10-Q 1 a08-11442_110q.htm 10-Q

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM 10-Q

 


 

x

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

 

 

 

For the quarterly period ended March 31, 2008

 

 

 

or

 

 

o

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

 

 

 

For the transition period from         to

 

000-31321

(Commission File No.)

 

RIGHTNOW TECHNOLOGIES, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

 

81-0503640

(State or Other Jurisdiction of

 

(I.R.S. Employer

Incorporation or Organization)

 

Identification No.)

 

136 Enterprise Boulevard

Bozeman, Montana 59718-9300

(Address of Principal Executive Offices) (Zip Code)

 

(406) 522-4200

(Registrant’s Telephone Number, Including Area Code)

 

N/A

(Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report)

 

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

 

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

 

Large accelerated filer o

 

Accelerated filer x

 

 

 

Non-accelerated filer o

 

Smaller reporting company o

(Do not check if a smaller reporting company)

 

 

 

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

 

The number of shares outstanding of the registrant’s common stock, $0.001 par value, as of April 30, 2008 was 33,574,361

 

 



 

RightNow Technologies, Inc.

Quarterly Report on Form 10-Q

 

For the Quarterly Period Ended March 31, 2008

 

INDEX

 

 

 

Page

Part I.

 

FINANCIAL INFORMATION

 

Item 1.

Financial Statements

 

 

 

 

 

a)

Condensed consolidated balance sheets (unaudited)

 

 

b)

Condensed consolidated statements of operations (unaudited)

 

 

c)

Condensed consolidated statements of cash flows (unaudited)

 

 

d)

Notes to condensed consolidated financial statements (unaudited)

 

 

 

 

 

Item 2.

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

 

 

 

 

Item 3.

 Quantitative and Qualitative Disclosures About Market Risk

 

 

 

 

Item 4.

Controls and Procedures

 

 

 

 

Part II.

 

OTHER INFORMATION

 

Item 1.

Legal Proceedings

 

 

 

 

Item 1A.  Risk Factors

 

 

 

 

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

 

 

 

 

Item 3.

Defaults Upon Senior Securities

 

 

 

 

Item 4.

Submission of Matters to a Vote of Security Holders

 

 

 

 

Item 5.

Other Information

 

 

 

 

Item 6.

Exhibits

 

 

 

 

SIGNATURES

 

 

2



 

Part I. FINANCIAL INFORMATION

 

Item 1. Financial Statements
 

RightNow Technologies, Inc.

Condensed Consolidated Balance Sheets

(In thousands) (Unaudited)

 

 

 

December
31, 2007

 

March 31,
2008

 

Assets

 

 

 

 

 

Cash and cash equivalents

 

$

43,681

 

$

44,591

 

Short-term investments

 

52,644

 

36,585

 

Accounts receivable

 

29,480

 

27,503

 

Term receivables, current

 

13,069

 

9,616

 

Allowance for doubtful accounts

 

(1,918

)

(2,056

)

Receivables, net

 

40,631

 

35,063

 

Deferred commissions

 

3,336

 

3,485

 

Prepaid & other current assets

 

2,643

 

3,288

 

Total current assets

 

142,935

 

123,012

 

 

 

 

 

 

 

Long-term investments

 

 

17,810

 

Property and equipment, net

 

10,856

 

10,807

 

Term receivables, non-current

 

9,859

 

8,059

 

Intangible assets, net

 

7,996

 

7,606

 

Deferred commissions, non-current

 

1,680

 

1,962

 

Other

 

460

 

448

 

Total Assets

 

$

173,786

 

$

169,704

 

 

 

 

 

 

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

Accounts payable

 

$

4,386

 

$

6,148

 

Commissions and bonuses payable

 

5,044

 

3,531

 

Other accrued liabilities

 

11,404

 

11,998

 

Current portion of long-term debt

 

46

 

44

 

Current portion of deferred revenue

 

76,995

 

73,575

 

Total current liabilities

 

97,872

 

95,296

 

 

 

 

 

 

 

Long-term debt, less current portion

 

68

 

57

 

Deferred revenue, net of current portion

 

37,665

 

38,079

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Common stock

 

33

 

34

 

Additional paid-in capital

 

95,377

 

97,107

 

Accumulated other comprehensive loss

 

(292

)

(536

)

Accumulated deficit

 

(56,937

)

(60,333

)

Total stockholders’ equity

 

38,181

 

36,272

 

Total Liabilities and Stockholders’ Equity

 

$

173,786

 

$

169,704

 

 

See accompanying notes to condensed consolidated financial statements.

 

3



 

RightNow Technologies, Inc.

Condensed Consolidated Statements of Operations

(In thousands, except per share amounts) (Unaudited)

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

Revenue:

 

 

 

 

 

Software, hosting and support

 

$

19,819

 

$

24,556

 

Professional services

 

5,883

 

8,342

 

Total revenue

 

25,702

 

32,898

 

 

 

 

 

 

 

Cost of revenue:

 

 

 

 

 

Software, hosting and support

 

4,394

 

5,035

 

Professional services

 

5,171

 

7,285

 

Total cost of revenue

 

9,565

 

12,320

 

 

 

 

 

 

 

Gross profit

 

16,137

 

20,578

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

Sales and marketing

 

15,727

 

16,818

 

Research and development

 

4,296

 

4,486

 

General and administrative

 

2,860

 

3,516

 

Total operating expenses

 

22,883

 

24,820

 

 

 

 

 

 

 

Loss from operations

 

(6,746

)

(4,242

)

 

 

 

 

 

 

Interest and other income, net

 

828

 

938

 

 

 

 

 

 

 

Loss before income taxes

 

(5,918

)

(3,304

)

Provision for income taxes

 

(84

)

(92

)

Net loss

 

$

(6,002

)

$

(3,396

)

 

 

 

 

 

 

Net loss per share:

 

 

 

 

 

Basic

 

$

(0.18

)

$

(0.10

)

Diluted

 

$

(0.18

)

$

(0.10

)

 

 

 

 

 

 

Shares used in the computation:

 

 

 

 

 

Basic

 

32,858

 

33,532

 

Diluted

 

32,858

 

33,532

 

 

See accompanying notes to condensed consolidated financial statements.

 

4



 

RightNow Technologies, Inc.

Condensed Consolidated Statements of Cash Flows

(In thousands) (Unaudited)

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

Operating activities:

 

 

 

 

 

Net loss

 

$

(6,002

)

$

(3,396

)

Non-cash adjustments:

 

 

 

 

 

Depreciation and amortization

 

1,675

 

1,954

 

Provisions (recoveries) of uncollectible accounts receivable

 

(69

)

89

 

Stock-based compensation

 

1,302

 

1,266

 

Changes in operating accounts:

 

 

 

 

 

Receivables

 

15,427

 

7,447

 

Prepaid expenses

 

(584

)

(448

)

Deferred commissions

 

(887

)

(404

)

Accounts payable

 

(1,133

)

1,758

 

Commissions and bonuses payable

 

(1,171

)

(1,523

)

Other accrued liabilities

 

2,881

 

534

 

Deferred revenue

 

(6,056

)

(3,434

)

Other

 

(23

)

(173

)

Cash provided by operating activities

 

5,360

 

3,670

 

 

 

 

 

 

 

Investing activities:

 

 

 

 

 

Net change in investments

 

1,549

 

(1,970

)

Acquisition of property and equipment

 

(1,987

)

(1,509

)

Other

 

(29

)

(13

)

Cash used in investing activities

 

(467

)

(3,492

)

 

 

 

 

 

 

Financing activities:

 

 

 

 

 

Proceeds from issuance of common stock under employee benefit plans

 

643

 

414

 

Excess tax benefits of stock options exercised

 

49

 

51

 

Payments on long-term debt

 

(7

)

(11

)

Cash provided by financing activities

 

685

 

454

 

 

 

 

 

 

 

Effect of foreign exchange rates on cash and cash equivalents

 

113

 

278

 

 

 

 

 

 

 

Increase in cash and cash equivalents

 

5,691

 

910

 

 

 

 

 

 

 

Cash and cash equivalents at beginning of period

 

39,208

 

43,681

 

Cash and cash equivalents at end of period

 

$

44,899

 

$

44,591

 

 

See accompanying notes to condensed consolidated financial statements.

 

5



 

RightNow Technologies, Inc.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

 

(1)         Business Description and Basis of Presentation

 

Business Description

 

 RightNow Technologies, Inc. (the “Company” or “RightNow”) provides customer experience management software solutions for companies of all sizes. The Company’s on demand software is designed to help companies improve their customer experiences while reducing operating costs. RightNow’s solutions go beyond traditional customer relationship management (“CRM”) solutions to support a business’ external customer-facing channels as well as sales, marketing and customer service operations. Founded in 1997, RightNow is headquartered in Bozeman, Montana, with additional offices in North America, Europe, Asia, and Australia. The Company operates in one segment, which is the customer experience management market.

 

Basis of Presentation

 

The accompanying condensed interim consolidated financial statements are unaudited. These financial statements and notes should be read in conjunction with the audited consolidated financial statements and related notes, together with management’s discussion and analysis of financial condition and results of operations, contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2007.

 

The accompanying interim condensed consolidated financial statements have been prepared in accordance with United States generally accepted accounting principles. In the opinion of management, the interim condensed consolidated financial statements and notes have been prepared on the same basis as the audited consolidated financial statements in the Annual Report on Form 10-K and include all adjustments necessary for the fair presentation of the Company’s financial position at March 31, 2008, and results of operations and cash flows for the three month periods ended March 31, 2007 and 2008. The interim period results are not necessarily indicative of the results to be expected for the full year.

 

The preparation of financial statements in conformity with United States generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, and disclosures of contingent assets and liabilities. Management evaluates these estimates and assumptions on an on-going basis. Significant estimates and assumptions made by management include the identification and fair value of individual elements in multiple-element sales arrangements, whether the fees charged for our products and services are fixed or determinable, valuation allowances for trade receivables and deferred income tax assets, and assumptions used in estimating the fair value of stock options granted for stock-based compensation.

 

6



 

(2) Certain Risks and Concentrations

 

The Company’s revenue is derived from the subscription, license, hosting and support of its software products and provision of related professional services. The markets in which the Company competes are highly competitive and rapidly changing. Significant technological changes, changes in customer requirements, or the emergence of competitive products with new capabilities or technologies could adversely affect the Company’s operating results. The Company has historically derived a majority of its revenue from customer service software solutions. These products are expected to continue to account for a significant portion of revenue for the foreseeable future. As a result of this revenue concentration, the Company’s business could be harmed by a decline in demand for, or in the prices of, these products or as a result of, among other factors, any change in pricing model, a maturation in the markets for these products, increased price competition or a failure by the Company to keep up with technological change.

 

Financial instruments subjecting the Company to concentrations of credit risk consist primarily of cash and cash equivalents, short and long-term investments, and accounts and term receivables. The Company maintains cash, cash equivalents, and short and long-term investments with various domestic and foreign financial institutions. From time to time, the Company’s cash balances with its financial institutions may exceed insurance limits. Short and long-term investments are investment grade, interest-earning securities, and are diversified by type and industry. Our long-term investments consist of approximately $18.2 million par value auction rate securities as further described in Note 7.

 

The Company’s customers are worldwide with historical sales of approximately 70% to 75% in the United States. No individual customer accounted for more than 10% of the Company’s revenue in 2007 or the first three months of 2008. One customer represented 12% of term receivables at December 31, 2007 and one customer represented 14% of term receivables at March 31, 2008. No individual customer accounted for more than 10% of the Company’s accounts receivable at December 31, 2007 and March 31, 2008.

 

As of December 31, 2007 and March 31, 2008, assets located outside the United States were 14% and 13% of total assets, respectively. The loss from operations outside of the United States totaled $2.5 million and $4.3 million for the three months ended March 31, 2007 and 2008, respectively. Revenue by geographical region follows (in thousands):

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

 

 

 

 

 

 

United States

 

$

18,472

 

$

22,357

 

Europe

 

5,359

 

8,066

 

Asia Pacific

 

1,871

 

2,475

 

 

 

$

25,702

 

$

32,898

 

 

(3) Revenue Recognition

 

The Company earns its revenues from the delivery of software, hosting, and support services, and from the delivery of professional services. Software, hosting and support services are sold under subscription arrangements and license arrangements. In 2007, the Company essentially discontinued sales of perpetual licenses. Hosting and support services involve the

 

7



 

remote management of the software, technical assistance, and unspecified product upgrades and enhancements on a when and if available basis. Professional services include consulting, training and development services.

 

The Company recognizes revenue for subscriptions and licenses when all of the following criteria are met: a) the Company has entered into a legally binding agreement with the customer; b) the software has been made available or delivered to the customer; c) the Company’s fee for providing the software and services is fixed or determinable; and d) collection of the Company’s fee is probable.

 

 Subscriptions include access to the Company’s software through its hosting services, technical support, and product upgrades when and if available, all for a bundled fee. The Company accounts for subscriptions, in accordance with Emerging Issues Task Force Issue No. 00-21, Revenue Arrangements with Multiple Deliverables (“EITF 00-21”). Under EITF 00-21, value is allocated to each deliverable of an arrangement using prices established when the elements are sold stand-alone. Stand-alone sales of subscription agreements are evidenced by subscription renewals and stand-alone sales of professional services are evidenced by rates charged for consulting, education, and development services in stand-alone transactions. The arrangement fee is then allocated to the individual elements based on their relative fair values. Revenue for subscriptions are recognized ratably over the contractual period and professional services are recognized as incurred provided the above criteria have been met.

 

Under the Company’s subscription contracts, the Company applies EITF 00-21 to its subscriptions as opposed to Statement of Position 97-2, Software Revenue Recognition (“SOP 97-2”) as the customer does not have the right to take possession of the software without incurring a significant incremental penalty. In accordance with Emerging Issues Task Force Issue No. 00-03, Application of AICPA Statement of Position 97-2, Software Revenue Recognition, to Arrangements That Include the Right to Use Software Stored on Another Entity’s Hardware (“EITF 00-03”), such arrangements are considered service contracts and are not within the scope of SOP 97-2.

 

Prior to 2007, the majority of the Company’s revenues were earned under license arrangements. Revenue under these arrangements is recognized pursuant to the requirements of Statement of Position (SOP) 97-2, Software Revenue Recognition, and SOP 98-9, Modification of SOP 97-2, Software Revenue Recognition With Respect to Certain Transactions, issued by the American Institute of Certified Public Accountants. Licenses generally include the same elements as subscriptions, plus the right to take possession of the software for no additional fee and are sold for a period of time (a “term” license) or perpetually. Term contracts are non-cancelable, and generally cover a period of two years, but can range from a period of six months to five years. For term contracts, the Company treats the software license, hosting and support services as a single element for purposes of allocating revenue. The Company has established vendor specific objective evidence of fair value for the term license bundle based on stand-alone sales of the bundled items. When sold with professional services, revenue is allocated between the software license, hosting and support element and the professional services element using the relative fair value method. Revenue for the term license element is recognized ratably over the period of the arrangement and revenue for professional services in these arrangements is recognized as performed.

 

Sales of perpetual software licenses include hosting and support services for a period of time, typically one year. The Company has established vendor specific objective evidence for the

 

8



 

combined element of hosting and support elements of perpetual license sales, based on the prices charged when sold separately. Accordingly, revenue for the perpetual software license element is determined using the residual method and is recognized upon delivery. Revenue for the hosting and support elements is recognized ratably over the contractual time period.

 

The Company’s policy is to record revenue net of any applicable sales, use or excise taxes.

 

If an arrangement includes a right of acceptance or a right to cancel, revenue is recognized when acceptance is received or the right to cancel has expired. If the fee for the license has any payment term that is due in excess of the Company’s normal payment terms (over 90 days), the fee is considered to not be fixed or determinable, and the amount of revenue recognized (a) for perpetual license arrangements, is limited to the amount currently due from the customer, or (b) for term license or subscription arrangements, is limited to the lesser of the amount currently due from the customer or a ratable portion of the total unallocated arrangement fee.

 

Certain customers have license agreements that provide for usage fees above fixed minimums. Usage of the Company’s software requires additional fees if used by more than a specified number of users or for more than a specified number of interactions. Fixed minimums are recognized as revenue ratably over the term of the arrangement. Usage fees above fixed minimums are recognized as revenue when such amounts are known and billed.

 

Separate contracts with the same customer that are entered into at or near the same time are generally presumed to have been negotiated together and are combined and accounted for as a single arrangement.

 

Professional services revenue is recognized as performed, based on hours incurred, unless sold in conjunction with a term license or subscription where objective and reliable evidence (including vendor specific objective evidence) for the term or subscription element does not exist, in which case professional services revenue is recognized ratably over the contractual period. The Company has determined that the professional service elements of its software arrangements are not essential to the functionality of the software. The Company has also determined that its professional services (a) are available from other vendors, (b) do not involve a significant degree of risk or unique acceptance criteria, and (c) are not required for the customer to use the software.

 

(4)  Sales Commissions

 

Beginning in 2007, in conjunction with the Company’s business model change, sales incentives paid for subscriptions are deferred and charged to expense in proportion to the revenue recognized. Sales incentives paid for licenses are expensed when earned, which is typically at the time the related sale is invoiced. Sales incentive expense was $2.1 million and $3.2 million for the three months ended March 31, 2007 and 2008, respectively. Deferred commissions were $5.0 million and $5.4 million at December 31, 2007 and March 31, 2008, respectively.

 

 (5) Net Income (Loss) Per Share

 

A reconciliation of the denominator used in the calculation of basic and diluted net income (loss) per share is as follows (in thousands):

 

9



 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

Weighted average common shares outstanding for basic net income (loss) per share

 

32,858

 

33,532

 

Effect of dilutive securities:

 

 

 

 

 

Employee stock options

 

 

 

Weighted average shares outstanding for dilutive net income (loss) per share

 

32,858

 

33,532

 

 

The following common stock equivalents were excluded from the computation of diluted earnings per share because their impact was anti-dilutive (in thousands):

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

 

 

 

 

 

 

Employee stock options

 

4,263

 

4,424

 

 

(6) Comprehensive Income (Loss)

 

Comprehensive loss for the comparative periods was as follows (in thousands):

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

 

 

 

 

 

 

Net loss

 

$

(6,002

)

$

(3,396

)

Other comprehensive income (loss):

 

 

 

 

 

Unrealized gain on short-term investments

 

16

 

196

 

Unrealized loss on long-term investments

 

 

(415

)

Foreign currency translation adjustments

 

(68

)

(25

)

Comprehensive loss

 

$

(6,054

)

$

(3,640

)

 

(7)  Fair Value

 

Effective January 1, 2008, the Company adopted SFAS 157, Fair Value Measurements (SFAS 157). In February 2008, the FASB issued Staff Position No. SFAS 157-2, “Effective Date of FASB Statement No. 157,” which provides a one year deferral of the effective date of SFAS 157 for non-financial assets and non-financial liabilities, except those that are recognized or disclosed in the financial statements at fair value at least annually. Therefore, the Company has adopted the provisions of SFAS 157 with respect to its financial assets and liabilities only. SFAS 157 defines fair value, establishes a framework for measuring fair value in GAAP, and enhances disclosures about fair value measurements. Fair value is defined under SFAS 157 as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value under SFAS 157 must maximize the use of observable inputs and minimize the use of unobservable inputs. The standard describes a fair value hierarchy based on three levels of inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value which are the following:

 

·

 

Level 1 – Quoted prices in active markets for identical assets or liabilities.

 

10



 

·

 

Level 2 – Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

 

 

 

·

 

Level 3 – Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

The adoption of this statement did not have a material impact on the Company’s consolidated results of operations and financial condition.

 

In accordance with SFAS 157, the following table represents the Company’s fair value hierarchy for its financial assets (cash equivalents and investments) measured at fair value on a recurring basis as of March 31, 2008 (in thousands):

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

Money Market funds

 

$

7,745

 

 

 

 

 

$

7,745

 

Commercial paper

 

 

 

$

6,496

 

 

 

6,496

 

Corporate notes and bonds

 

 

 

11,376

 

 

 

11,376

 

U.S. Government agency securities

 

 

 

27,721

 

 

 

27,721

 

State and Municipal securities

 

 

 

8,639

 

4,785

 

13,424

 

Auction rate preferred stocks

 

 

 

 

 

13,025

 

13,025

 

 

 

$

7,745

 

$

54,232

 

$

17,810

 

$

79,787

 

 

As of March 31, 2008, level 3 assets consist of approximately $18.2 million in par value auction rate securities with investment grades of AAA or AA. Auction rate securities are long-term bonds or preferred stocks that act like short-term debt, where interest rates reset in Dutch auctions held daily, weekly or monthly and have historically provided liquidity for these investments. Despite the long-term contractual maturities of the underlying securities, all of these securities were considered available for sale and were available to fund the Company’s current operations as of December 31, 2007. In February and March 2008, uncertainties in the credit markets caused substantially all auctions of the Company’s securities to be unsuccessful. An unsuccessful auction is an event when there are fewer securities bid for than are available for sale. Upon an unsuccessful auction, the interest rate is reset at a predetermined rate. Given that substantially all of the auctions were unsuccessful in the last two months of the current quarter, we reclassified the investments from short-term to long-term due to illiquidity. Additionally, we recorded a temporary impairment of $415,000 in other comprehensive income due to our inability to liquidate these securities at par. Our determination of fair value was based upon broker statements, assumed risk premiums, and assumed work out periods, using a discounted cash flow model.

 

The Company’s management believes that the unrealized losses are temporary, and it has the ability and intent to hold the investments until at least substantially all of the cost of the investment is recovered. Additionally, we believe the impairment is temporary due primarily to the credit quality of the underlying securities. Because failed auctions typically result in above-market interest rates, we believe the issuers will re-finance the obligations at more attractive rates in the near future. Additionally, we have been notified of the intention that certain of our auction rate securities will be purchased at par by the issuers beginning in the second quarter of 2008. To date, we have collected all

 

11



 

interest payable on all of our auction rate securities when due. If the auction rate securities continue to experience unsuccessful auctions, or if the credit rating of the auction rate securities deteriorates, we may be required to realize an impairment charge as “other than temporary.”  While the recent auction failures will limit our ability to liquidate these investments for some period of time, we do not believe the auction failures will materially impact our ability to fund our working capital needs, capital expenditures, or other business requirements. The Company will continue to monitor the state of the credit markets and its potential impact, if any, on the fair value and classification of our portfolio of auction rate securities.

 

(8) Stock-Based Compensation

 

On January 1, 2006, the Company adopted the provisions of Statement of Financial Accounting Standards No. 123(R), Share Based Payment, (“SFAS 123R”), for its stock-based compensation plans. Under SFAS 123R, stock-based compensation costs are recognized based on the estimated fair value at the grant date for all stock-based awards. The Company estimates grant date fair values using the Black-Scholes-Merton option pricing model, which requires assumptions of the life of the award and the stock price volatility over the term of the award. The Company records compensation cost of stock-based awards using the straight line method, which is recorded into earnings over the vesting period of the award.

 

The following table illustrates the stock-based compensation expense resulting from stock-based awards included in the condensed consolidated statement of operations (amounts in thousands):

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

Stock-based compensation expense:

 

 

 

 

 

Cost of software, hosting and support

 

$

58

 

$

77

 

Cost of professional services

 

125

 

153

 

Sales and marketing expenses

 

658

 

538

 

Research and development expenses

 

226

 

235

 

General and administrative expenses

 

235

 

263

 

Stock-based compensation expense

 

$

1,302

 

$

1,266

 

 

No stock-based compensation expense was capitalized during the three months ended March 31, 2007 or 2008.

 

Unrecognized compensation expense of outstanding stock options at March 31, 2008 was approximately $15 million, which is expected to be recognized over a weighted average period of 2.9 years.

 

The estimated weighted average fair value per share of stock options granted in the three months ended March 31, 2007 and 2008 was $7.95 and $5.27, respectively. Assumptions used to obtain the estimated fair values were:

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

Weighted average risk free rate

 

4.7%

 

2.6%

 

Expected term

 

4.3 yrs

 

4.6 yrs

 

Volatility

 

53%

 

55%

 

Dividend yield

 

0%

 

0%

 

 

12



 

Key assumptions used to estimate the fair value of stock awards are as follows:

 

Risk Free Rate: The risk-free rate is determined by reference to the U.S. Treasury yield curve in effect at or near the time of grant for the expected term of the award.

 

Expected Term: The expected term represents the period that the Company’s stock-based awards are expected to be outstanding and is determined based on historical experience of similar awards, giving consideration to the contractual term of the awards, vesting schedules and expectations of employee exercise behavior.

 

Volatility: The Company’s estimate of expected volatility is based on a combination of the Company’s historical volatility, and peer-company volatilities. The Company believes the combined data points are more representative of future stock price trends than its historical volatility alone.

 

Dividend Yield: The dividend yield assumption is based on the Company’s history and expectation of dividend payouts.

 

Activity under the Company’s stock option plans for the three months ended March 31, 2008 was as follows (option shares in thousands):

 

 

 

 

Shares
available
for grant

 

Outstanding
options

 

Weighted
average
exercise
price per
share

 

Aggregate intrinsic
value (in
thousands)

 

Weighted
average
remaining
contractual
life (in years)

 

Balance at December 31, 2007

 

3,404

 

3,874

 

$

11.81

 

 

 

 

 

Annual reserve addition (1)

 

1,000

 

 

 

 

 

 

 

Granted

 

(776

)

776

 

10.95

 

 

 

 

 

Exercised

 

 

(116

)

3.55

 

 

 

 

 

Forfeited, expired, exchanged or canceled (2)

 

109

 

(110

)

14.97

 

 

 

 

 

Balance at March 31, 2008

 

3,737

 

4,424

 

$

11.80

 

$

9,614

 

7.5

 

 

 

 

 

 

 

 

 

 

 

 

 

Vested or expected to vest at March 31, 2008

 

 

 

4,083

 

$

11.65

 

$

9,453

 

7.3

 

 

 

 

 

 

 

 

 

 

 

 

 

Exercisable at March 31, 2008

 

 

 

2,124

 

$

9.57

 

$

8,470

 

6.0

 

 


(1)        The 2004 Equity Incentive Plan provides for an automatic, annual increase on the first of each year in an amount equal to the lesser of: a) 1,000,000 shares; b) 4% of the number of outstanding common shares on the last day of the previous fiscal year; or c) such lesser amount as determined by the board of directors. The annual automatic increase has been approved by shareholders through December 31, 2014.

 

(2)        Shares forfeited, expired, exchanged or canceled under the 1998 Long-Term Equity Incentive and Stock Option Plan are not available for re-grant under the 2004 Equity Incentive Plan.

 

The total intrinsic value of options exercised during the three months ended March 31, 2007 and 2008 was $2.1 million and $2.6 million, respectively.

 

From time to time the Company may grant options to purchase stock to consultants. The Company accounts for consultant stock options in accordance with SFAS 123 and Emerging Issues Task Force Consensus Issue No. 96-18 (“EITF 96-18”), Accounting for Equity Instruments that are Issued to Other Than Employees for Acquiring, or in Conjunction With Selling, Goods or Services. Compensation expense for the grant of stock options to consultants is determined based on the estimated fair value of the stock options at the measurement date as defined in EITF 96-18

 

13



 

and is recognized over the vesting period. There were no stock options granted to non-employees for the three months ended March 31, 2007 or 2008.

 

(9)  Commitments and Contingencies

 

Warranties and Indemnification

 

The Company’s on demand application service is typically warranted to perform in accordance with its user documentation.

 

The Company’s arrangements generally include certain provisions for indemnifying customers against liabilities if its products or services infringe a third-party’s intellectual property rights. To date, the Company has not incurred any material costs as a result of such indemnifications and has not accrued any liabilities related to such obligations in the accompanying consolidated financial statements.

 

The Company has entered into service level agreements with a small number of its customers warranting certain levels of uptime reliability and permitting those customers to receive credits or terminate their license agreements in the event that the Company fails to meet those levels. To date, the Company has not provided any material credits, or cancelled any agreements related to these service level agreements.

 

The Company has also agreed to indemnify its directors and executive officers for costs associated with any fees, expenses, judgments, fines and settlement amounts incurred by any of these persons in any action or proceeding to which any of those persons is, or is threatened to be, made a party by reason of the person’s service as a director or officer, including any action by the Company, arising out of that person’s services as the Company’s director or officer or that person’s services provided to any other company or enterprise at the Company’s request.

 

Litigation

 

From time to time, the Company is involved in legal proceedings arising in the normal course of business. The Company believes that the resolution of these matters will not have a material effect on the Company’s consolidated financial position, results of operations or liquidity.

 

(10)  Income Taxes

 

As of December 31, 2007 and March 31, 2008, we had an insignificant amount of unrecognized tax benefits, none of which would materially affect our effective tax rate if recognized. We do not expect that the amount of unrecognized tax benefits will significantly increase or decrease within the next twelve months. Our policy is to recognize interest and penalties on unrecognized tax benefits as interest expense and other expense, respectively, in the Consolidated Statements of Operations. The amount of interest and penalties for the three months ended March 31, 2008 was insignificant. Tax years beginning in 2004 are subject to examination by taxing authorities, although net operating loss and credit carryforwards from all years are subject to examinations and adjustments for at least three years following the year in which the attributes are used. The U.S. jurisdictions subject to examination include Montana, California, New Jersey, Illinois and the foreign jurisdictions subject to examination include the United Kingdom, Germany, Australia, Japan, Canada, and the Netherlands.

 

14



 

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

 

Cautionary Statement

 

In this report, the terms “RightNow Technologies,” “RightNow,” “Company,” “we,” “us” and “our” refer to RightNow Technologies, Inc. and its subsidiaries.

 

All statements included or incorporated by reference in this report, other than statements or characterizations of historical fact, are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based on our current expectations, estimates and projections about our industry, management’s beliefs, and certain assumptions made by us, all of which are subject to change. Forward-looking statements can often be identified by words such as “anticipates,” “expects,” “intends,” “plans,” “predicts,” “believes,” “seeks,” “estimates,” “may,” “will,” “should,” “would,” “could,” “potential,” “continue,” “ongoing,” similar expressions, and variations or negatives of these words, and include, but are not limited to, statements regarding projected results of operations, market acceptance and performance of our products, our ability to retain and hire key executives, sales and technical personnel and other employees in the numbers, with the capabilities, and at the compensation levels needed to implement our business and product plans, the competitive nature of and anticipated growth in our markets, our accounting estimates, assumptions and judgments, and management’s future strategic plans. These forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that are difficult to predict and that could cause our actual results to differ materially and adversely from those expressed in any forward-looking statement. The risks and uncertainties referred to above include, but are not limited to, our ability to develop or acquire, introduce, market and gain market acceptance for new products and enhancements to existing products in a cost-effective and timely manner; the ability to gain and retain key customers; competitive pressures and other similar factors such as the availability and pricing of competing products and technologies and the resulting effects on sales and pricing of our products; the rate at which our present and future customers adopt our existing and future products and services; our ability to expand operations; possible fluctuations in our operating results including our revenue mix and our rate of growth; the credit markets and potential impact on the recoverability of our portfolio of auction rate securities;  fluctuations in our operating results from the impact of stock-based compensation expense; our ability to manage and expand our partner relationships; interruptions or delays in our hosting operations; breaches of our security measures; our ability to expand, retain and motivate our employees and manage our growth; the impact of potential acquisitions, if any; and various other factors, some of which are described under the section below entitled “Risk Factors,” in Item 1A of this report. These forward-looking statements speak only as of the date of this Report. We undertake no obligation to revise or update publicly any forward-looking statement for any reason, except as otherwise required by law.

 

Overview

 

We are a leading provider of customer experience management software solutions for companies of all sizes. Our on demand software is designed to go beyond traditional customer relationship management (“CRM”) solutions to help companies improve their customer experiences, while reducing operating costs. Our software solutions support a business’s external customer-facing channels as well as sales, marketing and customer service operations.

 

We released our initial version of RightNow Service in 1997. This product addressed the new customer service needs resulting from the increasing use of the Internet as a customer service channel. Since then, we have significantly enhanced product features and functionality to address customer service needs across multiple communication channels, including web, interactive voice, email, chat, telephone and proactive outbound email communications. We have also added

 

15



 

several products that are complementary to our RightNow Service solution, including RightNow Marketing, RightNow Sales, and RightNow Feedback which automate aspects of marketing campaigns sales operations, and customer monitoring. In February 2007, we released RightNow 8, our newest enterprise-class solution for service, sales and marketing. To date, approximately 80% to 90% of our revenue has been generated by the RightNow Service suite.

 

We have approximately 1,800 customers worldwide as of March 31, 2008, and our products served more than 463 million customer interactions, or unique sessions hosted by our solutions, during the quarter ended March 31, 2008. We distribute our solutions primarily through direct sales efforts and to a lesser extent through indirect channels.

 

2007 Business Model Changes

 

To better align with industry practice, beginning in 2007 we changed our product offerings from software license arrangements to subscription service arrangements ( “subscriptions”). As the industry and business models for “software as a service” or “on demand” have evolved, the standard form of arrangements is service agreements rather than licenses of software that can be hosted. We believe providing offerings in this manner will ultimately increase our market penetration.

 

Accordingly, our terms of sale have been revised to provide a hosting service where the customer accesses the software and data via the Internet. Our previous terms of sale provided the customer a software license, and for no additional fee, the customer could choose to have the software hosted by us, by themselves or by someone else. Revenue recognition for service arrangements was not materially different from our previous term license arrangements, as revenue under either type of contract is generally recognized ratably over the period of the agreement. As a result of this change, the amount of deferred revenue on the balance sheet under subscription arrangements decreased because only the amount currently due from the customer is recorded to accounts receivable and deferred revenue. Conversely, under software license arrangements, the full customer commitment is recorded to receivables and deferred revenue whether or not currently due because we have the contractual right to collect the entire arrangement fee.

 

Also beginning in 2007, we essentially discontinued selling perpetual software licenses, which represented 21% of our revenue in 2006. Consequently, perpetual software licenses were 2% of revenue in 2007 and less than 1% for the period ending March 31, 2008.

 

Lastly, our policy for subscription contract acquisition costs, such as sales commissions, is to recognize them in proportion to the revenue recognized under the subscription arrangement.

 

Sources of Revenue

 

Our revenue is comprised of fees for software, hosting and support, and fees for professional services. “Recurring revenue,” referred to in this report includes software, hosting and support revenue from term license and subscription agreements.

 

Software, hosting and support revenue includes fees earned under subscriptions and software license arrangements. Subscription arrangements include a bundled fee to access the software and data through our hosting services, and support services. Subscription revenue is

 

16



 

recorded ratably over the length of the agreement. Our hosting services provide remote management and maintenance of our software and customers’ data which is physically located in third party facilities. Customers access “hosted” software and data through a secure Internet connection. Support services include technical assistance for our software products and unspecified product upgrades and enhancements on a when and if available basis.

 

License arrangements can be over time (a “term” license) or perpetual. For term licenses, software, hosting and support revenue is recognized ratably over the length of the agreement. Perpetual license revenue is generally recorded in full upon delivery of the license, and the hosting and support elements are recognized ratably over the contractual period. Perpetual license revenue ranged from 21% to 25% of our total revenue from 2004 through 2006. Due to the change in our business model noted above, perpetual license revenue decreased from 22% of revenue in the quarter ended March 31, 2006 to 2% of revenue in the quarter ended March 31, 2007 to less than 1% of revenue in the quarter ended March 31, 2008.

 

Our sales arrangements generally provide customers with the right to use our software up to a maximum number of users or transactions. A number of our arrangements provide for additional fees for usage above the maximum, which are billed and recognized into revenue when determinable and earned.

 

Professional services revenue is comprised of revenue from consulting, education, development services, and reimbursement of related travel costs. Consulting and education services include implementation and best practices consulting. Development services include customizations and integrations for a client’s specific business application. Professional services revenue was approximately 22% of total revenue in the past three annual periods ending in December.

 

Professional services are typically sold with initial sales arrangements and then periodically over the client engagement. Our typical education courses are billed on a per person, per class basis.

 

Depending on the size and complexity of the client project, our consulting or development services contracts are either fixed price/fixed scope or, more frequently, billed on a time and materials basis. We have determined that the professional services element of our software and subscription arrangements is not essential to the functionality of the software.

 

Cost of Revenue and Operating Expenses

 

Cost of Revenue. Cost of revenue consists primarily of salaries and related expenses (such as employee benefits and payroll taxes) for our hosting, support and professional services organizations, third-party costs and equipment depreciation relating to our hosting services, third-party costs for voice enabled CRM applications, travel expenses related to providing professional services to our clients, amortization of acquired intangible assets and allocated overhead. We allocate most overhead expenses, such as office supplies, computer supplies, utilities, rent, and depreciation for furniture and equipment, based on headcount. As a result, overhead expenses are reflected in each cost of revenue and operating expense category.

 

17



 

Sales and Marketing Expenses. Sales and marketing expenses consist primarily of salaries and related expenses for employees in sales and marketing, including commissions and bonuses, advertising, marketing events, corporate communications, product management expenses, travel costs and allocated overhead. For subscription arrangements, we expense the related sales commission in proportion to the revenue recognized. We expense our sales commissions on license arrangements when earned, which is typically at the time the related sale is invoiced to the client. Since the majority of our revenue prior to 2007 was from license arrangements recognized over time, we have experienced a delay between increasing sales and marketing expenses and the recognition of corresponding revenue. We expect significant additional increases in sales and marketing expenses in absolute dollars as we continue to hire additional sales and marketing personnel and increase the level of marketing activities.

 

Research and Development Expenses. Research and development expenses consist primarily of salary and related expenses for development personnel and costs related to the development of new products, enhancement of existing products, translation fees, quality assurance, testing and allocated overhead. To date, we have not capitalized any software development costs because the timing of the commercial releases of our products has substantially coincided with the attainment of technological feasibility. As a result, research and development costs have been expensed as incurred. We intend to continue to expand and enhance our product offerings. To accomplish this, we plan to hire additional personnel and, from time to time, contract with third parties. We expect that research and development expenses will increase in absolute dollars as we seek to expand our technology and product offerings.

 

General and Administrative Expenses. General and administrative expenses consist primarily of salary and related expenses for management, finance and accounting, legal, information systems and human resources personnel, professional fees, other corporate expenses and allocated overhead. We anticipate that we will incur additional employee salaries and related expenses, professional service fees and insurance costs related to the growth of our business and operations.

 

Critical Accounting Policies and Estimates

 

Our financial statements and accompanying notes are prepared in accordance with U.S. generally accepted accounting principles. Preparing financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. These assumptions are affected by management’s application of accounting policies. Our critical accounting policies include revenue recognition, valuation of receivables and deferred tax assets, and accounting for share-based compensation.

 

Revenue Recognition

 

Beginning in 2007, we changed the nature of our sales arrangements from license arrangements to subscription arrangements (“subscriptions”). For a bundled fee, subscriptions provide the customer with access to the software and data over the Internet, or on demand, and provide technical support services and software upgrades when and if available. Under subscriptions, customers do not have the right to take possession of the software and, in accordance with EITF 00-03, such arrangements are considered service contracts which are outside the scope of SOP 97-2. Accordingly, we account for sales of subscriptions under

 

18



 

EITF 00-21 and recognize subscription revenue ratably over the length of the agreement in accordance with SAB 104.

 

Prior to 2007, we sold the majority of products under software license arrangements (“licenses”) and accounted for them in accordance with SOP 97-2 and SOP 98-9. Licenses generally include multiple elements that are delivered up front or over time. For example, under a term license, we deliver the software up front and provide hosting and support services over time. Fair value for each element in a license does not exist since none are sold separately, and consequently, the bundled revenue is recognized ratably over the length of the agreement. Under a perpetual license, vendor specific objective evidence of fair value of the hosting and support elements is based on the price charged at renewal when sold separately, and therefore the license element is recognized immediately into revenue upon delivery using the residual method, and the hosting and support elements are recognized ratably over the contractual term.

 

The application of these rules requires judgment, including the identification of individual elements in multiple element arrangements, whether there is objective and reliable evidence of fair value, including vendor specific objective evidence (“VSOE”) of fair value, for some or all elements. Changes to the elements in our sales arrangements, or our ability to establish VSOE or fair value for those elements, may result in a material change to the amount of revenue recorded in a given period.

 

Fees charged for professional services are recognized when delivered. We believe the fees for professional services qualify for separate accounting because: a) the services have value to the customer on a stand-alone basis; b) objective and reliable evidence of fair value exists for these services; and c) performance of the services is considered probable and does not involve unique customer acceptance criteria.

 

Our standard payment terms are net 30, although payment within 90 days is considered normal. We periodically provide extended payment terms and we consider any fees due beyond 90 days to not be fixed and determinable. In such cases, judgment is required in determining the appropriate timing of revenue recognition. Changes to our practice of providing extended payment terms or providing concessions following a sale, may result in a material change to the amount of revenue recorded in a given period.

 

Allowance for doubtful accounts

 

We regularly assess the collectability of outstanding customer invoices and, in so doing, we maintain an allowance for estimated losses resulting from the non-collection of customer receivables. In estimating this allowance, we consider factors such as: historical collection experience; a customer’s current creditworthiness; customer concentration; age of the receivable balance; and general economic conditions that may affect a customer’s ability to pay. Actual customer collections could differ from our estimates and exceed our related loss allowance.

 

Income Taxes

 

We record income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax

 

19



 

bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date. When applicable, a valuation allowance is established to reduce any deferred tax asset when it is determined that it is more likely than not that some portion of the deferred tax asset will not be realized.

 

We have established a valuation allowance equal to our net deferred tax assets due to uncertainties regarding the realization of our net operating loss carryforwards, tax credits, and deductible timing differences. The uncertainty of realizing these benefits is based primarily on our lack of taxable earnings.

 

Effective January 1, 2007, the Company adopted Financial Accounting Standards Board (FASB) Interpretation No. 48, Accounting for Uncertainties in Income Taxes, an Interpretation of FASB Statement No. 109 (FIN 48) and it did not have a significant impact on our financial position or results of operations. FIN 48 requires judgment when evaluating tax positions. The ultimate resolution of tax issues may result in a significant change to our recorded tax assets and liabilities.

 

Share-Based Compensation

 

We have adopted the provisions of Statement of Financial Accounting Standards No. 123(R), Share Based Payment, (“SFAS 123R”) beginning January 1, 2006 utilizing the modified prospective method. This statement requires the cost of share-based payment arrangements to be recorded in the statement of operations. Prior to 2006, the estimated cost of share-based payment arrangements was disclosed in a footnote to the financial statements. Share-based compensation amounts are affected by our stock price as well as our assumptions regarding the expected volatility of our stock, our employee stock option exercise forfeitures, and the related income tax effects. Our assumptions are based primarily on our historical information, some of which was developed when we were a private company.

 

Recently Issued Accounting Standards

 

Effective January 1, 2008, the Company adopted SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities (SFAS 159). SFAS 159 allows an entity the irrevocable option to elect fair value for the initial and subsequent measurement for specified financial assets and liabilities on a contract-by-contract basis. The Company did not elect to adopt the fair value option under this statement for any items that are not already required to be measured at fair value in accordance with U.S. generally accepted accounting procedures.

 

In December 2007, the Financial Accounting Standards Board issued Statement No. 141 (revised 2007), Business Combinations (SFAS 141R). SFAS 141R requires the use of “full fair value” to record all the identifiable assets, liabilities, noncontrolling interests and goodwill acquired in a business combination. SFAS 141R is effective for fiscal years beginning on or after December 15, 2008. The requirements are effective for the Company beginning in the first quarter of fiscal 2009. We do not believe adoption of SFAS 141R will have a material effect on our financial statements.

 

20



 

In December 2007, the Financial Accounting Standards Board issued Statement No. 160, Noncontrolling Interests in Consolidated Financial Statements (SFAS 160). SFAS 160 requires the noncontrolling interests (minority interests) to be recorded at fair value and reported as a component of equity. SFAS 160 is effective for fiscal years beginning on or after December 15, 2008. The requirements are effective for the Company beginning in the first quarter of fiscal 2009. We do not believe adoption of SFAS 160 will have a material effect on our financial statements.

 

Results of Operations

 

The following table sets forth certain consolidated statements of operations data for each of the periods indicated, expressed as a percentage of total revenue:

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

 

 

 

 

 

 

Revenue:

 

 

 

 

 

Software, hosting and support

 

77

%

75

%

Professional services

 

23

 

25

 

Total revenue

 

100

 

100

 

Cost of revenue:

 

 

 

 

 

Software, hosting and support

 

17

 

15

 

Professional services

 

20

 

22

 

Total cost of revenue

 

37

 

37

 

Gross profit

 

63

 

63

 

Operating expenses:

 

 

 

 

 

Sales and marketing

 

61

 

51

 

Research and development

 

17

 

14

 

General and administrative

 

11

 

11

 

Total operating expenses

 

89

 

76

 

Loss from operations

 

(26

)

(13

)

Interest and other income (expense), net

 

3

 

3

 

Loss before income taxes

 

(23

)

(10

)

Provision for income taxes

 

 

 

Net loss

 

(23

)%

(10

)%

 

The following table sets forth our on demand customer interactions and our revenue by type and geography expressed as a percentage of total revenue for each of the periods indicated.

 

 

 

Three Months Ended
March 31,

 

 

 

2007

 

2008

 

 

 

 

 

 

 

Customer interactions (in millions)

 

352

 

463

 

Revenue by type:

 

 

 

 

 

Recurring (subscriptions, term licenses, hosting and support)

 

75

%

75

%

Perpetual licenses

 

2

 

 

Professional services

 

23

 

25

 

Revenue by geography in:

 

 

 

 

 

United States

 

72

%

67

%

Europe

 

21

 

25

 

Asia Pacific

 

7

 

8

 

 

21



 

Quarter Overview

 

Total revenue for the first quarter of 2008 increased 28% over the first quarter of 2007. Within software, hosting and support, during the first quarter of 2008 recurring revenue increased 27% and perpetual revenue decreased 76% compared to the first quarter of 2007. Recurring revenue increased in the first quarter of 2008 due to growth in the number of customers and higher average revenue per customer. The much lower perpetual license revenue resulted from our business model change in early 2007 in which we essentially eliminated sales of new perpetual licenses.

 

During the quarter ended March 31, 2008, we increased salaries through our annual merit process effective January 1, 2008, continued to invest in our operations by adding professional service personnel and partners to support our solution offerings, added sales and marketing personnel to focus on new customer acquisition, and  promoted a new Chief Financial Officer and created a new Chief Operating Officer position. These investments increased total expenses in absolute dollars, but represented a 13% decrease as a percentage of revenue during the quarter ended March 31, 2008 compared to the quarter ended March 31, 2007, and improved our operating loss as a percentage of revenue to 13% during the quarter ended March 31, 2008 compared to 26% during the quarter ended March 31, 2007.

 

For the quarter ended March 31, 2008, we generated $3.7 million of cash from operations compared to $5.4 million of cash from operations in the quarter ended March 31, 2007. We increased our cash and investment balances to $98.9 million at March 31, 2008 from $82.5 million one year earlier. During the current quarter, we reclassified approximately $18.2 million par value auction rate securities to long-term investments due to liquidity concerns as further described in Note 7.

 

As of March 31, 2008, we had an accumulated deficit of $60.3 million. This deficit and our historical operating losses were primarily the result of costs incurred in the development, sales and marketing of our products and for general and administrative purposes.

 

Three Months Ended March 31, 2008 and 2007

 

Revenue

 

 

 

Three Months Ended March 31,

 

(Amounts in thousands)

 

2007

 

2008

 

Percent
Change

 

 

 

 

 

 

 

 

 

Software, hosting and support:

 

 

 

 

 

 

 

Recurring

 

$

19,225

 

$

24,412

 

27

%

Perpetual

 

594

 

144

 

(76

)

Professional services

 

5,883

 

8,342

 

42

 

Total revenue

 

$

25,702

 

$

32,898

 

28

%

 

22



 

Total revenue for the three months ended March 31, 2008 was $32.9 million, an increase of $7.2 million, or 28%, over total revenue of $25.7 million for the three months ended March 31, 2007.

 

Software, hosting and support revenue, consisting of recurring revenue and perpetual license revenue, for the three months ended March 31, 2008 increased $4.7 million, or 24%, over the three months ended March 31, 2007. Recurring revenue comprised of subscriptions, term licenses, hosting and support, increased 27% over the 2007 quarter primarily due to a 27% increase in the average revenue per customer. We believe our latest product, RightNow 8, appeals to large customers because of its robust performance characteristics, which in turn has driven larger average purchase volumes and higher average selling prices per customer. Average revenue per customer increased as a result of sales of capacity additions, contract renewals and new products. Customer interactions, a measure of unique customer sessions hosted in our data centers and customer usage, exceeded 463 million in the quarter ended March 31, 2008 as compared to 352 million in the quarter ended March 31, 2007.

 

Perpetual license revenue decreased $0.5 million, or 76%, in the quarter ended March 31, 2008 compared to the quarter ended March 31, 2007, and decreased as a percentage of total revenue to less than 1% in the first quarter of 2008 from 2% in the first quarter of 2007. Beginning January 2007, we virtually eliminated the sale of perpetual arrangements.

 

Professional services revenue increased $2.5 million, or 42%, in the quarter ended March 31, 2008 over the comparable 2007 quarter, due to improved billable utilizations and increased professional service revenue per customer. In addition, many customers have purchased professional services as part of their plans to upgrade to RightNow 8. Customers generally purchase professional services with initial license or subscription arrangements, and periodically over the life of the contract.

 

The mix of professional services revenue affects our profitability from period-to-period due to the lower gross profit earned on professional services as compared to the gross profit earned on software, hosting and support revenue. Professional services revenue represented 25% and 23% of total revenue in the three months ended March 31, 2008 and 2007, respectively. We expect professional services revenue to range between 20% and 25% of total revenue in the future.

 

Revenue from European customers grew to represent 25% of total revenue in the quarter ended March 31, 2008 from 21% of total revenue in the quarter ended March 31, 2007, while revenue from Asia Pacific clients increased to represent 8% of total revenue in the quarter ended March 31, 2008 from 7% of total revenue in the quarter ended March 31, 2007. Total revenue outside the United States increased to represent 33% of total revenue in the quarter ended March 31, 2008 from 28% in the quarter ended March 31, 2007, due to our focus of increasing sales penetration in global markets.

 

Cost of Revenue

 

 

 

Three Months Ended March 31,

 

(Amounts in thousands)

 

2007

 

2008

 

Percent
Change

 

Software, hosting and support

 

$

4,394

 

$

5,035

 

15

%

Professional services

 

5,171

 

7,285

 

41

 

Total cost of revenue

 

$

9,565

 

$

12,320

 

29

%

 

23



 

Total cost of revenue for the quarter ended March 31, 2008 was $12.3 million, an increase of $2.8 million, or 29%, over total cost of revenue of $9.6 million for the quarter ended March 31, 2007.

 

Cost of software, hosting and support increased $641,000, or 15%, in the first quarter of 2008 over the first quarter of 2007 due to increased voice and non-voice hosting volume, increased depreciation expense, staff additions in our hosting and technical support operations and increased annual salaries. Adding increased bandwidth to assist with voice and non-voice hosting volume increased costs $333,000 in the quarter ended March 31, 2008 compared to the quarter ended March 31, 2007. Capacity additions to our data centers, which occurred in 2007, combined with development of new language packages, increased depreciation expense in the first quarter of 2008 by $143,000 over the first quarter of 2007. Average employee count in our hosting and technical support operations was 84 during the first quarter of 2008 quarter as compared to 78 during the first quarter of 2007, which increased salaries and related expenses by $58,000. As a percent of the associated revenue, software, hosting and support costs were 21% in the quarter ended March 31, 2008 compared to 22% in the quarter ended March 31, 2007.

 

Cost of professional services increased $2.1 million, or 41%, in the quarter ended March 31, 2008 over the quarter ended March 31, 2007 due to employee staff additions and annual merit increase in salaries. Average employee count in our professional services organization grew to 153 during the first quarter of 2008 from 139 during the first quarter of 2007, which increased salaries and bonus expenses by $1.0 million. Increased utilization of third-party partners used to assist in the deployment of professional services increased by $512,000. Also, we incurred expense of $304,000 associated with international recruitment and short-term incentive program created for delivery of previously purchased service. As a percent of the associated revenue, professional services costs remained relatively constant at 87% in the quarter ended March 31, 2008 compared to 88% in the quarter ended March 31, 2007. Employee and/or partner training and customer scheduling requirements can cause the cost of professional services to fluctuate as a percentage of revenue. We expect professional services costs to range between 80% and 85% of the associated revenue in 2008.

 

Operating Expenses

 

 

 

Three Months Ended March 31,

 

(Amounts in thousands)

 

2007

 

2008

 

Percent
Change

 

 

 

 

 

 

 

 

 

Sales and marketing

 

$

15,727

 

$

16,818

 

7

%

Research and development

 

4,296

 

4,486

 

4

 

General and administrative

 

2,860

 

3,516

 

23

 

Total operating expenses

 

$

22,883

 

$

24,820

 

8

%

 

Sales and Marketing Expenses

 

Sales and marketing expenses of $16.8 million in the first quarter of 2008 were 7%, or $1.1 million, greater than sales and marketing expenses of $15.7 million in the first quarter of 2007. Sales incentives increased $1.1 million in the first quarter of 2008 due to the 27% increase in recurring revenue compared to the first quarter of 2007. Annual merit salary increases resulted in $472,000 of higher salaries for our sales and marketing professionals, despite average

 

24



 

employee count in our sales and marketing organizations remaining relatively constant at 264 during the quarter ended March 31, 2008 compared to 262 in the quarter ended March 31, 2007. These costs were partially offset by a reduction in direct marketing and advertising costs of $403,000 in the quarter ended March 31, 2008 compared to the quarter ended March 31, 2007.

 

As noted above under “2007 Business Model Changes,” we changed the nature of our sales arrangements from licenses to subscriptions beginning in 2007. Under license arrangements, we expense sales incentives when earned, which is typically upon contract signing. Under subscription arrangements, we defer the related sales incentive costs and expense them in proportion to the revenue recognized. We deferred $1.6 million of sales incentives earned on subscription sales in the first quarter of 2008, as compared to $1.1 million of deferred sales incentives in the first quarter of 2007. Net sales incentive expense in the quarter ending March 31, 2008 was $3.2 million compared to $2.1 million in the quarter ended March 31, 2007.

 

Research and Development Expenses

 

Research and development expenses of $4.5 million in the three months ended March 31, 2008 were $200,000, or 4%, more than research and development expenses of $4.3 million in the three months ended March 31, 2007, primarily due to annual merit salary increases. Average employee count in our research and development organization remained relatively constant at 132 during the first quarter of 2008 compared to 133 during the first quarter of 2007.

 

General and Administrative Expenses

 

General and administrative expenses increased $656,000, or 23%, in the first quarter of 2008 over the first quarter of 2007, due to the annual merit salary increases combined with the creation of a new Chief Operating Officer position, increased outside services pertaining to certain information technology investments and legal services. Average employees in our general and administrative organization were 71 during the first quarter of 2008 compared to 69 during the first quarter of 2007, which combined with the creation of the new Chief Operating Officer position increased salaries and related expenses by $233,000. In addition outside services pertaining to certain information technology investments increased general and administrative expenses by $132,000 and legal services increased $129,000.

 

Stock-Based Compensation Expense

 

Total stock-based compensation expense for the three months ended March 31, 2008 and 2007 was $1.3 million. For the full year 2008, stock-based compensation expense is expected to be approximately $6.6 million compared to $5.5 million for the full year 2007. The year-over-year increase in stock-based compensation expense results primarily from growth in the fair market value of our stock since our initial public offering in 2004, which in turn drives growth in the estimated fair value of our stock options and the corresponding expense.

 

Interest and Other Income (Expense), Net

 

 

 

Three Months Ended March 31,

 

(Amounts in thousands)

 

2007

 

2008

 

Percent
Change

 

 

 

 

 

 

 

 

 

Interest income

 

$

886

 

$

924

 

4

%

Interest expense

 

(2

)

(4

)

n/m

 

Other income (expense)

 

(56

)

18

 

n/m

 

Total interest and other income (expense), net

 

$

828

 

$

938

 

13

%

 

25



 

Interest income increased 4% in the first quarter of 2008 over the first quarter of 2007 due to growth in our cash and investment balances. Despite the growth in these balances investment yields have declined along with the periodic decreases in the federal funds rate. Our investment portfolio consists primarily of investment-grade government and corporate debt instruments. Other income (expense) consists primarily of gains or losses on asset sales and foreign currency transaction gains or losses.

 

Provision for Income Taxes

 

The provision for income taxes of $92,000 in the first quarter of 2008 consists primarily of the state and foreign taxes payable. Our effective tax rate differs from the federal statutory rate primarily due to the utilization of net operating loss carryforwards, tax credits, federal alternative minimum taxes, foreign rate differentials, and non-deductible meal and entertainment expenses. Our effective tax rate in 2008 will depend on a number of factors, such as the amount and mix of stock-based compensation expense to be recorded under SFAS 123R, the level of business in state and foreign tax jurisdictions, management’s expectation of the realization of deferred tax assets and the associated valuation allowance, and other factors.

 

Liquidity and Capital Resources

 

 

 

Three Months Ended March 31,

 

(Amounts in thousands)

 

2007

 

2008

 

Percent
Change

 

Cash, cash equivalents and short-term investments

 

$

82,477

 

$

81,176

 

(2

)%

Long-term investments

 

 

17,810

 

100

%

Cash provided by operating activities

 

5,360

 

3,670

 

(32

)%

 

At March 31, 2008, cash, cash equivalents, and short-term investments, totaled $81.2 million. In addition to our cash and short-term investments, other sources of liquidity at March 31, 2008 included a $3.0 million bank line of credit facility, under which there have been no borrowings.

 

Operating activities provided $3.7 million of cash during the quarter ended March 31, 2008 compared to $5.4 million in the quarter ended March 31, 2007. Cash flow from operations can vary significantly from quarter-to-quarter for many reasons, including the timing of business in a given period, and customer payment preferences and patterns. Operating activities provided $7.4 million from collection of receivables, $2.3 million from an increase in accounts payable and accrued liabilities, and $3.2 million from depreciation, amortization, and stock-based compensation, offset by a $3.4 million reduction in deferred revenue a $1.5 million payment of commissions and bonuses, and $900,000 reduction in prepaid and other current assets. These sources and uses of operating cash flows and the $3.4 million net loss incurred as of March 31, 2008, were the primary factors resulting in the decrease in cash provided by operating activities in the quarter ended March 31, 2008 compared to the quarter ended March 31, 2007.

 

26



 

We have generated cash from operations from increasing sales and the upfront billing of our sales arrangements, which is typically reflected in accounts receivable and deferred revenue. Beginning in 2007, our change to subscriptions from license arrangements requires that we no longer record additions to term receivables, and consequently, we expect term receivables to gradually decline on our balance sheet.

 

The allowance for uncollectible accounts receivable represented approximately 6% of current accounts and term receivables at March 31, 2008 and 5% at December 31, 2007, respectively. We regularly assess the adequacy of the allowance for doubtful accounts. Actual write-offs could exceed our estimates and adversely affect operating cash flows in the future.

 

Investing activities used $3.5 million in the three months ended March 31, 2008, consisting of a $2.0 million purchase of short-term investments, and $1.5 million of capital asset additions, which consisted primarily of equipment acquisitions for our hosting operations and employee growth. Capital asset additions are expected to range between $7 million and $8 million for 2008.

 

Financing activities provided $456,000 in the quarter ended March 31, 2008, mostly from the exercise of employee stock options under our equity incentive plans and the excess tax benefits associated with stock option deductions.

 

As of March 31, 2008, level 3 assets consist of approximately $18.2 million in par value auction rate securities with investment grades of AAA or AA. Auction rate securities are long-term bonds or preferred stocks that act like short-term debt, where interest rates reset in Dutch auctions held daily, weekly or monthly and have historically provided liquidity for these investments. Despite the long-term contractual maturities of the underlying securities, all of these securities were considered available for sale and were available to fund the Company’s current operations as of December 31, 2007. In February and March 2008, uncertainties in the credit markets caused substantially all auctions of the Company’s securities to be unsuccessful. An unsuccessful auction is an event when there are fewer securities bid for than are available for sale. Upon an unsuccessful auction, the interest rate is reset at a predetermined rate. Given that substantially all of the auctions were unsuccessful in the last two months of the current quarter, we reclassified the investments from short-term to long-term due to illiquidity. Additionally, we recorded a temporary impairment of $415,000 in other comprehensive income due to our inability to liquidate these securities at par. Our determination of fair value was based upon broker statements, assumed risk premiums, and assumed work out periods, using a discounted cash flow model.

 

The Company’s management believes that the unrealized losses are temporary, and it has the ability and intent to hold the investments until at least substantially all of the cost of the investment is recovered. Additionally, we believe the impairment is temporary due primarily to the credit quality of the underlying securities. Because failed auctions typically result in above-market interest rates, we believe the issues will re-finance the obligations at more attractive rates in the near future. Additionally, we have been notified of the intention that certain of our auction rate securities will be purchased at par by the issuers beginning in the second quarter of 2008. To date, we have collected all interest payable on all of our auction rate securities when due. If the auction rate securities continue to experience unsuccessful auctions, or if the credit rating of the auction rate securities deteriorates, we may be required to realize an impairment charge as “other than temporary.”  While the recent auction failures will limit our ability to liquidate these investments for some period of time, we do not believe the auction failures will materially impact our ability to fund our working capital needs, capital expenditures, or other business requirements. The Company

 

27



 

will continue to monitor the state of the credit markets and its potential impact, if any, on the fair value and classification of our portfolio of auction rate securities.

 

We believe our existing cash and short-term investments, together with funds generated from operations, should be sufficient to fund operating and investment requirements for at least the next twelve months. Our future capital requirements will depend on many factors, including our rate of revenue growth and expansion of our sales and marketing activities, the possible acquisition of complementary products or businesses, the timing and extent of spending required for research and development efforts, and the continuing market acceptance of our products. To the extent that available funds are insufficient to fund our future activities, we may need to raise additional funds through public or private equity or debt financings. Additional equity or debt financing may not be available on terms favorable to us or at all.

 

Off-Balance Sheet Arrangements

 

As of March 31, 2008, we did not have any significant off-balance-sheet arrangements, as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated by the SEC.

 

Contractual Obligations and Commitments

 

There have been no material changes to our contractual obligations or commitments since December 31, 2007.

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

 

Foreign Currency Exchange Risk

 

Our results of operations and cash flows are subject to fluctuation due to changes in foreign currency exchange rates, particularly changes in the Euro, British pound, Australian dollar and Japanese yen, because our contracts are frequently denominated in local currency. In the future, we may utilize foreign currency forward and option contracts to manage currency exposures. We do not currently have any such contracts in place, nor did we enter into any such contracts during the quarters ended March 31, 2007 or March 31, 2008.

 

Interest Rate Sensitivity

 

Our investments consist of short-term and long-term interest-bearing securities, which are subject to credit and interest rate risk. Our portfolio is investment-grade and diversified among issuers and security types to reduce credit risk. We manage our interest rate risk by maintaining a large portion of our investment portfolio in instruments with short maturities or frequent interest rate resets. We also manage interest rate risk by maintaining sufficient cash and cash equivalents such that we are able to hold investments until maturity. If market interest rates were to increase by 100 basis points from the level at March 31, 2008, the fair value of our portfolio would decline by approximately $395,000.

 

28



 

Liquidation and Valuation Risk

 

Our long-term investments consist of approximately $18.2 million in par value auction rate securities with investment grades of AAA or AA, as of December 31, 2007. Despite the long-term contractual maturities of the auction rate securities, all of these securities are available for sale. In February and March 2008 uncertainties in the credit markets caused substantially all auctions of the Company’s securities to be unsuccessful. As a consequence we recorded a temporary impairment of $415,000 as of March 31, 2008. If auctions continue to be unsuccessful or if credit ratings deteriorate, we may be required to record a permanent impairment charge on these investments. Based on the Company’s expected operating cash flows, and other sources and uses of cash, the Company does not anticipate that the lack of liquidity on these investments will affect its ability to execute its current business plan. The Company will continue to monitor the state of the credit markets and its potential impact, if any, on the recoverability of our portfolio of auction rate securities.

 

Item 4. Controls and Procedures

 

(a)                               Evaluation of Disclosure Controls and Procedures

 

Our management, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness 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 of the end of the period covered by this report. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective in ensuring that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934 is (i) recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the Securities and Exchange Commission and (ii) accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

 

(b)                                 Changes to Internal Control over Financial Reporting

 

During the most recent completed fiscal quarter covered by this report, there has been no change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934) that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

29



 

Part II. Other Information

 

Item 1. Legal Proceedings

 

From time to time, we are involved in legal proceedings in the ordinary course of business. We believe that the resolution of these matters will not have a material effect on our consolidated financial position, results of operations or liquidity.

 

Item 1A. Risk Factors

 

A restated description of the risk factors associated with our business is set forth below. This description includes any and all changes (whether or not material) to, and supersedes, the description of the risk factors associated with our business previously disclosed in Part 1, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2007.

 

Before deciding to purchase, hold or sell our common stock, you should carefully consider the risks described below, in addition to the other cautionary statements and risks described elsewhere and the other information contained in this Report and in our other filings with the SEC, including our reports on Forms 10-Q and 8-K. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business. If any of these known or unknown risks or uncertainties actually occurs with material adverse effects on RightNow, our business, financial condition and results of operations could be seriously harmed. In that event, the market price for our common stock could decline and you may lose all or part of your investment.

 

We may not be able to achieve, sustain or increase profitability in the future.

 

We incurred a net loss of $3.4 million in the first quarter of 2008, and as of March 31, 2008, we had an accumulated deficit of $60.3 million. We expect to continue to incur significant professional services, sales and marketing, research and development and general and administrative expenses as we expand our operations and, as a result, we will need to generate significant revenue to achieve profitability. In 2007 we changed our business model to substantially eliminate sales of perpetual licenses, which materially and adversely affected our operating margin. Although we improved first quarter operating margins in 2008 compared to each of the quarters in 2007, we may not be able to continue to improve our operating results at the rate that has occurred in the past. Even if we achieve profitability, we may not be able to increase profitability on a quarterly or annual basis in the future, which may cause the price of our stock to decline.

 

If our efforts to enhance existing solutions, introduce new solutions or expand the applications for our products and solutions to broader CRM markets do not succeed, our ability to grow our business will be adversely affected.

 

 Approximately 80% to 90% of our revenue is derived from RightNow Service, a suite of solutions used to optimize customer service operations. If we are unable to successfully develop and sell new and enhanced versions of RightNow Service, or introduce new products and solutions for the customer service market, our financial performance will suffer. Although to date the majority of business has been focused on providing solutions for customer service operations, we have introduced sales, marketing, feedback and voice-enabled applications to expand our solution offerings. Our efforts to expand beyond the customer service market may not be successful because certain of our competitors have far greater experience and brand recognition

 

30



 

in the broader segments of the CRM market. In addition, our efforts to expand our on demand software solutions beyond the customer service market may divert management resources from our existing operations and require us to commit significant financial resources to a market where we are less proven, which may harm our business, financial condition and results of operations.

 

We face intense competition, and our failure to compete successfully could make it difficult for us to add and retain clients and could reduce or impede the growth of our business.

 

The market for CRM solutions is highly competitive and fragmented, and is subject to rapidly changing technology, shifting client requirements, frequent introductions of new products and services, and increased marketing activities of other industry participants. Increased competition could result in commodization, pricing pressure, reduced sales, lower margins or the failure of our solutions to achieve or maintain broad market acceptance. If we are unable to compete effectively, it will be difficult for us to add and retain clients, and our business, financial condition and results of operations will be seriously harmed.

 

We face competition from:

 

 

 

· Companies currently providing customer service solutions, some of whom offer hosted services, including BMC Software Corporation, Inc., eGain Communications Corporation, FrontRange Solutions, Inc., Kana Software, Inc., Microsoft Corporation, Netsuite, Oracle Corporation, SAP AG, salesforce.com, and Talisma;

 

 

·

 CRM systems that are developed and maintained internally by businesses;

 

 

·

CRM products or services that are developed, or bundled with other products or services, and installed on a client’s premises by software vendors;

 

 

·

CRM products or services that are developed, or bundled with other products or services, and installed on a client’s premises by software vendors;

 

 

·

CRM products or services that are developed, or bundled with other products or services, and installed on a client’s premises by software vendors;

 

 

·

voice system integrators and voice-enabled IVR technology providers, such as Apptera, Intervoice, Microsoft, TuVox, Voxify, and Unveil Technologies.

 

Many of our current and potential competitors have longer operating histories and larger presence in the general CRM market, greater name recognition, access to larger customer bases and substantially greater financial, technical, sales and marketing, management, service, support and other resources than we have. As a result, such competitors may be able to respond more quickly than we can to new or changing opportunities, technologies, standards or client requirements or devote greater resources to the promotion and sale of their products and services than we can. To the extent our competitors have an existing relationship with a potential client, that client may be unwilling to switch vendors due to the time and financial commitments already made with our competitors.

 

31



 

In addition, many of our current and potential competitors have established or may establish business, financial or strategic relationships among themselves or with existing or potential clients, alliance partners or other third parties, or may combine and consolidate to become more formidable competitors with better resources. For example, in January 2006, Oracle Corporation completed its acquisition of Siebel Systems, Inc. We also expect that new competitors, such as enterprise software vendors and online service providers that have traditionally focused on enterprise resource planning or back office applications, will continue to enter the on demand CRM market with competing products as the on demand CRM market develops and matures.

 

The market for our on demand application services is at an early stage of development, and if it does not develop or develops more slowly than we expect, our business will be harmed.

 

The market for on demand application services is at an early stage of development, and it is uncertain whether these application services will achieve and sustain high levels of demand and market acceptance. Our success will depend to a substantial extent on the willingness of companies to increase their use of on demand application services in general and for on demand customer relationship management applications in particular. The willingness of companies to increase their use of any on demand application services is in part dependent on the actual and perceived reliability of hosted solutions. In addition, many companies have invested substantial personnel and financial resources to integrate traditional enterprise software into their businesses, and therefore may be reluctant or unwilling to migrate to on demand application services. While we have supported traditional on site deployment of our software applications, widespread market acceptance of our on demand software solutions is critical to the success of our business. Other factors that may affect the market acceptance of our solutions include:

 

 

·

on demand security capabilities and reliability;

 

 

·

concerns with entrusting a third party to store and manage critical customer data;

 

 

·

our ability to meet the needs of broader segments of the CRM market or other on demand markets;

 

 

·

the level of customization we offer;

 

 

·

our ability to continue to achieve and maintain high levels of client satisfaction;

 

 

·

concerns with purchasing critical CRM solutions from a company with a history of operating losses;

 

 

·

customer acceptance of our subscription sales arrangements beginning in 2007; and

 

 

·

the price, performance and availability of competing products and services.

 

If businesses do not perceive the benefits of on demand solutions in general, or our on demand solutions in particular, then the market for these solutions may not develop further, or it may develop more slowly than we expect, either of which would adversely affect our business, financial condition and results of operations.

 

32



 

Our quarterly results of operations may fluctuate in the future.

 

Our quarterly revenue and results of operations may fluctuate as a result of a variety of factors, many of which are outside of our control. If our quarterly revenue or results of operations fall below the expectations of investors or securities analysts, the price of our common stock could decline substantially. Fluctuations in our results of operations may be due to a number of factors, including, but not limited to, those listed below and identified throughout this “Risk Factors” section:

 

· our ability to retain and increase sales to existing clients, attract new clients and satisfy our clients’ requirements;

 

· the mix of revenue between license arrangements, professional services and subscription arrangements as sales commissions are generally expensed when invoiced for license arrangements and professional services, and expensed ratably over the term of an agreement for subscription services;

 

· changes in the mix of revenue between professional services and software, hosting and support, because the gross margin on professional services is typically lower than the gross margin on software, hosting and support;

 

· changes in the mix of voice self service applications sold and/or usage volume, because the gross margin on voice self service applications is typically lower than the gross margin on our sales, marketing, feedback and service applications;

 

· the timing and success of new product introductions or upgrades by us or our competitors;

 

· the timing of professional service sales and our ability to appropriately staff and train professional service resources without negatively impacting professional service margins changes in our pricing policies or those of our competitors;

 

· the amount and timing of expenditures related to expanding our operations;

 

· changes in our assumptions of stock price volatility, employee exercise behaviors, and option of forfeiture rates, or changes in the number of stock options granted and vesting requirements in any particular period, which effects the amount of stock-based compensation expense;

 

· changes in the payment terms for our products and services, including changes in the mix of payment options chosen by our customers;

 

· the purchasing and budgeting cycles of our clients changes in the mix of subscription and perpetual licenses sold in a particular quarter, because perpetual license revenue is recorded into revenue upon delivery whereas subscriptions are recorded into revenue ratably over the contractual period; and

 

· general economic, industry and market conditions.

 

33



 

Because the sales cycle for the evaluation and implementation of our solutions typically ranges from 60 to 180 days, we may also experience a delay between increasing operating expenses and the generation of corresponding revenue, if any. Moreover, because most of the revenue from new sales agreements is recognized over time, downturns or upturns in sales may not be immediately reflected in our operating results. Additionally, our professional service margins may be negatively impacted by training requirements for new professional service resources and/or customer scheduling issues. Most of our expenses, such as salaries and third-party hosting co-location costs, are relatively fixed in the short-term, and our expense levels are based in part on our expectations regarding future revenue levels. As a result, if revenue for a particular quarter is below our expectations, we may not be able to proportionally reduce operating expenses for that quarter, causing a disproportionate effect on our expected results of operations for that quarter.

 

Due to the foregoing factors, and the other risks discussed in this report, you should not rely on quarter-to-quarter comparisons of our results of operations as an indication of our future performance.

 

Failure to effectively develop and expand our sales and marketing capabilities could harm our ability to increase our client base and achieve broader market acceptance of our solutions.

 

Increasing our client base and achieving broader market acceptance of our solutions will depend to a significant extent on our ability to expand our sales and marketing operations. We plan to continue to expand our sales and marketing resources and engage additional third-party channel partners, both domestically and internationally. This expansion will require us to invest significant financial and other resources. Our business will be seriously harmed if our efforts do not generate a corresponding significant increase in revenue. We may not achieve anticipated revenue growth from expanding our sales and marketing resources if we are unable to hire and develop talented sales and marketing personnel, if our new sales personnel are unable to achieve desired productivity levels in a reasonable period of time, or if we are unable to retain our existing sales and marketing personnel. We also may not achieve anticipated revenue growth from our third-party channel partners if we are unable to attract and retain additional motivated channel partners, if any existing or future channel partners fail to successfully market, resell, implement or support our solutions for their customers, or if they represent multiple providers and devote greater resources to market, resell, implement and support competing products and services.

 

The majority of our solutions are sold pursuant to time-based agreements, and if our existing clients elect not to renew or to renew on terms less favorable to us, our business, financial condition and results of operations will be adversely affected.

 

Our solutions are generally sold pursuant to time-based agreements that are typically subject to renewal every two years or less and our clients have no obligation to renew. Because our clients may elect not to renew, we may not be able to consistently and accurately predict future renewal rates. Our clients’ renewal rates may decline or fluctuate as a result of a number of factors, including their level of satisfaction with our solutions, their ability to continue their operations or invest in customer service, their acceptance of a change from term license

 

34



 

agreements to subscription service agreements, or the availability and pricing of competing products. If large numbers of existing clients do not renew, or renew on terms less favorable to us, and if we cannot replace or supplement those non-renewals with new agreements generating the same or greater level of revenue, our business, financial condition and results of operations will be adversely affected.

 

We have experienced rapid growth in recent periods. If we fail to manage our growth effectively, we may be unable to execute our business plan, maintain high levels of service or adequately address competitive challenges.

 

To achieve our business objectives, we will need to continue to expand our business at a rapid pace. This expansion has placed, and is expected to continue to place, a significant strain on our managerial, administrative, operational, financial and other resources. We anticipate that this expansion will require substantial management effort and significant additional investment in our infrastructure. If we are unable to successfully manage our growth, our business, financial condition and results of operations will be adversely affected.

 

Part of the challenge that we expect to face in the course of our expansion is to maintain the high level of customer service to which our clients have become accustomed. To date, we have focused on providing personalized account management and customer service on a frequent basis to ensure our clients are effectively leveraging the capabilities of our solution. We believe that much of our success to date has been the result of high client satisfaction, attributable in part to this focus on client service. To the extent our client base grows, we will need to expand our account management, client service and other personnel, and third-party channel partners, in order to enable us to continue to maintain high levels of client service and satisfaction. If we are not able to continue to provide high levels of client service, our reputation, as well as our business, financial condition and results of operations, could be harmed.

 

If there are interruptions or delays in our hosting services through third-party error, our own error or the occurrence of unforeseeable events, delivery of our solutions could become impaired, which could harm our relationships with clients and subject us to liability.

 

As of March 31, 2008, approximately 90% of our clients were using our hosting services for deployment of our software applications. We generally provide our hosting services for our non-voice applications through computer hardware that we own and that is currently located in third-party web hosting co-location facilities maintained and operated in California, Illinois, Massachusetts, New Jersey and London, England. Our voice applications for several international customers are hosted by third parties who also own and operate the hardware on which our applications reside. We do not maintain long-term supply contracts with any of our hosting providers, and providers do not guarantee that our clients’ access to hosted solutions will be uninterrupted, error-free or secure. Our operations depend on our providers’ ability to protect their and our systems in their facilities against damage or interruption from natural disasters, power or telecommunications failures, criminal acts and similar events. Our back-up computer hardware and systems have not been tested under actual disaster conditions and may not have sufficient capacity to recover all data and services in the event of an outage occurring simultaneously at all hosting facilities. In the event that our hosting facility arrangements were terminated, or there was a lapse of service or accidental or willful damage to such facilities, we could experience lengthy interruptions in our hosting service as well as delays and/or additional expense in arranging new facilities and services. Any or all of these events could cause our clients to lose access to their important data. In addition, the failure by our third-party hosting facilities to meet our capacity

 

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requirements could result in interruptions in our service or impede our ability to scale our operations.

 

Design and mechanical errors, spikes in usage volume and failure to follow system protocols and procedures could cause our systems to fail, resulting in interruptions in our clients’ service to their customers. Any interruptions or delays in our hosting services, whether as a result of third-party error, our own error, natural disasters or security breaches, whether accidental or willful, could harm our relationships with clients and our reputation. This in turn could reduce our revenue, subject us to liability, cause us to issue credits or pay penalties or cause clients to fail to renew their licenses, any of which could adversely affect our business, financial condition and results of operations. In the event of damage or interruption, our insurance policies may not adequately compensate us for any losses that we may incur.

 

If the security of our clients’ confidential information contained in our systems or stored by use of our software is breached or otherwise subjected to unauthorized access, our hosting service or our software may be perceived as not being secure and clients may curtail or stop using our hosting service and our solutions.

 

Our hosting systems and our software store and transmit proprietary information and critical data belonging to our clients and their customers. Any accidental or willful security breaches or other unauthorized access could expose us to a risk of information loss, litigation and other possible liabilities. If security measures are breached because of third-party action, employee error, malfeasance or otherwise, or if design flaws in our software are exposed and exploited, and, as a result, a third party obtains unauthorized access to any of our clients’ data, our relationships with clients and our reputation will be damaged, our business may suffer and we could incur significant liability. Because techniques used to obtain unauthorized access or to sabotage systems change frequently and generally are not recognized until launched against a target, we and our third-party hosting co-location facilities may be unable to anticipate these techniques or to implement adequate preventative measures.

 

We have significant international sales and are subject to risks associated with operating in international markets.

 

International sales comprised 28% and 33% of our revenue for the quarters ended March 31, 2007 and 2008, respectively. We intend to continue to pursue and expand our international business activities. Adverse political and economic conditions could make it difficult for us to increase our international sales or to operate abroad. International operations are subject to many inherent risks, including:

 

· political, social and economic instability, including conflicts in the Middle East and elsewhere abroad, terrorist attacks and security concerns in general;

 

· adverse changes in tariffs and other protectionist laws and business practices that favor local competitors;

 

· fluctuations in currency exchange rates;

 

· longer collection periods and difficulties in collecting receivables from foreign entities;

 

· exposure to different legal standards and burdens of complying with a variety of foreign laws, including employment, tax, privacy and data protection laws and regulations;

 

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· reduced protection for our intellectual property in some countries;

 

· expenses associated with localizing products for foreign countries, including translation into foreign languages; and

 

· import and export license requirements and restrictions of the United States and each other country in which we operate.

 

We believe that international sales will continue to represent a significant portion of our revenue for the foreseeable future, and that continued growth will require further expansion of our international operations. A substantial percentage of our international sales are denominated in the local currency. As a result, an increase in the relative value of the dollar could make our products more expensive and potentially less price competitive in international markets. We have not historically entered into transactions designed to hedge against risks of loss due to foreign currency fluctuations; but if we were to enter into any transactions we cannot guarantee that any such transactions would be effective. Any of these factors may adversely affect our future international sales and, consequently, affect our business, financial condition and results of operations.

 

If we fail to respond effectively to rapidly changing technology and evolving industry standards, particularly in the on demand CRM industry, our solutions may become less competitive or obsolete.

 

The CRM industry is characterized by rapid technological advances, changes in client requirements, frequent new product and service introductions and enhancements, changes in protocols and evolving industry standards. Our hosted business model and the on demand CRM market are relatively new and may evolve even more rapidly than the rest of the CRM market. Competing products and services based on new technologies or new industry standards may perform better or cost less than our solutions and could render our solutions less competitive or obsolete. In addition, because our solutions are designed to operate on a variety of network hardware and software platforms using a standard Internet web browser, we will need to continuously modify and enhance our solutions to keep pace with changes in Internet-related hardware, software, communication, browser and database technologies and to integrate with our clients’ systems as they change and evolve. Furthermore, uncertainties about the timing and nature of new network platforms or technologies, or modifications to existing platforms or technologies, could increase our research and development expenses.

 

Our software incorporates use of Microsoft’s .NET Framework, and its Smart Client methodology. The .NET Framework is core functionality that Microsoft incorporates into operating systems, while the Smart Client methodology enables development and deployment of software applications using the .NET Framework. We believe that the .NET Framework and Smart Client enable us to provide users with a richer experience and better functionality than would be possible using a pure Web-based application. However, the .NET Framework has not been universally adopted. If software users do not adopt the .NET Framework or if the .NET Framework is superseded, the potential market for our solutions will be reduced and we may need to develop an alternative architecture.

 

If we are unable to successfully develop and market new and enhanced solutions that respond in a timely manner to changing technology and evolving industry standards, and if we are

 

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unable to satisfy the diverse and evolving technology needs of our clients, our business, financial condition and results of operations will suffer.

 

Our failure to attract and retain qualified or key personnel may prevent us from effectively developing, marketing, selling, integrating and supporting our products.

 

Our success and future growth depends to a significant degree upon the skills, experience, performance and continued service of our senior management, engineering, sales, marketing, service, support and other key personnel. Specifically, we believe that our future success is highly dependent on Greg Gianforte, our founder, Chairman and Chief Executive Officer. In addition, we do not have employment agreements with any of our senior management or key personnel that require them to remain our employees and, therefore, they could terminate their employment with us at any time without penalty. If we lose the services of Mr. Gianforte or any of our other key personnel, our business will be severely disrupted and we may be unable to operate effectively. We do not maintain “key person” life insurance policies on any of our key employees except Mr. Gianforte. This life insurance policy would not be sufficient to compensate us for the loss of his services. Our future success also depends in large part upon our ability to attract, train, integrate, motivate and retain highly skilled employees, particularly sales, marketing and professional services personnel, software engineers, product trainers, and senior personnel. Competition for these personnel is intense, especially for engineers with high levels of expertise in designing and developing software and for senior sales executives.

 

Our failure to attract, manage, support and retain qualified partners may prevent us from effectively deploying product and professional services.

 

Our success and future growth depends in part upon the skills, experience, performance and continued service of our partners. We engage with partners in a number of ways, including to assist us to identify prospective customers, to distribute our solutions, to develop complementary solutions, and to help us to fulfill professional services engagements. We believe that our future success depends in part upon our ability to develop strategic, long term and profitable partnerships. If we do not acquire and retain the right partners, our products might become uncompetitive, we may be unable to take full advantage of the potential demand for our solutions, or our ability to rapidly deliver our solutions may be impaired. The use of partners to fulfill customer requirements may impact our normal margins, and affect the profitability of customer transactions.

 

If our solutions fail to perform properly or if they contain technical defects, our reputation will be harmed, our market share would decline and we could be subject to product liability claims.

 

Our software products may contain undetected errors or defects that may result in product failures, slow response times, or otherwise cause our products to fail to perform in accordance with client expectations. Because our clients use our products for important aspects of their business, any errors or defects in, or other performance problems with, our products could hurt our reputation and may damage our clients’ businesses. If that occurs, we could lose future sales, or our existing clients could elect to not renew or to delay or withhold payment to us, which could result in an increase in our provision for doubtful accounts and an increase in collection cycles for

 

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accounts receivable. Clients also may make warranty or other claims against us, which could result in the expense and risk of litigation. Product performance problems could result in loss of market share, failure to achieve market acceptance and the diversion of development resources. If one or more of our products fails to perform or contains a technical defect, a client may assert a claim against us for substantial damages, whether or not we are responsible for the product failure or defect. We do not currently maintain any warranty reserves.

 

Product liability claims could require us to spend significant time and money in litigation or to pay significant settlements or damages. Although we maintain general liability insurance, including coverage for errors and omissions, this coverage may not be sufficient to cover liabilities resulting from such product liability claims. Also, our insurer may disclaim coverage. Our liability insurance also may not continue to be available to us on reasonable terms, in sufficient amounts, or at all. Any product liability claims successfully brought against us would cause our business to suffer.

 

If we are unable to protect our intellectual property rights, our competitive position could be harmed or we could be required to incur significant expenses to enforce our rights.

 

Our success depends to a significant degree upon the protection of our software and other proprietary technology rights. We rely on trade secret, copyright and trademark laws, patents and confidentiality agreements with employees and third parties, all of which offer only limited protection. The steps we have taken to protect our intellectual property may not prevent misappropriation of our proprietary rights or the reverse engineering of our solutions. We may not be able to obtain any further patents or trademarks, and our pending applications may not result in the issuance of patents or trademarks. Any of our issued patents may not be broad enough to protect our proprietary rights or could be successfully challenged by one or more third parties, which could result in our loss of the right to prevent others from exploiting the inventions claimed in those patents. Furthermore, legal standards relating to the validity, enforceability and scope of protection of intellectual property rights in other countries are uncertain and may afford little or no effective protection of our proprietary technology. Consequently, we may be unable to prevent our proprietary technology from being exploited abroad, which could diminish international sales or require costly efforts to protect our technology. Policing the unauthorized use of our products, trademarks and other proprietary rights is expensive, difficult and, in some cases, impossible. Litigation may be necessary in the future to enforce or defend our intellectual property rights, to protect our trade secrets or to determine the validity and scope of the proprietary rights of others. Such litigation could result in substantial costs and diversion of management resources, either of which could harm our business. Accordingly, despite our efforts, we may not be able to prevent third parties from infringing upon or misappropriating our intellectual property.

 

Our product development efforts may be constrained by the intellectual property of others, and we may become subject to claims of intellectual property infringement, which could be costly and time-consuming.

 

The software and Internet industries are characterized by the existence of a large number of patents, trademarks and copyrights, and by frequent litigation based upon allegations of infringement or other violations of intellectual property rights. As we seek to extend our CRM product and service offerings, we may be constrained by the intellectual property rights of others. We have in the past been named as a defendant in a lawsuit alleging intellectual property infringement, and we may again in the future have to defend against intellectual property lawsuits. We may not prevail in any future intellectual property infringement litigation given the

 

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complex technical issues and inherent uncertainties in litigation. Any claims, regardless of their merit, could be time-consuming and distracting to management, result in costly litigation or settlement, cause product development delays, or require us to enter into royalty or licensing agreements. If any of our products violate third-party proprietary rights, we may be required to re-engineer our products or seek to obtain licenses from third parties, which may not be available on reasonable terms or at all. Because our sales agreements typically require us to indemnify our clients from any claim or finding of intellectual property infringement, any such litigation or successful infringement claims could adversely affect our business, financial condition and results of operations. Any efforts to re-engineer our products, obtain licenses from third parties on favorable terms or license a substitute technology may not be successful and, in any case, may substantially increase our costs and harm our business, financial condition and results of operations. Further, our software products contain open source software components that are licensed to us under various public domain licenses. While we believe we have complied with our obligations under the various applicable licenses for open source software that we use, there is little or no legal precedent governing the interpretation of many of the terms of certain of these licenses and therefore the potential impact of such terms on our business is somewhat unknown. Use of open source standards also may make us more vulnerable to competition because the public availability of open source software could make it easier for new market entrants and existing competitors to introduce similar competing products quickly and cheaply.

 

 Future acquisitions could disrupt our business and harm our financial condition and results of operations.

 

In order to expand our addressable market, we may decide to acquire additional businesses, products and technologies. In May 2005, we acquired the assets of Convergent Voice and in May 2006, we acquired Salesnet, Inc. Acquisitions could require significant capital infusions and could involve many risks, including, but not limited to, the following:

 

·

an acquisition may negatively impact our results of operations because it may require incurring large one-time charges, substantial debt or liabilities; it may require the amortization or write down of amounts related to deferred compensation, goodwill and other intangible assets; or it may cause adverse tax consequences, substantial depreciation or deferred compensation charges;

 

 

·

we may encounter difficulties in assimilating and integrating the business, technologies, products, personnel or operations of companies that we acquire, particularly if key personnel of the acquired company decide not to work for us;

 

 

·

our existing and potential clients and the customers of the acquired company may delay purchases due to uncertainty related to an acquisition;

 

 

·

an acquisition may disrupt our ongoing business, divert resources, increase our expenses and distract our management;

 

 

·

the acquired businesses, products or technologies may not generate sufficient revenue to offset acquisition costs;

 

 

·

we may have to issue equity securities to complete an acquisition, which would dilute our stockholders and could adversely affect the market price of our common stock; and

 

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·

acquisitions may involve the entry into a geographic or business market in which we have little or no prior experience.

 

We cannot assure you that we will be able to identify or consummate any future acquisitions on favorable terms, or at all. If we do pursue any future acquisitions, it is possible that we may not realize the anticipated benefits from the acquisitions or that the financial markets or investors will negatively view the acquisitions. Even if we successfully complete an acquisition, it could adversely affect our business, financial condition and results of operations.

 

Changes to financial accounting standards may affect our results of operations and financial condition.

 

Generally accepted accounting principles and accompanying accounting pronouncements, implementation guidelines and interpretations for many aspects of our business, such as software revenue recognition, accounting for stock-based compensation, and income tax uncertainties, are complex and involve subjective judgments by management.  Changes to generally accepted accounting principles, their interpretation, or changes in our products or business could significantly change our reported earnings and financial condition and could add significant volatility to those measures.  For example, since our inception in 1997, we have used stock options as a fundamental component of our employee compensation programs.  New accounting requirements that began January 1, 2006 make the use of stock-based compensation much more expensive and introduce additional volatility in our results of operations.  See Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies in this report for additional information on recently enacted changes to generally accepted accounting principles.

 

The required adoption of SFAS 123R makes stock options a less attractive form of employee compensation, and our use of alternative forms of employee compensation in response to SFAS 123R could adversely affect our ability to attract and retain personnel.

 

We have historically used stock options as a key component of our employee compensation because we believe it aligns employees’ interests with our stockholders’ interest, encourages employee retention, and provides a competitive component of our overall compensation program.  Due to the required adoption of SFAS 123R, and the recording of stock option expense on our operating statements, we may determine that it is in our best interest to reduce the number or size of our stock-based awards, or change the type of awards granted.  In doing so, we may not be able to attract, retain and motivate our employees.

 

With the recent volatility in the capital markets, there is a risk that we could suffer a loss of principal in our cash and cash equivalents and short-term investments and suffer a reduction in our interest or return on investments. Additionally funds associated with auction rate securities may be inaccessible in excess of 12 months, which may result in an other-than-temporary decline in the value of these investments.

 

We invest our cash and cash equivalents and short-term investments pursuant to our investment policy in cash, auction-rate securities, money market funds, commercial paper, corporate bonds and government agency securities, which are of investment grade quality. Certain of these investments are subject to general credit, liquidity, market and interest rate risks, which may be exacerbated by U.S. sub-prime mortgage defaults that have affected various sectors of the financial markets and caused credit and liquidity issues. To date, we believe that any declines in the market value of our investments have been temporary. There could be future declines in the value of these investments, however, which we may determine to be other-than-temporary. These market risks associated with our investment portfolio may have a material adverse effect on our results of operations, liquidity and financial condition.

 

At December 31, 2007 and March 31, 2008, we had approximately $18.3 million and $18.2 million, respectively, in par value auction rate securities with investment grades of AAA or AA.  In February and March 2008, uncertainties in the credit market caused substantially all auctions of the auction rate securities we hold to fail.  An auction failure means that the parties wishing to sell securities could not. Given the recent failures in the auctions, we reclassified these investments from short-term to long-term due to illiquidity.  Additionally, we recorded a temporary charge of $415,000 in other comprehensive income due to our inability to liquidate these securities at par.  If the issuers of these securities are unable to successfully close future auctions and their credit ratings deteriorate, we may in the future be required to record an other-than temporary impairment charge on these investments. If we record an other-than-temporary impairment charge, we will record a loss in our statement of operations, which could have a material impact on our operating results in the period it is recognized.  Determining whether there has been an other-than-temporary impairment of our short-term investments requires significant judgment. With the recent volatility in the capital markets, the funds associated with these investments may not be accessible for in excess of twelve months and there is a risk that we could suffer a loss of principal and suffer a reduction in our interest or return on these and other investments, which could result in a permanent impairment charge and harm our operating results and financial condition.

 

We may not be able to secure additional financing on favorable terms, or at all, to meet our future capital needs.

 

We may require additional capital to respond to business challenges, including the need to develop new solutions or enhance our existing solutions, enhance our operating infrastructure, fund expansion, respond to competitive pressures and acquire complementary businesses, products and technologies. Absent sufficient cash flow from operations, we may need to engage in equity or debt financings to secure additional funds to meet our operating and capital needs. In addition, even though we may not need additional funds, we may still elect to sell additional equity or debt securities or obtain credit facilities for other reasons. We may not be able to secure additional debt or equity financing on favorable terms, or at all, at the time when we need such

 

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funding. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution in their percentage ownership of our company, and any new equity securities we issue could have rights, preferences and privileges senior to those of holders of our common stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital, to pay dividends and to pursue business opportunities, including potential acquisitions. In addition, if we decide to raise funds through debt or convertible debt financings, we may be unable to meet our interest or principal payments.

 

The success of our products and our hosted business depends on the continued growth and acceptance of the Internet as a business and communications tool, and the related expansion of the Internet infrastructure.

 

The future success of our products and our hosted business depends upon the continued and widespread adoption of the Internet as a primary medium for commerce, communication and business applications. Our business growth would be impeded if the performance or perception of the Internet, or companies providing hosted solutions, was harmed by security problems such as “viruses,” “worms” and other malicious programs, reliability issues arising from outages and damage to Internet infrastructure, delays in development or adoption of new standards and protocols to handle increased demands of Internet activity, increased costs, decreased accessibility and quality of service, or increased government regulation and taxation of Internet activity.

 

Federal, state or foreign government bodies or agencies have in the past adopted, and may in the future adopt, laws or regulations affecting data privacy, the solicitation, collection, processing or use of personal or consumer information, the use of the Internet as a commercial medium and the use of email for marketing or other consumer communications. In addition, government agencies or private organizations may begin to impose taxes, fees or other charges for accessing the Internet or for sending commercial email. These laws or charges could limit the growth of Internet-related commerce or communications generally, result in a decline in the use of the Internet and the viability of Internet-based services such as ours and reduce the demand for our products, particularly our RightNow Marketing solution.

 

The Internet has experienced, and is expected to continue to experience, significant user and traffic growth, which has, at times, caused user frustration with slow access and download times. If Internet activity grows faster than Internet infrastructure or if the Internet infrastructure is otherwise unable to support the demands placed on it, or if hosting capacity becomes scarce, our business growth may be adversely affected.

 

Privacy concerns and laws or other domestic or foreign regulations may adversely affect our business or reduce sales of our solutions.

 

Businesses using our solutions collect personal information regarding their customers when those customers contact them with customer service inquiries. A valuable component of our solutions is their ability to allow our clients to use and analyze their customers’ information to increase sales, marketing and up-sell or cross-sell opportunities. Federal, state and foreign government bodies and agencies, however, have adopted and are considering adopting laws and regulations regarding the collection, use and disclosure of personal information obtained from

 

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consumers. The costs of compliance with, and other burdens imposed by, such laws and regulations that are applicable to the businesses of our clients may limit the use and adoption of this component of our solutions and reduce overall demand for our solutions. Furthermore, even where a client desires to make full use of these features in our solutions, privacy concerns may cause our clients’ customers to resist providing the personal data necessary to allow our clients to use our solutions most effectively. Even the perception of privacy concerns, whether or not valid, may inhibit market acceptance of our products.

 

European Union members have imposed restrictions on the collection and use of personal data that are far more stringent, and impose more significant burdens on subject businesses, than current privacy standards in the United States. All of these domestic and international legislative and regulatory initiatives may adversely affect our clients’ ability to collect and/or use demographic and personal information from their customers, which could reduce demand for our solutions.

 

In addition to government activity, privacy advocacy groups and the technology and direct marketing industries are considering various new, additional or different self-regulatory standards that may place additional burdens on us. If the gathering of profiling information were to be curtailed in this manner, customer service CRM solutions would be less effective, which would reduce demand for our solutions and harm our business.

 

Non-solicitation concerns, laws or regulations may adversely affect our clients’ ability to perform outbound marketing and other email communications, which could reduce sales of our solutions.

 

In January 2004, the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act, became effective. The CAN-SPAM Act regulates the transmission and content of commercial emails and, among other things, obligates the sender of such emails to provide recipients with the ability to opt-out of receiving future emails from the sender, and establishes penalties for the transmission of email messages which are intended to deceive the recipient as to source or content. Many state legislatures also have adopted laws that impact the delivery of commercial email, and laws that regulate commercial email practices have been enacted in many of the international jurisdictions in which we do business, including Europe, Australia, and Canada. In addition, Internet service providers and licensors of software products have introduced a variety of systems and products to filter out certain types of commercial email, without any common protocol to determine whether the recipient desired to receive the email being blocked. As a result, it is difficult for us to determine in advance whether or not emails generated by our clients using our solutions will be permitted by spam filters to reach the intended recipients.

 

Our RightNow Marketing solution specifically serves the market for mass distribution marketing and other email communications. The increasing regulation of email delivery, both domestically and internationally, and the spam filtering practices of Internet service providers and email users generally, will place significant additional burdens on our clients who have outbound communication programs, and may cause those clients to substantially change their outbound communications programs or abandon them altogether.  These factors may lead to a reduction in sales of our RightNow Marketing solution, may make it necessary to redesign our RightNow Marketing solution to make it easier for our clients to conform to the requirements of such laws and standards, which would increase our expenses, or may make it necessary for us to redefine the market for and use of our RightNow Marketing solution, which could reduce our revenue.

 

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General economic conditions could adversely affect our clients’ ability or willingness to purchase our products, which could materially and adversely affect our results of operations.

 

Our clients consist of large and small companies in nearly all industry sectors and geographies. Potential new clients or existing clients could defer purchases of our products because of unfavorable macroeconomic conditions, such as rising interest rates, fluctuations in currency exchange rates, industry or national economic downturns, industry purchasing patterns, and other factors.   Our ability to grow revenues may be adversely affected by unfavorable economic conditions.

 

The significant control over stockholder voting matters and our office leases that may be exercised by our founder and Chief Executive Officer will limit your ability to influence corporate actions and may require us to find alternative office space to lease or buy in the future.

 

At March 31, 2008, Greg Gianforte, our founder and Chief Executive Officer, and his spouse, Susan Gianforte, have voting power over approximately 23.3% of our outstanding common stock and, together with other officers and directors, have voting power over approximately 27.6% of our outstanding common stock. In addition, none of the shares of common stock over which Mr. Gianforte and Mrs. Gianforte have voting power are subject to vesting restrictions. As a result, Mr. Gianforte and Mrs. Gianforte, acting together with some of our other officers and directors, may be able to control matters requiring stockholder approval, including the election of directors, management changes and approval of significant corporate transactions. This concentration of voting power may have the effect of delaying, preventing or deterring a change in control of RightNow, could deprive our stockholders of an opportunity to receive a premium for their common stock as part of a sale of RightNow and might reduce the market price of our common stock.

 

In addition, Mr. Gianforte beneficially owns, directly or indirectly, a 50% membership interest in Genesis Partners, LLC, our landlord from whom we lease our principal offices in Bozeman, Montana. Consequently, Mr. Gianforte has significant control over any decisions by Genesis Partners regarding renewal, modification or termination of our Bozeman, Montana leases. In the event that our current leases with Genesis Partners were terminated or otherwise could not be renewed, or came up for renewal on commercially unreasonable terms, we would be required to find alternative office space to lease or buy.

 

Anti-takeover provisions in our charter documents and Delaware law could discourage, delay or prevent a change in control of our company and may affect the trading price of our common stock.

 

Provisions of our certificate of incorporation and bylaws and Delaware law may discourage, delay or prevent a merger or acquisition that a stockholder may consider favorable and may limit the market price of our common stock. These provisions include the following:

 

·      establishing a classified board in which only a portion of the total board members will be elected at each annual meeting;

 

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·      authorizing the board to issue preferred stock;

 

·      providing the board with sole authority to set the number of authorized directors and to fill vacancies on the board;

 

·      limiting the persons who may call special meetings of stockholders;

 

·      prohibiting certain transactions under certain circumstances with interested stockholders;

 

·      requiring supermajority approval to amend certain provisions of the certificate of incorporation; and

 

·      prohibiting stockholder action by written consent.

 

It is possible that the provisions contained in our certificate of incorporation and bylaws, the voting rights held by insiders and the ability of our board of directors to issue preferred stock without stockholder action may have the effect of delaying, deferring or preventing a change in control of our company without further action by the stockholders, may discourage bids for our common stock at a premium over the market price of our common stock and may adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock.

 

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

 

(a)                                 Sales of Unregistered Securities

 

None.

 

(b)                                 Use of Proceeds from Sales of Registered Securities

 

On August 5, 2004, the Securities and Exchange Commission declared effective our Registration Statement on From S-1 (Reg. File No. 333-115331) under the Securities Act of 1933, as amended, in connection with the initial public offering of our common stock, par value $.0001 per share.  We sold 6.4 million shares, including shares sold upon exercise of the underwriters’ over-allotment option, for an aggregate offering price of $44.9 million, and 321,945 shares, including shares sold upon exercise of the underwriters’ over-allotment option, were sold by a selling stockholder for an aggregate offering price of $2.3 million.  After deducting $3.3 million in underwriting discounts and commissions and $1.8 million in other offering costs, we received net proceeds from the offering of approximately $40 million.  None of the expenses and none of our net proceeds from the offering were paid directly or indirectly to any director, officer, general partner of RightNow or their associates, persons owning 10% or more of any class of equity securities of RightNow, or an affiliate of RightNow.

 

In May 2005, we spent $1 million of the offering proceeds for the acquisition of the assets of Convergent Voice.  In May 2006, we spent $8.7 million of the offering proceeds to acquire Salesnet, Inc. We currently intend to use the remaining proceeds for general corporate purposes as described in the prospectus for the offering.  Pending these uses, the net proceeds from the offering are invested in short and long-term, interest-bearing, investment-grade securities.

 

(c)                                 Not applicable.

 

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Item 3.         Defaults Upon Senior Securities.

 

None.

 

Item 4.         Submission of Matters to a Vote of Security Holders.

 

None.

 

Item 5.         Other Information.

 

None.

 

46



 

Item 6.  Exhibits

 

Exhibits

 

The exhibits listed below are part of this Form 10-Q, unless otherwise indicated.

 

Exhibit 3.1

 

Amended and Restated Certificate of Incorporation of the Registrant. (1)

Exhibit 3.2

 

Amended and Restated Bylaws of the Registrant. (2)

Exhibit 10.31**

 

Form of Executive Officer Offer Letter and Schedule of Material Differences thereto for Jeff Davison and Susan Carstensen (3)

Exhibit 31.1

 

Certification of Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a) or 15(d)-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

Exhibit 31.2

 

Certification of Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a) or 15(d)-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

Exhibit 32.1

 

Certifications of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).

 


(1)

 

Incorporated by reference to Exhibit 4.2 to the Company’s registration statement on Form S-8 (File No. 333-118515) filed with

 

 

the Securities and Exchange Commission on August 24, 2004.

(2)

 

Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K (File No. 000-31321) filed with the Securities and Exchange Commission on January 25, 2006.

(3)

 

Incorporated by reference to Exhibit 10.31 of the Company’s Current Report on Form 8-K (File No. 000-31321) filed with the Securities and Exchange Commission on January 30, 2008.

**

 

Denotes management contract or compensatory plan or arrangement.

 

47



 

SIGNATURE

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated:  May 9, 2008

 

RightNow Technologies, Inc.

(Registrant)

 

By:

 

/s/ Jeffrey C. Davison

 

 

 

Jeffrey C. Davison

 

 

 

Chief Financial Officer, Vice President and,

 

 

 

Treasurer

 

 

 

(Principal Financial and Accounting Officer)

 

 

48