sc13da610114014_06162016.htm

0000921895-16-004955.txt : 20160616 0000921895-16-004955.hdr.sgml : 20160616 20160616114645 ACCESSION NUMBER: 0000921895-16-004955 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20160616 DATE AS OF CHANGE: 20160616 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: YuMe Inc CENTRAL INDEX KEY: 0001415624 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING AGENCIES [7311] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-87912 FILM NUMBER: 161716990 BUSINESS ADDRESS: STREET 1: 1204 MIDDLEFIELD ROAD CITY: Redwood City STATE: CA ZIP: 94063 BUSINESS PHONE: 650-591-9400 MAIL ADDRESS: STREET 1: 1204 MIDDLEFIELD ROAD CITY: Redwood City STATE: CA ZIP: 94063 FORMER COMPANY: FORMER CONFORMED NAME: Yume Inc DATE OF NAME CHANGE: 20071018 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VIEX Capital Advisors, LLC CENTRAL INDEX KEY: 0001619125 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 825 THIRD AVENUE STREET 2: 33RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-752-5750 MAIL ADDRESS: STREET 1: 825 THIRD AVENUE STREET 2: 33RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: Vertex Capital Advisors, LLC DATE OF NAME CHANGE: 20140910 SC 13D/A 1 sc13da610114014_06162016.htm AMENDMENT NO. 6 TO THE SCHEDULE 13D sc13da610114014_06162016.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 6)1

YuMe, Inc.

(Name of Issuer)

Common Stock, $.001 par value per share

(Title of Class of Securities)

98872B104

(CUSIP Number)

ERIC SINGER

VIEX CAPITAL ADVISORS, LLC

825 Third Avenue, 33rd Floor

New York, New York 10022

STEVE WOLOSKY, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

June 16, 2016

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

_______________

1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX Opportunities Fund, LP – Series One*
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,591,733
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,591,733
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,591,733
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.5%
14	TYPE OF REPORTING PERSON PN

_______________

* This Series One is part of a series of VIEX Opportunities Fund, LP, a series limited partnership.

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX Opportunities Fund, LP – Series Two*
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 561,269
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 561,269
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 561,269
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6%
14	TYPE OF REPORTING PERSON PN

_______________

* This Series Two is part of a series of VIEX Opportunities Fund, LP, a series limited partnership.

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX Special Opportunities Fund II, LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,339,594
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,339,594
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,339,594
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.7%
14	TYPE OF REPORTING PERSON PN

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX GP, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 3,153,002
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 3,153,002
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,153,002
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.1%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX Special Opportunities GP II, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,339,594
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,339,594
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,339,594
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.7%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON VIEX Capital Advisors, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 5,492,596
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 5,492,596
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,492,596
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.8%
14	TYPE OF REPORTING PERSON IA

CUSIP NO. 98872B104

1	NAME OF REPORTING PERSON Eric Singer
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 5,492,596
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 5,492,596
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,492,596
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.8%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 98872B104

The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned (the “Amendment No. 6”). This Amendment No. 6 amends the Schedule 13D as specifically set forth herein.

Item 2.

Identity and Background.

Item 2 is hereby amended to add the following:

Effective with the election of Mr. Nader to the Issuer’s Board of Directors (the “Board”) at the Issuer’s annual meeting of stockholders held on May 27, 2016 (the “Annual Meeting”), Mr. Nader ceased to be a member of a Section 13(d) group with Series One, Series Two, VSO II, VIEX GP, VSO GP II, VIEX Capital and Mr. Singer and ceased to be a Reporting Person hereunder.

The remaining Reporting Persons will continue filing as a group, statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer to the extent required by applicable law. Each of the remaining Reporting Persons is party to the Joint Filing Agreement, as further described in Item 6 below.

Item 3.

Source and Amount of Funds or Other Consideration.

Item 3 is hereby amended and restated to read as follows:

The Shares purchased by Series One were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 2,591,733 Shares beneficially owned by Series One is approximately $7,219,780, excluding brokerage commissions.

The Shares purchased by Series Two were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 561,269 Shares beneficially owned by Series Two is approximately $1,490,047, excluding brokerage commissions.

The Shares purchased by VSO II were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 2,339,594 Shares beneficially owned by VSO II is approximately $6,693,038, excluding brokerage commissions.

Item 4.

Purpose of Transaction.

Item 4 is hereby amended to add the following:

On May 27, 2016, Mr. Singer was elected to the Board with overwhelming stockholder support, receiving approximately 80% of the votes cast at the Annual Meeting. Mr. Singer interpreted the voting results from the Annual Meeting as a clear and urgent mandate from stockholders to address the Issuer’s underperformance. In order to fulfill this mandate and discharge his fiduciary duties as a director, at the Annual Meeting, Mr. Singer requested that Board and committee meetings be immediately scheduled. In response, neither the Chairman of the Board, Jayant Kadambi, nor the Lead Independent Director, Daniel Springer, each of whom are the only persons authorized to call meetings of the Board, would agree to schedule a Board meeting until August 2016. In a separate conversation with the Chairman of the Nominating and Governance Committee, Adriel Lares, Mr. Singer requested that he be appointed to committees of the Board. Mr. Lares responded that there was no need for Mr. Singer’s appointment to any committee since in his opinion, he believed each of the committees were well functioning. Mr. Singer took this response as a clear indictment of the poor governance of the Issuer. Despite the Issuer’s claims in its press release dated May 27, 2016 that it appreciated the opportunity to engage with stockholders in connection with the Annual Meeting, the Board’s lack of urgency to call a Board or committee meeting and failure to appoint Mr. Singer or Mr. Nader to any committee, suggests that the Board has no regard for stockholder input.

CUSIP NO. 98872B104

Following the certification of the vote for the Annual Meeting, Mr. Singer sent a written request to the Issuer requesting certain information pertinent to the issues facing the Issuer and Board processes, including information on cost rationalization, capital allocation, strategic discussions, and compensation practices. The information requested was of a nature that should have been readily available to deliver to any director upon request and was requested to allow for Mr. Singer’s active and informed participation on the Board. When most of the requested information was not timely delivered to Mr. Singer, Mr. Singer sent a second request. The Issuer’s response to both requests has been woefully inadequate, leaving Mr. Singer with no recourse but to seek legal remedies.

Accordingly, on June 16, 2016, Mr. Singer filed a lawsuit in the Court of Chancery of the State of Delaware against the Issuer, asking that the Court compel the Issuer to provide access to and copies of certain books and records of the Issuer to Mr. Singer, which Mr. Singer seeks in his capacity as a director of the Board. A copy of the complaint is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Mr. Singer believes the failure of the Board to schedule a Board meeting promptly following the Annual Meeting and its refusal to provide all of the information requested by Mr. Singer to fulfill the stockholder mandate and his fiduciary duties as a director, evidences a Board that has no regard for the will of stockholders. The Reporting Persons had hoped that following the Annual Meeting, the Board would desire to work constructively with Mr. Singer and Mr. Nader to address the Issuer’s cost structure, misguided capital allocations, questionable compensation practices and corporate governance issues. Instead, it seems apparent that the Board desires to maintain the status quo to the detriment of all stockholders. If the Board continues to marginalize Mr. Singer in the Board room, the Reporting Persons will have no choice but to seek a reconstitution of the Board at next year’s annual meeting of stockholders.

Item 5.

Interest in Securities of the Issuer.

Items 5(a)-(c) are hereby amended and restated to read as follows:

The aggregate percentage of Shares reported owned by each Reporting Person is based upon 34,698,127 Shares outstanding, which is the total number of Shares outstanding as of April 29, 2016 as reported in the Issuer’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on May 6, 2016.

A.	Series One

(a)

As of the close of business on June 15, 2016, Series One beneficially owned 2,591,733 Shares.

Percentage: Approximately 7.5%

CUSIP NO. 98872B104

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 2,591,733

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 2,591,733

(c)

Series One has not entered into any transactions in the Shares during the past sixty days.

B.	Series Two

(a)

As of the close of business on June 15, 2016, Series Two beneficially owned 561,269 Shares.

Percentage: Approximately 1.6%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 561,269

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 561,269

(c)

Series Two has not entered into any transactions in the Shares during the past sixty days.

VSO II

(a)

As of the close of business on June 15, 2016, VSO II beneficially owned 2,339,594 Shares.

Percentage: Approximately 6.7%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 2,339,594

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 2,339,594

(c)

VSO II has not entered into any transaction in the Shares during the past sixty days.

VIEX GP

(a)

VIEX GP, as the general partner of Series One and Series Two, may be deemed the beneficial owner of the (i) 2,591,733 shares owned by Series One and (ii) 561,269 shares owned by Series Two.

Percentage: Approximately 9.1%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 3,153,002

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 3,153,002

(c)

VIEX GP has not entered into any transactions in the Shares during the past sixty days.

CUSIP NO. 98872B104

VSO GP II

(a)

VSO GP II, as the general partner of VSO II, may be deemed the beneficial owner of the 2,339,594 shares owned by VSO II.

Percentage: Approximately 6.7%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 2,339,594

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 2,339,594

(c)

VSO GP II has not entered into any transactions in the Shares during the past sixty days.

F.	VIEX Capital

(a)

VIEX Capital, as the investment manager of Series One, Series Two and VSO II, may be deemed the beneficial owner of the (i) 2,591,733 Shares owned by Series One, (ii) 561,269 Shares owned by Series Two and (iii) 2,339,594 owned by VSO II.

Percentage: Approximately 15.8%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 5,492,596

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 5,492,596

(c)

VIEX Capital has not entered into any transactions in the Shares during the past sixty days.

G.	Eric Singer

(a)

Mr. Singer, as the managing member of VIEX GP and VIEX Capital, may be deemed the beneficial owner of the (i) 2,591,733 Shares owned by Series One, (ii) 561,269 Shares owned by Series Two and (iii) 2,339,594 owned by VSO II.

Percentage: Approximately 15.8%

(b)

1. Sole power to vote or direct vote: 0

2. Shared power to vote or direct vote: 5,492,596

3. Sole power to dispose or direct the disposition: 0

4. Shared power to dispose or direct the disposition: 5,492,596

(c)

Mr. Singer has not entered into any transactions in the Shares during the past sixty days.

The filing of this Schedule 13D shall not be construed as an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any of the Shares reported herein. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.

CUSIP NO. 98872B104

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On June 16, 2016, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. A copy of this agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Item 7.

Material to be Filed as Exhibits.

Item 7 is hereby amended to add the following:

99.1

Joint Filing Agreement by and among VIEX Opportunities Fund, LP – Series One, VIEX Opportunities Fund, LP – Series Two, VIEX Special Opportunities Fund II, LP, VIEX GP, LLC, VIEX Special Opportunities GP II, LLC, VIEX Capital Advisors, LLC and Eric Singer dated June 16, 2016.

99.2

Complaint dated June 16, 2016

CUSIP NO. 98872B104

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: June 16, 2016

VIEX Opportunities Fund, LP – Series One

By:	VIEX GP, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Opportunities Fund, LP – Series Two

By:	VIEX GP, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX GP, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Special Opportunities Fund II, LP

By:	VIEX Special Opportunities GP II, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Special Opportunities GP II, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

CUSIP NO. 98872B104

VIEX Capital Advisors, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

	/s/ Eric Singer
	Eric Singer

EX-99.1 2 ex991to13da610114014_061616.htm JOINT FILING AGREEMENT ex991to13da610114014_061616.htm

Exhibit 99.1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including additional amendments thereto) with respect to the shares of Common Stock, $.001 par value per share, of YuMe, Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.

Dated: June 16, 2016

VIEX Opportunities Fund, LP – Series One

By:	VIEX GP, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Opportunities Fund, LP – Series Two

By:	VIEX GP, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX GP, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Special Opportunities Fund II, LP

By:	VIEX Special Opportunities GP II, LLC General Partner

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Special Opportunities GP II, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

VIEX Capital Advisors, LLC

By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

	/s/ Eric Singer
	Eric Singer

EX-99.2 3 ex992to13da610114014_061616.htm COMPLAINT ex992to13da610114014_061616.htm

Exhibit 99.2

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ERIC SINGER,	:
	:
Plaintiff,	:
	:
v.	:	C.A. No. _____________
	:
YUME, INC.,	:
a Delaware corporation,	:
	:
Defendant.	:

VERIFIED COMPLAINT

PURSUANT TO SECTION 8 DEL. C. § 220(d)

Plaintiff Eric Singer (“Plaintiff” or “Singer”), by and through his undersigned counsel, upon knowledge as to himself and upon information and belief as to all other matters, alleges for his Verified Complaint as follows:

NATURE OF THE ACTION

1. This is an action brought pursuant to Section 220(d) (“Section 220(d)”) of the Delaware General Corporation Law (“DGCL”) to compel defendant YuMe, Inc. (“YuMe” or the “Company”) to make available to Singer, a duly elected director of YuMe, certain books and records relating to the performance of the Company, the management of the Company and the processes of the Company’s Board of Directors (the “Board”). The books and records request is being made in order for Singer to discharge his fiduciary duties as a director of the Company.

2. As part of a proxy contest launched to address the Company’s poor financial performance and corporate governance issues, among other things, Singer was elected to the Board with overwhelming stockholder support in May of 2016.

3. In order to carry out his duties as a director and to fulfill the mandate of YuMe’s stockholders, Singer has made two separate written demands to inspect certain of the Company’s books and records. The Company, however, has stymied those efforts, has refused to provide much of the requested information and is attempting to block Singer from fulfilling the stockholder mandate. Thus, Singer seeks relief in this Court.

Parties

4. Plaintiff Eric Singer is a resident of New York and a director of Defendant YuMe, Inc.

5. Defendant YuMe, Inc. is a Delaware corporation with its principal corporate offices at 1204 Middlefield Road, Redwood City, CA 94063. YuMe’s registered agent is Incorporating Services, Ltd., 3500 S DuPont Highway, Dover, Delaware 19901. YuMe is a multi-screen video advertising technology company that holds itself out as defining the next generation of TV brand advertising as TV viewing audiences continue to fragment across screens, content types, and different consumer electronic platforms. Founded in 2004, YuMe went public in 2013, and its common stock is listed on the New York Stock Exchange under the symbol “YuMe.”

6. Singer is the Founder and Managing Member of VIEX Capital Advisors, LLC (“VIEX”), which is deemed to beneficially own approximately 15.8% of the outstanding common stock of YuMe.

VIEX Acquires A Significant Stake In The Company

7. On October 7, 2015, VIEX filed its initial Schedule 13D to report an ownership of greater than 5% of the common stock of YuMe. In that Schedule 13D, VIEX called upon the Board to focus on strategic alternatives to maximize stockholder value and be accountable to stockholders on capital allocation. VIEX recommended YuMe undertake a self tender which could result in EBITDA accretion and reduce YuMe’s over capitalized balance sheet. VIEX also argued, among other things, that EBITDA margins could be enhanced through more disciplined management of operating expenses.

8. Between September 2015 and March 2016, Singer, on behalf of VIEX, had numerous public and private communications with YuMe’s management and the Board intended to address the Company’s under performance, depressed stock price, capital allocation, questionable executive compensation practices and other concerns.

The Proxy Context

9. On March 4, 2016, VIEX nominated Singer and Elias Nader to YuMe’s eight person Board and submitted a non-binding stockholder proposal to declassify the Board. During the proxy campaign, VIEX argued that stockholder representation was needed on the YuMe Board due to:

Poor total stockholder return including a 68% decline in the stock price since YuMe’s IPO until one day prior to VIEX’s initial Schedule 13D filings.

Disastrous operational performance including a 40% decrease in retained earnings from September 30, 2013 through December 31, 2015 and $20.1 million in cumulative losses incurred.

Poor capital allocation in the form of heavy investment and global expansion without a correlating increase in revenue or profitability.

Repeatedly missed self-imposed financial targets.

Lack of alignment of interests with stockholders including high executive compensation despite poor performance, and dilutive stock base compensation.

Poor corporate governance.

10. Despite public support for VIEX’s nominees from the Company’s second largest stockholder, who owns more than 10% of YuMe’s outstanding stock, and the support of the three leading proxy advisory firms, YuMe refused to settle the proxy contest if such settlement included the appointment of Singer to the Board.

11. On May 27, 2016, YuMe held its annual meeting of stockholders. At that meeting, Singer received overwhelming stockholder support and was elected with 22,329,562 out of 28,056,838 votes cast. VIEX’s other nominee to the Board, Elias Nader, was also elected with overwhelming stockholder support and received 21,503,311 votes.

The First Demand

12. In order to carry out his fiduciary duties as a newly elected director and to fulfill the clear mandate of the stockholders that the Company’s underperformance be addressed, on June 1, 2016, Singer sent the Company a written demand to examine certain of the books and records of the Company (the “First Demand”). Singer sent the First Demand to YuMe’s General Counsel, Paul Porrini (“Porrini”), and copied the Company’s Chairman and Chief Executive Officer, Jayant Kadambi. A true and correct copy of the First Demand is attached hereto as Exhibit A.

13. Singer’s First Demand sought various categories of documents concerning the history of the Company and its Board. The First Demand included requests for basic company information such as the Company’s organizational chart and list of employees by office and geography.

14. Singer’s First Demand also sought information regarding YuMe’s Board including, “board/committee packages,” materials that were disseminated to the Board and the committees of the Board in preparation for meetings, and minutes of meetings of the Board and its committees in each case, for the prior three years.

15. Singer’s First Demand also sought documents concerning Board processes related to capital allocation, approval of operating expenses, the Company’s operating plans, budgets and internal projections, and presentations and studies prepared for the Company by investment bankers or other strategic advisors.

16. On June 2, 2016, Porrini responded to Singer that the requested information would be uploaded to a Board portal where Singer could access the information.

17. Thereafter, on June 8, 2016, Singer received access to the portal. However, virtually none of the information requested in the First Demand had been uploaded to the Board portal.

The Second Demand

18. On June 9, 2016, Singer sent a second written request to Porrini indicating that the information provided through the Board portal fell far short of the original request. Singer demanded pursuant to Section 220(d) that all of the information be made available by June 13, 2016 (the “Second Demand”). A true and accurate copy of the Second Demand is attached hereto as Exhibit B.

19. On June 13, 2016, additional material was uploaded to the Board portal, but did not include key information that was requested such as investment banker presentations and the Company data that went into such presentations, backup and reports relating to reimbursement of travel and entertainment expenses, backup to management projections to support public company guidance and expectations (such as internal projections and analysis), competitive bid process/reports for third-party services (including accounting, legal, insurance, etc.) and analysis regarding the opening of international offices. Much of the information that was provided also contained heavy redactions with no indication as to the basis for withholding the information.

20. This key information is the type of information a director needs to understand the Company’s strategic plans, strategy toward capital allocation, and support for public company guidance and other expectations. The requested information also goes to key aspects of Singer’s overwhelmingly successful proxy campaign. The requested information should be readily available to the Company to be delivered to Singer with ease.

21. Accordingly, Singer needs to receive all the requested information and confirmation from the Company that what is provided is the entire universe of information responsive to his requests.

COUNT I

(Inspection of Books and Records Pursuant to 8 Del. C. §220(d))

22. Singer repeats and realleges the allegations set forth above as if fully set forth herein.

23. In his capacity as a director of the Company, Singer has requested certain books and records of the Company.

24. Singer’s purpose for requesting these books and records is proper and relates to the financial well-being of both the Company and its stockholders, as well as management of the Company by the Board. Singer’s requests are reasonably related to Singer’s interests as a director of the Company.

25. Despite Singer’s demands, the Company has refused to provide Singer with all of the information requested.

26. The information requested in the First Demand and Second Demand is necessary for Singer to carry out his duties as a director and to evaluate and protect the interests of all YuMe stockholders.

27. Singer has no adequate remedy at law.

WHEREFORE, Singer respectfully requests that this Court enter an Order pursuant to Section 220(d):

a. Summarily directing YuMe to immediately provide to Singer all the information requested in the First Demand and Second Demand for the proper purposes articulated therein and to provide the basis for any withheld or redacted information;

b. Awarding Singer his costs, fees and expenses, including reasonable attorneys’ fees in connection with this Action; and

c. Granting Singer such other and further relief as the Court deems just and proper.

PROCTOR HEYMAN ENERIO LLP

/s/ Patricia L. Enerio__________________

Patricia L. Enerio (# 3728)

Aaron M. Nelson (# 5941)

300 Delaware Avenue, Suite 200

Wilmington, DE 19801

(302) 472-7300

Attorneys for Plaintiff Eric Singer

OF COUNSEL:

OLSHAN FROME WOLOSKY, LLP

Thomas J. Fleming

Howard J. Smith

1325 Avenue of the Americas

New York, NY 10019

(212) 451-2300

Dated: June 16, 2016

EXHIBIT A

TO THE COMPLAINT

From: "pporrini@yume.com" <pporrini@yume.com>

Date: June 2, 2016 at 3:46:24 PM EDT

To: Eric Singer <singer@viexcapital.com>

Cc: "jkadambi@yume.com" <jkadambi@yume.com>

Subject: RE: Director Request

Eric – Thanks for your email and welcome again to the board. I will have our customary director orientation manual delivered to your and Elias’ office on Monday morning. Other requested information is being loaded onto our board portal (Diligent) for your review in the coming days. You will see login instructions for the portal in the front flap of the orientation manual. I will revert shortly with dates in the coming weeks for an orientation meeting. Alternatively, you indicated that you are routinely in the bay area so, for efficiency purposes, perhaps you could let us know when you are next scheduled to be in the bay area and we can work around your schedule. Otherwise, we could consider teleconferencing you into a meeting in which Elias participates locally. Let me know your preference.

Paul

From: Eric Singer [mailto:singer@viexcapital.com]

Sent: Wednesday, June 01, 2016 9:02 AM

To: Paul Porrini <pporrini@yume.com>

Cc: Jayant Kadambi <jkadambi@yume.com>

Subject: Director Request

Dear Paul,

As a new director of YuMe and in order to discharge my fiduciary duties, I would like copies of the following books and records of the Company sent to me no later than Monday, June 6, 2016. As you are aware, I was elected to the Board with overwhelming stockholder support and with a clear and urgent mandate to address the Company’s poor performance. Understanding the history of the Company and Board processes is essential to my active and informed participation on the YuMe Board and believe any failure by management or Company counsel to promptly produce the requested material, will be interpreted as an attempt to obstruct my ability to properly fulfill my director responsibilities. In addition, I would like to schedule a date for an in-house orientation meeting with senior management for Elias and me. Please advice of a few dates in the upcoming weeks. Thank you in advance for your prompt attention.

Regards,

Eric Singer

- organizational chart

- list of headcount by office and geography

- all “board/committee packages” including all materials that were disseminated to the Board and the committees of the Board in preparation for meetings of the Board and the committees during the past three years, including financial projections and allocation of public company costs [if necessary, material relating to the proxy contest can be redacted as appropriate]

- all minutes of meetings of the Board and all committees of the Board that were held during the past three years [if necessary, minutes relating to the proxy contest can be redacted as appropriate]

- all unanimous written consents of the Board and the committees of the Board that were executed during the past three years [if necessary, consents relating to the proxy contest can be redacted as appropriate]

- all records relating to reimbursement by the Company of all business expenses (travel, entertainment, club, dining, transportation, communication and the like) incurred during the past 2 years by the CEO and the top three travel spenders, including, but not limited to, copies of all expense reports and receipts submitted by such persons documenting expenses for which each had sought reimbursement and corresponding documentation reflecting the amounts actually remitted by the Company to each as reimbursement for such expenses and the amounts for which reimbursement was denied by the Company (including any explanations of the basis for approving or denying such reimbursement requests)

- audit committee report investigating the CEO’s travel and entertainment

- list of family members of section 16 officers that work at YuMe

- all presentations and studies prepared for the Company by investment bankers or other strategic advisors during the past three years

- all correspondence relating to strategic inbound inquiries and related discussions

- all of the Company’s operating plans, budgets and internal projections prepared during the past three years, including all related data to support the Company’s public statements relating to profitability and EBITDA margins of the Company’s domestic operations

- annual goals, milestones and objectives established for each executive officer and evaluations of the executive officers’ performance against those goals, milestones and objectives for the past three years

- all material agreements entered into by the Company during the past three years with the Company’s service providers, including audit, legal and insurance and any related analysis undertaken by the Company regarding the competitive bidding process undertaken before such service providers were retained

- all reports, analysis, studies, projections undertaken before signing corporate leases globally.

EXHIBIT B

TO THE COMPLAINT

From: Eric Singer <singer@viexcapital.com>

Date: June 9, 2016 at 1:49:39 PM EDT

To: "pporrini@yume.com" <pporrini@yume.com>

Subject: Information requests

Paul,

I received access to the board portal yesterday and believe the materials uploaded to that portal fall far short of my original request. My original request was intended to educate me about YuMe’s operations, business, strategy and management and to allow me to discharge my fiduciary duties as a director. Given the overwhelming support I received from stockholders at the annual meeting, I had hoped that management and the incumbent Board would understand the urgent need to address the serious problems facing the Company. It is therefore shocking that the Board is refusing to call a Board meeting immediately and apparently is now refusing to provide me with basic and readily accessible information for me to become fully informed as a director.

I therefore demand, in accordance with Section 220(d) of the Delaware General Corporation Law, that all of the information I requested be sent to me (preferably in hard copy by Fedex) no later than Monday, June 13th or I will pursue other remedies, including filing a lawsuit with the Delaware courts. For your convenience, I have reposted my original request below, with commentary on what has been uploaded to the portal.

- organizational chart [I have reviewed]

- list of headcount by office and geography [Please provide per office]

- all minutes of meetings of the Board and all committees of the Board that were held during the past three years [if necessary, minutes relating to the proxy contest can be redacted as appropriate]

- audit committee report investigating the CEO’s travel and entertainment [I have reviewed]

- list of family members of section 16 officers that work at YuMe [please confirm no family members work at YuMe]

- all presentations and studies prepared for the Company by investment bankers or other strategic advisors during the past three years [I saw the Baker presentations - please confirm whether this is the extent of all reports prepared by Bankers. Please provide all reports prepared by Houlihan Lokey, including those related to capital allocation, and all business plans delivered to YuMe to facilitate Houlihan Lokey’s reports as well as business plans provided to facilitate other banker reports and confirm they are all that exists]

- all correspondence relating to strategic inbound inquiries and related discussions

- all reports, analysis, studies, projections undertaken before signing corporate leases globally.