabilities | 6,612 |
| | 5,135 |
|
| Gross deferred tax assets | 234,088 |
| | 137,020 |
|
| Valuation allowance | (180,090 | ) | | (94,118 | ) |
| Total deferred tax assets | 53,998 |
| | 42,902 |
|
| Deferred tax liabilities | | | |
| Convertible debt discount | (16,701 | ) | | (21,035 | ) |
| Deferred sales commissions | (28,601 | ) | | (18,253 | ) |
| Acquired intangibles | (3,857 | ) | | (2,670 | ) |
| Property and equipment | (6,731 | ) | | (3,573 | ) |
| Net deferred tax (liabilities) assets | $ | (1,892 | ) | | $ | (2,629 | ) |
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 (the “Act”) was signed into law making significant changes to the Internal Revenue Code. Changes include, but are not limited to, a corporate tax rate decrease from 35% to 21% effective for tax years beginning after December 31, 2017, the transition of U.S. international taxation from a worldwide tax system to a territorial system, and a one-time transition tax on the mandatory deemed repatriation of cumulative foreign earnings as of December 31, 2017.
related person. In connection with the acquisitioneach regularly scheduled meeting of Connect First on January 14, 2019,our audit committee, a net deferred tax liabilitysummary of $3.2 million was established, the most significant component of which iseach related party transaction approved in accordance with this paragraph shall be provided to the book/tax basis differences associated with the acquired technologyaudit committee for its review.
Item 14. Principal Accountant Fees and customer relationships. The net deferred tax liability from this acquisition created an additional source of income to realize deferred tax assets. As the Company continues to maintain a full valuation allowance against its deferred tax assets, this additional source of income resulted in the release of the Company’s previously recorded valuation allowance against deferred assets. Consistent with the applicable guidance the release of the valuation allowance of $3.2 million caused by the acquisition was recorded in the consolidated financial statements outside of acquisition accounting as a tax benefitServices
Professional Fees Paid to the Consolidated Statements of Operations.
As of December 31, 2019, the Company has federal net operating loss carryforwards of approximately $782.7 million, of which approximately $272.9 million expire between 2023 and 2037 and the remainder do not expire. As of December 31, 2019, the Company had state net operating loss carryforwards of approximately $675.6 million which will begin to expire in 2021. The Company also has research credit carryforwards for federal and California tax purposes of approximately $20.2 million and $15.7 million, respectively, available to reduce future income subject to income taxes. The federal research credit carryforwards will begin to expire in 2028 and the California research credits carry forward indefinitely.Independent Registered Public Accounting Firm
The Internal Revenue Code of 1986, as amended, imposes restrictions on the utilization of net operating losses in the event of an “ownership change” of a corporation. Accordingly, a company’s abilityfollowing table presents fees for professional audit services and other services rendered to use net operating losses may be limited as prescribed under Internal Revenue Code Section 382 (“IRC Section 382”). Events which may cause limitations in the amount of the net operating losses that theour Company may use in any one year include, but are not limited to, a cumulative ownership change of more than 50% over a three-year period. Utilization of the federal and state net operating losses may be subject to substantial annual limitation due to the ownership change limitations provided by the IRC Section 382 and similar state provisions.
The Company’s management believes that, based on a number of factors, it is more likely than not, that all or some portion of the deferred tax assets will not be realized; and accordingly, for the year ended December 31, 2019, the Company has provided a valuation allowance against the Company’s U.S. net deferred tax assets. The net change in the valuation allowanceKPMG for the years ended December 31, 20192020 and 2018 was an increase of $86.0 million, $18.2 million, respectively.2021.
| | | | | | | | | | | | | | |
| | 2020 | | 2021 |
| Audit Fees (1) | | $ | 3,072,766 | | | $ | 2,597,263 | |
| Audit Related Fees (2) | | $ | 22,500 | | | $ | 350,000 | |
| All Other Fees (3) | | $ | 1,780 | | | $ | 9,500 | |
| Total Fees | | $ | 3,097,046 | | | $ | 2,956,763 | |
In accordance with ASC 740-10, Income Taxes, the Company has adopted the accounting policy that interest and penalties recognized are classified as part of its income taxes.
The following shows the changes in the gross amount of unrecognized tax benefits as of December 31, 2019 (in thousands):
|
| | | | | | | | | | | |
| | 2019 | | 2018 | | 2017 |
| Unrecognized tax benefits, beginning of the year | $ | 6,029 |
| | $ | 3,004 |
| | $ | 2,460 |
|
| Increases related to prior year tax positions | — |
| | 1,050 |
| | — |
|
| Decreases related to prior year tax positions | (48 | ) | | — |
| | (3 | ) |
| Increases related to current year tax positions | 2,984 |
| | 1,975 |
| | 547 |
|
| Unrecognized tax benefits, end of year | $ | 8,965 |
| | $ | 6,029 |
| | $ | 3,004 |
|
The Company does not anticipate that its total unrecognized tax benefits will significantly change due to settlement of examination or the expiration of statute of limitations during the next 12 months.
The Company files U.S. and foreign income tax returns with varying statutes of limitations. Due to the Company’s net carry-over of unused operating losses and tax credits, all years from 2003 forward remain subject to future examination by tax authorities.
Note 13. Basic and Diluted Net Loss Per Share
Basic net loss per share is computed by dividing the net loss by the weighted-average number of shares of common stock outstanding during the period, less the weighted-average unvested common stock subject to repurchase or forfeiture as they are not deemed to be issued for accounting purposes. Diluted net loss per share is computed by giving effect to all potential shares of common stock, stock options, restricted stock units, ESPP, and convertible senior notes, to the extent dilutive. For the periods presented, all such common stock equivalents have been excluded from diluted net loss per share as the effect to net loss per share would be anti-dilutive.
The following table sets forth the computation of the Company’s basic and diluted net loss per share during the years ended December 31, 2019, 2018 and 2017 (in thousands, except per share data):
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Numerator | | | | | |
| Net loss | $ | (53,607 | ) | | $ | (26,203 | ) | | $ | (4,204 | ) |
| Denominator | | | | | |
Weighted-average common shares for basic and diluted net loss per share | 83,130 |
| | 79,500 |
| | 76,281 |
|
| Basic and diluted net loss per share | $ | (0.64 | ) | | $ | (0.33 | ) | | $ | (0.06 | ) |
The following table summarizes the potentially dilutive common shares that were excluded from diluted weighted-average common shares outstanding because including them would have had an anti-dilutive effect (in thousands):
|
| | | | | | | | |
| | Year Ended December 31, |
| | 2019 | | 2018 | | 2017 |
| Shares of common stock issuable under equity incentive plans outstanding | 6,832 |
| | 8,943 |
| | 10,806 |
|
| Convertible senior notes | 1,905 |
| | 79 |
| | — |
|
| Potential common shares excluded from diluted net loss per share | 8,737 |
| | 9,022 |
| | 10,806 |
|
Since the Company expects to settle the principal amount of its outstanding convertible senior notes in cash and any excess in cash or shares of the Company’s Class A Common Stock, the Company uses the treasury stock method for calculating any potential dilutive effect of the conversion spread on diluted net income per share, if applicable. The conversion spread will have a dilutive impact on diluted net income per share of common stock when the average market price of the Company’s Class A Common Stock for a given period exceeds the conversion price of $81.45 per share for the Notes.
Note 14. Geographic Concentrations
Revenues by geographic location are based on the billing address of the customer. More than 90% of the Company’s revenues are from the U.S. for fiscal years ended December 31, 2019, 2018, and 2017. NaN other individual country exceeded 10% of total revenues for fiscal years ended December 31, 2019, 2018, and 2017.
Long-lived assets by geographic location is based on the location of the legal entity that owns the asset. As of December 31, 2019 and 2018, approximately 89% and 67% of the Company’s consolidated long-lived assets, respectively, were located in the U.S. France represented 8% and 26% of the Company’s consolidated long-lived assets, including fair value adjustments relating to the acquisition of Dimelo. There was 0 other single country outside of the U.S. representing 10% or more of the Company’s consolidated long-lived assets as of December 31, 2019 and 2018.
Note 15. 401(k) Plan
The Company has a qualified defined contribution plan under Section 401(k) of the Internal Revenue Code covering eligible employees. Substantially all of the U.S. employees are eligible to make contributions to the 401(k) plan. On July 1, 2017, the Company implemented a 401(k) employer match, based on the amount of the employees’ contributions subject to certain limitations. Employer contributions were $4.1 million, $2.9 million, and $1.1 million for the years ended December 31, 2019, 2018 and 2017.
Note 16. Selected Quarterly Financial Data (unaudited)
The following tables set forth selected unaudited quarterly consolidated statements of operations data for each of the eight quarters in the years ended December 31, 2019 and 2018 (in thousands except per share data):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Dec 31, 2019 | | Sep 30, 2019 | | Jun 30, 2019 | | Mar 31, 2019 | | Dec 31, 2018 | | Sep 30, 2018 | | Jun 30, 2018 | | Mar 31, 2018 |
| Consolidated Statements of Operations Data | | | | | | | | | | | | | | | |
| Revenues | $ | 252,865 |
| | $ | 233,352 |
| | $ | 215,152 |
| | $ | 201,489 |
| | $ | 188,624 |
| | $ | 173,825 |
| | $ | 160,832 |
| | $ | 150,343 |
|
| Gross profit | 185,992 |
| | 173,647 |
| | 161,522 |
| | 150,654 |
| | 144,509 |
| | 134,551 |
| | 122,766 |
| | 114,669 |
|
| Operating loss | (20,369 | ) | | (10,663 | ) | | (7,180 | ) | | (7,463 | ) | | (3,404 | ) | | (7,027 | ) | | (4,654 | ) | | (1,351 | ) |
| Net loss | (25,257 | ) | | (12,749 | ) | | (9,243 | ) | | (6,358 | ) | | (5,678 | ) | | (9,518 | ) | | (8,291 | ) | | (2,716 | ) |
| Net loss per share, basic and diluted | $ | (0.30 | ) | | $ | (0.15 | ) | | $ | (0.11 | ) | | $ | (0.08 | ) | | $ | (0.07 | ) | | $ | (0.12 | ) | | $ | (0.10 | ) | | $ | (0.03 | ) |
Note 17. Related-Party Transactions
In the ordinary course of business, the Company made purchases from Google Inc., at which one of the Company’s directors serves as President, Americas. Total payables to Google Inc. at December 31, 2019 and 2018 were $1.5 million and $1.2 million, respectively. Total expenses incurred from Google Inc. in 2019, 2018, and 2017 were $18.7 million, $18.8 million, and $15.4 million, respectively.
| | |
ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None.
| |
ITEM 9A. | CONTROLS AND PROCEDURES |
Evaluation(1)“Audit Fees” consist of Disclosure Controls and Procedures
Under the supervision andprofessional services rendered in connection with the participationaudit of our management,annual financial statements, including our chief executive officer and chiefaudited financial officer, we conductedstatements, an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as of the end of the period covered by this Annual Report on Form 10-K.
In designing and evaluating our disclosure controls and procedures, management recognizes that any disclosure controls and procedures, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply its judgment in evaluating the benefits of possible controls and procedures relative to their costs.
Based on management’s evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures are designed to, and are effective to, provide assurance at a reasonable level that the information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosures.
Management’s Annual Report on Internal Controls Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we conducted an evaluationaudit of the effectiveness of our internal control over financial reporting, asthe review of December 31, 2019 basedour quarterly financial statements presented in our quarterly report on the guidelines established in the Internal Control—Integrated Framework (2013 framework) issuedForm 10-Q, and services that are normally provided by the Committeeindependent registered public
accountants in connection with statutory and regulatory filings or engagements for those fiscal years, including statutory audits of the Treadway Commission (“COSO”). Our internal control over financial reporting includes policiesRingCentral CH GmbH and procedures that provide reasonable assurance regarding the reliabilityRingCentral France SAS, our wholly owned subsidiaries in Switzerland and France, respectively.
(2)“Audit Related Fees” consist of financial reporting andprofessional services provided in connection with the preparation of financialcertain registration statements for external reporting purposesand related securities offering matters, and acquisitions and strategic investments made in accordance with U.S. generally accepted accounting principles.2020.
Based(3)“All Other Fees” consist of an annual license fee for an accounting database subscription.
Audit Committee Policy on Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm
Consistent with requirements of the results ofSEC and the Public Company Accounting Oversight Board (the “PCAOB”) regarding auditor independence, our evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2019. In evaluating the effectiveness of our internal controls over financial reporting as of December 31, 2019, our management excluded Connect First, Inc. (“Connect First”) in accordance with the guidance issued by the Securities and Exchange Commission, since it was acquired on January 14, 2019. Connect First’s assets, excluding acquisition method fair value adjustments, as of December 31, 2019, and revenuesaudit committee is responsible for the period from January 14, 2019 through December 31, 2019, were approximately 3%appointment, compensation and oversight of our consolidated total assets and approximately 1%the work of our consolidated total revenues, in our consolidated financial statements.
The effectiveness of our internal control over financial reporting as of December 31, 2019 has been audited by KPMG LLP, an independent registered public accounting firm, as stated in its report which is included in Item 8firm. In recognition of this Annual Report on Form 10-K.responsibility, our audit committee has established a policy for the pre-approval of all audit and permissible non-audit services provided by the independent registered public accounting firm. These services may include audit services, audit-related services, tax services and other services.
Changes in Internal Control Over Financial Reporting
There are no changes inAll services were pre-approved by our internal control over financial reporting identified in connectionaudit committee, which concluded that the provision of such services by KPMG, was compatible with the evaluation requiredmaintenance of that firm’s independence in the conduct of its auditing functions. The audit committee’s pre-approval policy provides for the pre-approval of audit, audit-related and tax services specifically described by Rule 13a-15(d)the audit committee on an annual basis, and 15d-15(d)unless a type of service is pre-approved under the policy, it will require separate pre-approval by the audit committee if it is to be provided by the independent registered public accounting firm. The policy authorizes the audit committee to delegate to one or more of its members pre-approval authority with respect to permitted services.
Part IV
Item 15. Exhibits and Financial Statement Schedules
The following documents are filed as part of this report:
Financial Statements
No financial statements are filed with this Amendment. The financial statements and notes thereto were included as part of the Exchange Act that occurred duringOriginal Report.
All schedules are omitted as the quarter ended December 31, 2019, that have materially affected,required information is either not present, not present in material amounts or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations on Effectiveness of Controls
Our management, including our chief executive officer and chief financial officer, do not expect that our disclosure controls or our internal control over financial reporting will prevent all errors and all fraud. A control system, no matter how well
conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any,presented within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of a simple errorconsolidated financial statements or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people or by management override of the controls. The design of any system of controls is also based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.related notes.
EXHIBIT INDEX
| | | | | |
ITEM 9B. | OTHER INFORMATION |
None.
PART III
| |
ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
The information concerning our directors, compliance with Section 16(a) of the Exchange Act, our Audit Committee and any changes to the process by which stockholders may recommend nominees to the Board required by this Item are incorporated herein by reference to information contained in the Proxy Statement to be filed with the SEC pursuant to Regulation 14A not later than 120 days after the fiscal year to which this report relates.
The information concerning our executive officers required by this Item is incorporated herein by reference to information contained in the Proxy Statement to be filed pursuant to Regulation 14A.
We have adopted a code of ethics, our Code of Conduct, which applies to all employees, including our principal executive officers, our principal financial officer, and all other executive officers. The Code of Conduct is available on our Web site at www.ringcentral.com within the investor relations section. A copy may also be obtained without charge by contacting Investor Relations, RingCentral, Inc., 20 Davis Drive, Belmont, California 94002 or by calling (650) 472-4100.
We plan to post on our Web site at the address described above any future amendments or waivers of our Code of Conduct.
| |
ITEM 11. | EXECUTIVE COMPENSATION |
The information required by this Item is incorporated herein by reference to information contained in the Proxy Statement to be filed pursuant to Regulation 14A.
| |
ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information required by this Item with respect to security ownership of certain beneficial owners and management is incorporated herein by reference to information contained in the Proxy Statement to be filed pursuant to Regulation 14A.
The following chart sets forth certain information as of December 31, 2019, with respect to our equity compensation plans, specifically our 2003 Equity Incentive Plan (the “2003 Plan”), 2010 Equity Incentive Plan (the “2010 Plan”), 2013 Equity Incentive Plan (the “2013 Plan”), and our Amended and Restated Employee Stock Purchase Plan (the “ESPP”). Each of the 2003 Plan, the 2010 Plan, the 2013 Plan and the ESPP has been approved by our stockholders.
|
| | | | | | | | | | |
| | | Equity Compensation Plan Information |
| Plan Category | | Number of securities to be issued upon exercise of outstanding options, warrants and rights | | Weighted average exercise price of outstanding options, warrants and rights | | Number of securities remaining available for future issuance under equity compensation plans (1) |
| Equity compensation plans approved by security holders | | 5,580,627 |
| | $ | 57.06 |
| | 19,447,435 |
|
Equity Compensation Plan Information
| |
(1) | Includes shares reserved for issuance under the 2013 Plan and the ESPP. The number of shares reserved for issuance under the 2013 Plan automatically increases on January 1st of each year by the lesser of (i) 6,200,000 shares, or (ii) five percent (5%) of the number of shares of our common stock outstanding on the last day of the immediately preceding fiscal year. During the year ended December 31, 2019, a total of 4,052,295 shares of Class A common stock were added to the 2013 Plan in connection with the annual automatic increase provision. In addition, the number of shares reserved for issuance under the 2013 Plan is increased from time to time in an amount equal to the number of shares subject to outstanding options under the 2003 and 2010 Plans that are subsequently forfeited or terminate for any other reason before being exercised and unvested shares that are forfeited pursuant to the 2003 and 2010 Plans. The number of shares reserved for issuance under the ESPP automatically increases on January 1st of each year by the lesser of (i) 1,250,000 shares, or (ii) one percent (1%) of the number of shares of our common stock outstanding on the last trading day of the immediately preceding fiscal year. During the year ended December 31, 2019, a total of 810,459 shares of Class A common stock were added to the 2013 ESPP Plan in connection with the annual increase provision.
|
| |
ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE |
The information required by this Item is incorporated herein by reference to information contained in the Proxy Statement to be filed pursuant to Regulation 14A.
| |
ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The information required by this Item is incorporated herein by reference to information contained in the Proxy Statement to be filed pursuant to Regulation 14A.
| |
Item 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
(a)Exhibits. The following exhibits are included herein or incorporated herein by reference:
|
| |
Exhibit Number | Description |
| |
3.1 | |
| |
3.2 | |
| |
4.1 | |
| |
4.2 | |
| |
4.3 | |
| |
4.4 | |
| |
4.5 | |
| |
10.1+ | |
| |
10.2+ | |
| |
10.3+ | |
| |
10.4+ | |
| |
10.5+ | |
| |
10.6+ | |
| |
10.7+ | |
| |
10.8+ |
|
| |
10.9+ | |
| |
10.10+ | |
| |
10.11+ | |
| |
10.12+ | |
| |
|
| |
Exhibit
Number
| Description |
10.13+ | |
| |
10.14+ | |
| |
10.15+ | |
| |
10.16 | |
| |
10.17 | Office Lease, dated September 25, 2014, by and between the Registrant and Helen M. Raiser, Trustee of the JHR Marital Trust under Trust Agreement dated October 2, 1969, as amended, Helen M. Raiser, Trustee of the JHR Bypass Trust under Trust Agreement dated October 2, 1969, as amended, Harvey E. Chapman, Jr., Trustee of the Harvey E. Chapman, Jr. Living Trust under Trust Agreement dated July 17, 2006, and Colleen C. Badell, Trustee of the Colleen C. Badell Living Trust under Trust Agreement dated July 17, 2006, as tenants in common (filed as Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014, filed on November 3, 2014, and incorporated herein by reference). |
| |
10.18 | |
| |
10.19 | |
| |
10.20 | |
| |
10.21 | |
| |
10.22 | |
| |
10.23 | |
| |
10.24* | |
| |
21.1 | |
| |
23.1 | |
| |
24.1 | |
| |
31.1 | 2002 |
| |
31.2 | |
| |
32.1 | |
| |
32.2 | |
| |
101.INS | Inline XBRL Instance Document. |
| |
101.SCH | Inline XBRL Taxonomy Extension Schema Document. |
| |
101.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document. |
|
| |
Exhibit
Number
| Description |
| |
101.DEF | Inline XBRL Taxonomy Extension Definition Linkbase Document. |
| |
101.LAB | Inline XBRL Taxonomy Extension Label Linkbase Document. |
| |
101.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase Document. |
| |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).XBRL) |
+ Indicates a management or compensatory plan
* Certain identified information has been omitted pursuant to
Item 601(b)(10) of Regulation S-K because such information is both (i) not material and (ii) would likely cause competitive harm to the Registrant if publicly disclosed.
| |
(b) | Financial Statements. Our consolidated financial statements are included under Part II, Item 8 of this Annual Report on Form 10-K.
|
| |
(c) | Financial Statement Schedules. All financial statement schedules are omitted because they are not applicable or the information is included in the Registrant’s consolidated financial statements or related notes.
|
16. Summary
PART IV.None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrantregistrant has duly caused this Annual Report on Form 10-Kreport to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Belmont, State of California, on this 26th day of February 2020.
| | | | | |
| RINGCENTRAL, INC. |
| |
| Date: April 28, 2022 | RINGCENTRAL, INC. |
| |
Date: February 26, 2020 | /s/ Vladimir Shmunis |
| Vladimir Shmunis |
| Chairman and Chief Executive Officer
(Principal Executive Officer)
|
| |
Date: February 26, 2020April 28, 2022 | /s/ Mitesh Dhruv |
| Mitesh Dhruv |
| Chief Financial Officer
(Principal Financial Officer)
|
| |
Date: February 26, 2020 | /s/ Vaibhav Agarwal |
| Vaibhav Agarwal |
| Interim Chief Financial Officer and Chief Accounting Officer
(Principal Financial Officer and Principal Accounting Officer)
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Vladimir Shmunis, Mitesh Dhruv, and Vaibhav Agarwal, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
| * | | Director | | April 28, 2022 |
| Michelle McKenna | | | | |
| | | | |
Signature* | | TitleDirector | | DateApril 28, 2022 |
| Robert Theis | | | | |
| | | | |
| * | | Director | | April 28, 2022 |
| Allan Thygesen | | | | |
| | | | |
| * | | Director | | April 28, 2022 |
| R. Neil Williams | | | | |
| | | | |
| * | | Director | | April 28, 2022 |
| Kenneth A. Goldman | | | | |
| | | | |
| * | | Director | | April 28, 2022 |
| Mignon L. Clyburn | | | | |
| | | | |
| * | | Director | | April 28, 2022 |
| Arne Duncan | | | | |
| | | | | | | | |
| | |
| *By: | | /s/ Vladimir Shmunis | | Chairman and Chief Executive Officer | | February 26, 2020 |
| | Vladimir Shmunis, | | (Principal Executive Officer) | | |
| | | | |
/s/ Mitesh Dhruv | | Chief Financial Officer | | February 26, 2020 |
Mitesh Dhruv | | (Principal Financial Officer) | | |
| | | | |
/s/ Vaibhav Agarwal | | Chief Accounting Officer | | February 26, 2020 |
Vaibhav Agarwal | | (Principal Accounting Officer) | | |
| | | | |
/s/ Michelle McKenna | | Director | | February 26, 2020 |
Michelle McKenna | | | | |
| | | | |
/s/ Robert Theis | | Director | | February 26, 2020 |
Robert Theis | | | | |
| | | | |
/s/ Allan Thygesen | | Director | | February 26, 2020 |
Allan Thygesen | | | | |
| | | | |
/s/ R. Neil Williams | | Director | | February 26, 2020 |
R. Neil Williams | | | | |
| | | | |
/s/ Kenneth A. Goldman | | Director | | February 26, 2020 |
Kenneth A. Goldman | | | | |
| | | | |
/s/ Godfrey Sullivan | | Director | | February 26, 2020 |
Godfrey Sullivan | | | | As attorney-in-fact |
