UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
20-F
OR
For
the fiscal year ended December
31 , 2022
OR
OR
Date of event requiring
this shell company report ___________
For the transition
period from _____ to _____
Commission
File No. 000-51694
(Exact Name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
(Translation of Registrant’s name into English)
(Jurisdiction of incorporation or organization)
(Address of principal executive offices)
Tel: +
(Name, Telephone, E-mail and/or Facsimile Number and Address of Company Contact Person)
Securities registered
or to be registered pursuant to Section 12(b) of the Act.
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Title
of Each Class |
Trading
Symbol(s) |
Name
of Each Exchange on which Registered |
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Securities registered
or to be registered pursuant to Section 12(g) of the Act.
None
(Title of Class)
(Title of Class)
Securities
for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)
(Title of Class)
Indicate
the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered
by the Annual Report.
As
of December 31, 2022, the Registrant had outstanding 46,172,393
ordinary shares, par value NIS 0.03 per share (excluding treasury shares).
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
If
this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934.
Yes ☐ No ☒
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.
Indicate
by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data
File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit and post such files).
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth
company. See definition of “large accelerated filer, “accelerated filer,” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
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Accelerated
filer ☐ |
Non-accelerated
filer ☐ |
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Emerging
growth company ☐ |
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 13(a) of the Exchange Act. ☐
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of
its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public
accounting firm that prepared or issued its audit report. ☒
If
securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant
included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate
by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation
received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate
by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
|
|
International
Financial Reporting Standards as issued by
the
International Accounting Standards Board ☐ |
Other
☐ |
If
“Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant
has elected to follow.
Item
17 ☐ Item 18 ☐
If
this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act):
Yes
☐ No ☒
INTRODUCTION
Terms
As used herein, and unless the context suggests otherwise, the
terms “Perion,” “Company,” “we,” “us” or “ours” refer to Perion Network Ltd.
and subsidiaries. References to “dollar” and “$” are to U.S. dollars, the lawful currency of the United States,
and references to “NIS” are to New Israeli Shekels, the lawful currency of the State of Israel. This annual report on Form
20-F contains translations of certain NIS amounts into U.S. dollars at specified rates solely for your convenience. These translations
should not be construed as representations by us that the NIS amounts actually represent such U.S. dollar amounts or could, at this time,
be converted into U.S. dollars at the rate indicated. Unless otherwise indicated, we have translated NIS amounts into U.S. dollars at
an exchange rate of NIS 3.519 to $1.00, the representative exchange rate reported by the Bank of Israel on December 31, 2022.
This Annual Report contains estimates, projections and other information
concerning our industry and our business, as well as data regarding market research, estimates and forecasts prepared by our management.
Information that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties,
and actual events or circumstances may differ materially from events and circumstances that are assumed in this information. The industry
in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those discussed under the
headings “Cautionary Statement Regarding Forward-Looking Statements” and Item 3.D. “Risk Factors” in this Annual
Report.
Changes in Share Capital
On August 26, 2018, following the approval of a special general
meeting of our shareholder held on August 2, 2018, the Company executed a 3-to-1 reverse share split of the Company’s ordinary shares,
such that each three ordinary shares, par value NIS 0.01 per share, have been consolidated into one ordinary share, par value NIS 0.03.
Unless otherwise indicated, all of the share numbers and the option numbers in this Form 20-F have been adjusted, on a retroactive basis,
to reflect this 3-to-1 reverse share split.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 20-F contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements relate to future events or our
future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our, or our industries’
actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity,
performance or achievements expressed, implied or inferred by these forward-looking statements. In some cases, you can identify forward-looking
statements by terminology such as “may,” “will,” “should,” “could,” “would,”
“expects,” “plans,” “intends,” “anticipates,” “believes,” “estimates,”
“predicts,” “projects,” “potential” or “continue” or the negative of such terms and other
comparable terminology.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we do not know whether we can achieve positive future results, levels of activity, performance, or goals. Actual
events or results may differ materially from our current expectations. All forward-looking statements included in this report are based
on information available to us on the date of this report. Except as required by applicable law, we undertake no obligation to update
or revise any of the forward-looking statements after the date of this annual report on Form 20-F to conform those statements to reflect
the occurrence of unanticipated events, new information or otherwise.
3
You should read this annual report on Form 20-F and the documents
that we reference in this report completely and with the understanding that our actual future results, levels of activity, performance
and achievements may be materially different from what we currently expect.
Factors that could cause actual results to differ from our expectations
or projections include certain risks, including but not limited to the risks and uncertainties relating to our; business, intellectual
property, industry and operations in Israel, as described in this annual report on Form 20-F under Item 3.D. – “Key Information
– Risk Factors.” Assumptions relating to the foregoing, involve judgment with respect to, among other things, future economic,
competitive and market conditions, and future business decisions, all of which are difficult or impossible to predict accurately and many
of which are beyond our control. In light of the significant uncertainties, inherent in the forward-looking information included herein,
the inclusion of such information should not be regarded as a representation by us or any other person that our objectives or plans will
be achieved. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time and it is
not possible for our management to predict all risks, nor can we assess the impact of all risks on our business or the extent to which
any risk, or combination of risks, may cause actual results to differ from those contained in any forward-looking statements.
We obtained statistical data, market data and other industry data
and forecasts used in preparing this annual report from market research, publicly available information and industry publications. Industry
publications generally state that they obtain their information from sources that they believe to be reliable, but they do not guarantee
the accuracy and completeness of the information. Similarly, while we believe that the statistical data, industry data and forecasts and
market research are reliable, we have not independently verified the data, and we do not make any representation as to the accuracy of
the information.
Our estimates and forward-looking statements may be influenced
by factors including:
| • |
Our search advertising solution depends heavily upon revenue generated from our agreement with Microsoft Bing, and any adverse change
in that agreement could adversely affect our business, financial condition and results of operations. |
| • |
The generation of search advertising revenue through publishers is subject to competition. If we cannot compete effectively in this
market, our revenue is likely to decline. |
| • |
Should the methods used for the distribution of our search solution, be blocked, constrained, limited, materially changed, based
on a change of policies, technology or otherwise (as has happened in the past), or made redundant by any of our search engine providers,
our ability to generate revenue from our users’ search activity could be significantly reduced. |
| • |
Should the providers of platforms, particularly browsers, further block, constrain or limit our ability to offer or change search
properties, or materially change their policies, technology or the way they operate, our ability to generate revenue from our users’
search activity could be significantly reduced. |
| • |
Our advertising customers, comprised of brands, advertising agencies, demand side platforms (“DSPs”) and supply side
platforms (“SSPs”), may reduce or terminate their business relationship with us at any time which could have a material adverse
effect on our business, financial condition and results of operation. |
| • |
Large and established internet and technology companies, such as Google, Meta and Amazon, play a substantial role in the digital
advertising market and may significantly harm our ability to operate in this industry. |
| • |
We depend on supply sources to provide us with advertising inventory in order for us to deliver advertising campaigns in a cost-effective
manner. |
4
| • |
Non-compliance with industry self-regulation could negatively impact our Display Advertising business, brand and reputation.
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| • |
The advertising industry is highly competitive. If we cannot compete effectively and overcome the technological gaps in this market,
our revenue is likely to decline. |
| • |
If our campaigns are not able to reach certain performance goals or we are unable to measure certain metrics proving achievement
of those goals, this could have a material adverse effect on our business. |
| • |
Increased availability of advertisement-blocking technologies could limit or block the delivery or display of advertisements by our
solutions, which could undermine the viability of our business financial condition and results of operations. |
| • |
Our Advertising business depends on our ability to collect and use data, and any limitation on the collection to use of this data
could significantly diminish the value of our solutions and cause us to lose customers, revenue and profit. |
| • |
If we do not continue to innovate and provide high-quality advertising solutions and services, we may not remain competitive, and
our business and results of operations could be materially adversely affected. |
| • |
Our growth depends in part on the success of our relationships with advertising agencies, DSPs and SSPs. |
| • |
Our products are dependent on the platform terms of use and policies that are subject to changes out of our control. |
| • |
Global economic and market conditions and actions taken by our customers, suppliers and other business partners in markets in which
we operate might materially adversely impact us. |
| • |
A loss of the services of our senior management and other key personnel could adversely affect execution of our business strategy.
|
| • |
We have acquired and may continue to acquire other businesses. These acquisitions divert a substantial part of our resources and
management attention and could in the future, adversely affect our financial results. |
| • |
Our share price has fluctuated significantly and could continue to fluctuate significantly. |
| • |
Our business and financial performance may be materially adversely affected by information technology issues, data breaches, cyber-attacks
and other similar incidents, and other business disruptions. |
| • |
If we fail to detect or prevent suspicious traffic or other invalid traffic or engagement with our ads, or otherwise prevent against
malware intrusions, we could lose the confidence of our advertisers, damage our reputation and be responsible to make-good or refund demands,
which would cause our business to suffer. |
| • |
We depend on third party internet, telecommunication and hosting providers to operate our platforms, websites and services.
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| • |
Regulations, legislation or self-regulation relating to privacy, data collection and protection, e-commerce
and internet advertising and uncertainties regarding the application or interpretation of existing or newly adopted laws and regulations
could harm our business and subject us to significant legal liability for non-compliance. |
| • |
Our proprietary information and intellectual property may not be adequately protected and thus our technology may be unlawfully copied
by or disclosed to other third parties. |
5
| • |
Our business is significantly reliant on the North American market. Any material adverse change in that market could have a material
adverse effect on our results of operations and share price. |
| • |
Our business may be materially affected by changes to fiscal and tax policies. Potentially negative or unexpected tax consequences
of these policies, or the uncertainty surrounding their potential effects, could adversely affect our results of operations. |
| • |
Political, economic and military instability in the Middle East and specifically in Israel may impede our ability to operate and
harm our financial results. |
You should not rely on forward-looking statements as predictions
of future events. We have based the forward-looking statements contained in this Annual Report primarily on our current expectations and
projections about future events and trends that we believe may affect our business, financial condition and operating results. The outcome
of the events described in these forward-looking statements is subject to risks, uncertainties and other factors described in the section
titled “Risk Factors” and elsewhere in this Annual Report. Moreover, we operate in a very competitive and rapidly changing
environment. New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties
that could have an impact on the forward-looking statements contained in this Annual Report. The results, events and circumstances reflected
in the forward-looking statements may not be achieved or occur, and actual results, events or circumstances could differ materially from
those described in the forward-looking statements.
In addition, statements that “we believe” and similar
statements reflect our beliefs and opinions on the relevant subject. These statements are based on information available to us as of the
date of this Annual Report. While we believe that information provides a reasonable basis for these statements, that information may be
limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of,
all relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely on these statements.
The forward-looking statements made in this Annual Report relate
only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statements made
in this Annual Report to reflect events or circumstances after the date of this Annual Report or to reflect new information or the occurrence
of unanticipated events, except as required by law. We may not actually achieve the plans, intentions or expectations disclosed in our
forward-looking statements, and you should not place undue reliance on our forward-looking statements. Our forward-looking statements
do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments.
6
TABLE OF CONTENTS
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| A. Selected Financial Data | 10 |
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Item 19. Exhibits |
92 |
|
Signatures |
93 |
|
Index |
F - 2 |
9
PART I
ITEM 1. IDENTITY
OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
Not applicable.
ITEM 2. OFFER
STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM 3. KEY
INFORMATION
|
A. |
SELECTED FINANCIAL DATA |
Reserved.
|
B. |
CAPITALIZATION AND INDEBTEDNESS |
Not applicable.
|
C. |
REASONS FOR OFFER AND USE OF PROCEEDS |
Not applicable.
|
D. |
RISK FACTORS |
We are subject to various risks and uncertainties
relating to or arising out of the nature of our business and general business, economic, financial, legal and other factors or conditions
that may affect us. We believe that the occurrence of any one or some combination of the following factors could have a material
adverse effect on our business, financial condition, cash flows and results of operations.
Risks Related to our Search
Business
Our search advertising solution depends heavily
upon revenue generated from our agreement with Microsoft Bing, and any adverse change in that agreement could adversely affect our
business, financial condition and results of operations.
We are highly dependent on our search services agreement with Microsoft
Irelands Operations Limited. (“Microsoft”). We entered into our first agreement with Microsoft in 2010. In November 2020,
we entered into a renewed agreement with Microsoft effective as of January 1, 2021 until December 31, 2024 (the “Microsoft Agreement”).
In 2022, our search advertising business Unit, CodeFuel, was named by Microsoft Advertising the “Global Supply Partner of the Year”.
The Microsoft Agreement accounted for 37% and 35% of our revenue, in 2021 and 2022, respectively.
If our Microsoft Agreement is terminated or substantially amended (on
terms not favorable to us), we would experience a material decrease in our search advertising revenue or the profits it generates and
would be forced to seek alternative search providers, at less competitive terms or accelerate the business we have with such search providers.
There are few companies in the market that provide internet search and search advertising services similar to those provided by Microsoft
such as Google and Yahoo. Such companies are substantially the only participants in western markets, and competitors do not offer as much
coverage through sponsored links or searches. If we fail to quickly locate, negotiate and finalize alternative arrangements or otherwise
expedite current operations we have with such alternative search providers, or if we do, but the alternatives do not provide for terms
that are as favorable as those currently provided and utilized, we would experience a material reduction in our revenue and, in turn,
our business, financial condition and results of operations would be adversely affected.
The generation of search advertising revenue
through publishers is subject to competition. If we cannot compete effectively in this market, our revenue is likely to decline.
We obtain a significant portion of our revenue through the configuration
of our search service as the default search provider during the download and installation of our publishers’ products and/or use
by their services of our search offering and the subsequent searches performed by the users thereof. In 2021 and 2022, the top five publishers
distributing our search services accounted for approximately 19% and 11%, respectively, of our revenue. There can be no assurance that
these existing publishers will continue utilizing the revenue-generating monetization services at the levels they did in the past or at
all or on terms not less favorable to us. The loss of a substantial portion of our relationships with these publishers, or a substantial
reduction in their level of activity, could cause a material decline in our revenue and profitability.
To achieve these goals, we heavily rely on third-party
publishers to distribute and/or implement our search offering as a value-added component of their own offerings at a price sufficient
to drive acceptable margins. We are therefore constantly looking for more ways to distribute our search offering through various channels,
including through independent distribution efforts of our owned and operated products and services. There are other companies that generate
revenue from searches and some of them may have other monetization solutions. The large search engine companies, including Google, Microsoft,
Yahoo and others, have become increasingly aggressive in their own search service offerings. In addition, we need to continually maintain
the technological advantage of our platform, products and other services in order to attract publishers to our offerings. If the search
engine companies engage in more direct relationships with publishers or we are unable to maintain the technological advantage to service
our publishers, we may lose both existing and potential new publishers and our ability to generate revenue will be negatively impacted.
10
In order to receive advertising-generated revenue
from our search providers, we depend, in part, on factors outside of our control.
The amount of revenue we receive from search providers depends
upon a number of factors outside of our control, including the amount such search providers charge for advertisements, the efficiency
of the search provider’s system in attracting advertisers and syndicating paid listings in response to search queries and parameters
established by it regarding the number and placement of paid listings displayed in response to search queries. In addition, search providers
make analysis about the relative attractiveness (to their advertiser) of clicks on paid listings from searches performed on or through
our search assets, and these judgments factor into the amount of revenue we receive. Changes in the efficiency of a search providers’
paid listings network, in its judgment about the relative attractiveness of clicks on paid listings or in the parameters applicable to
the display of paid listings, which could come about for a number of reasons, including general market conditions, competition, inventory
availability or policy and operating decisions made by Microsoft or other search providers, could have an adverse effect on our business,
financial condition and our results of operations.
Should the methods used for the distribution
of our search solution, be blocked, constrained, limited, materially changed, based on a change of policies, technology or otherwise
(as has happened in the past), or made redundant by any of our search engine providers, our ability to generate revenue from our
users’ search activity could be significantly reduced.
Agreements with search providers, such as our agreements with Microsoft
and Yahoo, require compliance with certain policies promulgated by them for the use of the respective brands and services, including the
manner in which paid listings are displayed within search results, and the establishment of policies to govern certain activities of third
parties to whom the search services are syndicated, including the manner in which those parties can acquire new users and drive search
traffic. Subject to certain limitations, search partners may unilaterally update their policies, which could, in turn, require modifications
to, or prohibit and/or render obsolete certain of our search solutions, products, services and practices, which could be costly to address
or otherwise have an adverse effect on our business, our financial condition and results of operations. Noncompliance with the search
partners’ policies, whether by us or by third parties to which we syndicate paid listings or by the publishers through whom we secure
distribution arrangements could, if not cured, result in such companies’ suspension of some or all of their services to us, or to
the websites of our third party publishers, or the reimbursement of funds paid to us, or the imposition of additional restrictions on
our ability to syndicate paid listings or distribute our search solution or the termination of the search distribution agreement by our
search partners.
These policies, with respect to method of distribution, homepage
resets and default search resets to search engine services, were changed by both Microsoft and Google numerous times in the past, having
negative revenue implications. Since then, both companies have continued instituting other changes to the policies governing their relationship
with search partners. Should any of our large partnerships be deemed non-compliant, blocked or partner with another provider, it could
be difficult to replace the revenue generated by that partnership and we would experience a material reduction in our revenue and, in
turn, our business, financial condition and results of operations would be adversely affected.
Should the providers of platforms, particularly
browsers, further block, constrain or limit our ability to offer or change search properties, or materially change their policies,
technology or the way they operate, our ability to generate revenue from our users’ search activity could be significantly
reduced.
As we provide our services through the internet,
we are reliant on our ability to work with the different internet browsers. The internet browser market is extremely concentrated with
Google’s Chrome, Microsoft Edge, Mozilla’s Firefox and Safari, accounting for over 93% of the desktop browser market in 2022,
and Google’s Chrome alone accounting for over 66%, based on StatCounter reports. In the past years, internet browser providers such
as Google and Microsoft made changes and updated their policies and technology in general, and specifically those relating to change of
search settings. Each such change limits and constrains our ability to offer or change search properties. In addition, the desktop operating
system market is very concentrated as well, with Microsoft Windows dominating over 75% of the market in 2022, and Apple operating systems
accounting for more than 15% of that market, based on StatCounter reports. In June 2018 Google limited the ability to install Chrome browser
extensions only from within the Chrome Web Store. Some of these changes limited our ability to maintain our users’ browser settings.
If Microsoft, Google, Apple or other companies that provide internet browsers, operating systems or other platforms that effectively further
restrict, discourage or otherwise hamper companies, like us, from offering or changing search services, this would continue to cause a
material adverse effect on our revenue and our financial results.
11
Currently most individuals use
mobile devices to access the internet, while a substantial part of our search revenue generation and services are currently not widely
spread on mobile platforms. Also, web-based software and similar solutions impact the attractiveness of downloadable software products.
Historically, the market related to desktop computers
has accounted for substantial part of our search revenue. In recent years, there has been a trend towards shifting internet usage from
desktop computers to mobile devices such as mobile phones, tablets, etc. While in 2016 desktop worldwide market share was 54.09% it declined
to 45.91% in 2017 and stands at 40.34% in 2022, based on StatCounter reports. On the other hand, mobile worldwide market share in 2016
was 45.91% rising to 54.09% in 2017 and stands at 59.66% in 2022, based on StatCounter reports. If this trend towards using non-desktop
devices accelerates and desktop usage further declines, our search offerings will become less relevant and may fail to attract publishers
and web traffic. In addition, even if consumers do use our services, our revenue growth will still be adversely affected if we do not
rapidly and successfully implement adequate revenue-generating models for mobile platforms to respond to such decline in desktop usage.
Web (or “cloud”) based software and similar solutions
do not require the user to download software and thus provide a very portable and accessible alternative for desktop computers, as compared
to downloadable software. While there are advantages and disadvantages to each method and system and the markets for each of them remain
large, the market for web-based systems is growing at the expense of downloadable software. Should this trend accelerate faster than our
partners’ ability to provide differentiating advantages in their downloadable solutions, this could result in fewer downloads of
their products and lower search revenue generated through the download of these products. See Item 4.B. “Business Overview—Competition”
for additional discussion of our competitive market.
Our software or provision of search services
or advertising is occasionally blocked by software or utilities designed to protect users’ computers, thereby causing our business
to suffer.
Some of our products and offerings are viewed by some third parties,
such as anti-virus software providers, as promoting or constituting “malware” or “spamming,” or unjustly changing
the user’s computer settings. As a result, our software, the software of our publishers, provision of search services or advertising
is occasionally blocked by software or utilities designed to detect such practices. If this phenomenon increases or if we are unable to
detect and effectively deal with such categorization of our products, we may lose both existing and potential new users and our ability
to generate revenue will be negatively impacted.
Risks Related to our Business and Industry
Our advertising customers comprised of brands,
advertising agencies, DSPs and SSPs may reduce or terminate their business relationship with us at any time. If customers representing
a significant portion of our revenue reduce or terminate their relationship with us, it could have a material adverse effect on our business,
financial condition and results of operation.
We generally do not enter into long-term contracts with our advertising
customers, which include brands, demand side partners, agencies, and supply side partners, and such customers do business with us on a
non-exclusive basis. In most cases, our customers may terminate or reduce the scope of their agreements with little or no penalty or notice.
Accordingly, our business is highly vulnerable to adverse economic conditions, market evolution, development of new or more compelling
offerings by our competitors and development by our advertising customers of in-house replacement services. Any reduction in spending
by, or loss of, existing or potential advertisers would negatively impact our business, financial conditions and results of operation.
Furthermore, the discretionary, non-exclusive nature of our relationships
with Advertising Customers subject us to increased pricing pressure. Although we believe our rates are competitive, our competitors may
be able to offer more favorable pricing or other advantageous terms. In light of the above factors, we seek to diversify our offerings
and, as part of our strategy, provide our customers with different advertising solutions and constantly adapt our relationship with our
customers to respond to their ever changing needs. As a result, we may be compelled to reduce our rates, offer other incentives or other
more compelling pricing models in order to maintain our current customers and attract new customers. If a significant number of customers
are able to compel us to charge lower rates or provide rate concessions or incentives, there is no assurance that we would be able to
compensate for such price reductions or conserve our profit margins.
12
Large and established internet and technology
companies, such as Google, Meta and Amazon, play a substantial role in the digital advertising market and may significantly harm
our ability to operate in this industry.
Google, Meta and Amazon are substantial players in the digital
advertising market and account for a large portion of the digital advertising budgets, along with other smaller players. Such high concentration
causes us to be subject to any unilateral changes they may make with respect to advertising on their respective platforms, which may be
more lucrative than alternative methods of advertising or partnerships with other publishers that are not subject to such changes. Furthermore,
we could have limited ability to respond to, and adjust to, changes implemented by such players.
These companies, along with other large and established internet
and technology companies, may also leverage their power to make changes to their web browsers, operating systems, platforms, networks
or other products or services in a way that impacts the entire digital advertising marketplace.
Google Chrome internet browser supports the “Better Ads Standards”
implemented by the Coalition for Better Ads, an industry body formed by leading international trade associations and companies involved
in online media (in which our subsidiary, Undertone is also a member), and removes all ads from certain sites that violate this standard.
In addition, in March 2021, Google announced the phase-out support for third-party cookies in Chrome (which was postponed by Google twice
to late 2024). Moreover, leading mobile operating systems, including Apple iOS and Google Android, have implemented and may plan to further
implement advertising and targeting restrictions within applications running on their platforms.
This, together with other advertisement-blocking technologies incorporated
in or compatible with leading internet browsers and operating systems, could impact our (as well as those of our competitors) advertising
business. These changes could materially impact the way we do business, and if we or our advertisers and publishers are unable to quickly
and effectively adjust and provide solutions to those changes, there could be an adverse effect on our revenue and performance.
The concentration of players within the industry
and consolidation among participants within the digital advertising market could have a material adverse impact on our business,
financial condition and results of operations.
The digital advertising industry has experienced substantial evolution
and consolidation in recent years and we expect this trend to continue, increasing the capabilities and competitive posture of larger
companies, particularly those that are already dominant in various ways, and enabling new or stronger competitors to emerge. We are currently
able to serve, track and manage advertisements for our customers as well as for our own operations, on a variety of networks and websites.
The consolidation trend could substantially harm our ability to operate if such consolidated companies decide not to permit us to serve,
track or manage advertisements on their websites and/or on our properties, if they develop ad placement systems that are incompatible
with our ad serving capabilities or if they use their market power to force their customers to use certain vendors on their networks or
websites and/or on our properties.
Certain of our primary advertisers and publishers are owned, affiliated
with or controlled by a small number of large holding companies. If any of these holding companies decide to reduce, amend or terminate
their business relationship with us for any reason, and/or in case there is a rapid and/or significant decline in inventory available
to us, it may lead to a material adverse impact on our business, financial conditions and results of operation.
If the demand for digital advertising
does not continue to grow or customers do not embrace our solutions, this could have a material adverse effect on our business and
results of operation.
A substantial portion of our advertising revenue
is derived from the sale of our digital advertising solutions and we have made significant investments in our ability to deliver different
types of advertisements, including high impact advertising, video advertising, connected TV (“CTV”) and interactive TV (“iCTV”),
which are compatible on multiple devices and channels as well as different content monetization solutions for which we partnered with
advertising networks in order to be able to serve ads on our properties as well properties of our publishers. Nonetheless, (i) if customers
do not embrace our solutions, (ii) if our integration with advertising networks is not successful, (iii) if there is a reduction in general
demand for digital advertising or in spend for certain channels or solutions, or (iv) if the demand for our specific solutions and offerings
decreases, it may lead to a material adverse impact on our business, financial conditions and results of operation.
13
Due to our evolving business model and rapid
changes in the industry in which we operate and the nature of services we provide, it is difficult to accurately predict our future
performance and may be difficult to increase revenue or profitability.
As the digital advertising ecosystem is dynamic, seasonal and subject
to shifts in spending trends, it is hard to predict our future performance, particularly with regard to the effect of our efforts to increase
revenue and profitability. Although we diversify our business, there is no assurance that we will not be adversely affected by shifts
in advertisers’ spending. If we are unable to continuously improve our systems and processes, adapt to the changing and dynamic
needs of our customers or align our expenses with our revenue level, it will impair our ability to be compelling and may adversely affect
our business and profitability.
In addition, we may experience an overall decline in advertising
spending and demand for our solutions as a result of enhanced competition, decrease in market demand, macroeconomic conditions, higher
rates of global inflation and shifts in spending trends. If we are unable to respond to such changes and timely adapt our business model,
we may not be able to sustain growth, meet our business targets or achieve or sustain profitability and our business may be adversely
affected.
We depend on supply sources to provide us with
advertising inventory in order for us to deliver advertising campaigns in a cost-effective manner.
We rely on a diverse set of publishers including direct publishers, advertising exchange
platforms, social networks and other platforms, that aggregate advertising inventory, to provide us with high-quality digital advertising
inventory on which we deliver ads, collectively referred to as “supply sources”. Our intelligent HUB (“iHUB”)
allows us to optimize utilization of our owned operated supply, as well as what is available on the open web. Together with that,
the future growth of our advertising business will depend, in part, on our ability to maintain, expand and further develop successful
business relationships in order to increase the network of our supply sources.
Our supply sources typically make their advertising inventory available
to us on a non-exclusive basis and are not required to provide any minimum amounts of advertising inventory to us or to provide us with
a consistent supply of advertising inventory, at any predetermined price or through real time bidding. Supply sources often maintain relationships
with various sources of demand that compete with us, and it is easy for supply sources to quickly shift their advertising inventory among
these demand sources, or to shift inventory to new demand sources, without notice or accountability. Supply sources may also seek to change
the terms at which they offer inventory to us, or they may allocate their advertising inventory to our competitors who may offer more
favorable economic terms, better solutions and advanced technology. Supply sources may also elect to sell all, or a portion, of their
advertising inventory directly to advertisers and agencies, or they may develop their own competitive offerings, which could diminish
the demand for our solutions. In addition, significant supply sources within the industry may enter into exclusivity arrangements with
our competitors, which could limit our access to a meaningful supply of inventory. As a result of all of these factors, our supply sources
may not supply us with sufficient amounts of high-quality digital advertising inventory in order for us to fulfill the demands of our
advertising customers.
Additionally, our ability to access advertising inventory in a
cost-effective manner may be constrained or affected as a result of a number of other factors, including, but not limited to:
| • |
Supply sources may impose significant restrictions on the advertising inventory they sell or may impose other unfavorable terms and
conditions on the advertisers using their sites or platforms. For example, these restrictions may include frequency caps, prohibitions
on advertisements from specific advertisers or specific industries, or restrictions on the use of specific creative content or advertising
formats as well as content adjacent restrictions, which would restrain our supply of available inventory. |
| • |
Supply sources that offer online content and mobile applications may shift from an advertising-based monetization method to a pay
for content/services model, thereby reducing available inventory. |
14
| • |
Social media platforms may be successful in keeping
users within their sites via products such as Facebook’s, which may be competitive to our offerings and solutions. If, as a result,
users are not on the open web, advertising inventory outside of such platforms (including our publishers’ and our owned and operated
sites) may be reduced or may become less attractive to our advertising customers. |
| • |
Supply sources may be reluctant or unable to adopt certain of our proprietary and unique high-impact, CTV, iCTV and video ad formats
for a variety of reasons (such as changes in user preference making such ad formats less desirable, or technological limitations, such
as connection with header bidding or the ability to transact programmatically), resulting in limited advertising inventory supply for
such formats and inhibiting our ability to scale such formats. |
Because of these factors, we seek to expand and diversify our supply
sources; nonetheless, if our supply sources terminate or reduce our access to their advertising inventory, increase the price of inventory
or place significant restrictions on the sale of their advertising inventory, or if platforms or exchanges terminate our access to them
and we are unsuccessful in establishing or maintaining our relationships with supply sources on commercially reasonable terms, we may
not be able to replace this with inventory from other supply sources that satisfy our requirements in a timely and cost-effective manner.
If any of these happens, our revenue could decline or our cost of acquiring inventory could increase, which, in turn, could lower our
operating margins and materially adversely affect our advertising business. For additional information see also the Risk Factor titled
- “The consolidation among participants within the digital advertising market could have a material
adverse impact on our business, financial condition and results of operations.”
Our Display Advertising business depends on
a strong brand reputation, and if we are not able to maintain and enhance our brand, our business and results of operations could
be materially adversely affected.
Maintaining and enhancing our brands is an important aspect of
our efforts to attract and expand our SSPs (Supply Side platforms) agency, advertiser, DSPs (Demand Supply Platforms) and publisher base.
We have spent, and expect to continue spending considerable sums and other resources on the establishment, building and maintenance of
our brands, as well as on enhancing market awareness of them. Our brands, however, may be negatively impacted by a number of factors,
including but not limited to, fraudulent, inappropriate or misleading content on our own sites and those we operate, as well as on publishers’
sites on which we serve ads, service outages, product malfunctions, data protection and cybersecurity issues, and exploitation of our
trademarks by others without our permission. If we are unable to maintain or enhance our brands in a cost-effective manner, our business
and operating results could be materially adversely affected.
Non-compliance with industry self-regulation
could negatively impact our Display Advertising business, brand and reputation.
In addition to compliance with applicable laws and regulations,
we voluntarily participate in industry self-regulatory bodies such as the Network Advertising Initiative, or the NAI, and the Digital
Advertising Alliance, or DAA, which promulgate best practices or codes of conduct addressing, inter alia, privacy and the delivery of
digital advertising. Undertone also voluntarily participates in several of such trade associations and industry self-regulatory groups,
including the NAI, the DAA, the Interactive Advertising Bureau (IAB) and TAG Certified Against Fraud. If we or Undertone are unable to
follow and abide by the rules and principles provided by such self-regulatory bodies and/or align the conduct of our business and practices
with changes to such rules and principles, we may be subject to investigations by such self-regulatory bodies or other accountability
groups, our customers and partners as well as users. Handling such actions may require us to devote financial and managerial resources,
require us to change our business practices, or cause damage to our brand, which in turn could materially adversely affect our business,
financial condition and results of operations. We also could be adversely affected by new or altered self-regulatory guidelines that are
inconsistent with our current practices or in conflict with applicable laws and regulations in the United States, Europe, Israel and other
regions where we do business. If we fail to abide by or are perceived as not operating in accordance with industry best practices or any
industry guidelines or codes with regard to privacy or the delivery of digital advertising, our reputation may suffer and we could lose
relationships with both buyers and sellers which may adversely affect our business and results of operations.
15
We may be unable to deliver advertising in a
brand-safe environment, which could harm our reputation and cause our business to suffer.
It is important for advertisers that their advertisements are not
placed in or near content that is unlawful or would be deemed offensive or inappropriate by their customers, or near other advertisements
for competing brands or products. While we strive to have all of our online advertisements appear in a brand-safe environment, we cannot
guarantee that they will be delivered in such an environment. If we are not successful in doing so, our reputation could suffer and our
ability to attract potential advertisers and retain and expand business with existing advertisers could be harmed, or our customers may
seek to avoid payment or demand refunds, any of which could harm our business, financial condition and results of operations.
The advertising industry is highly competitive.
If we cannot compete effectively and overcome the technological gaps in this market, our revenue is likely to decline.
We face intense competition in the marketplace. We operate in a
dynamic market that is subject to rapid development and the introduction of new technologies, products and solutions, changing branding
objectives, evolving customer demands rules, regulations and industry guidelines, all of which affect our ability to remain competitive.
There are a large number of digital media companies and advertising technology companies that offer products or services similar to or
more compelling than ours and that compete with us for finite advertising budgets and for limited inventory from publishers. Additionally,
companies that do not currently compete with us in this space may change their services to be competitive if there is a revenue opportunity,
and new or stronger competitors may emerge through consolidations or acquisitions. If our digital advertising platform and solutions are
not perceived as competitively differentiated or we fail to develop adequately to meet market evolution, or acquire companies to help
us overcome the technological gaps in a timely manner and meet the market demands, we could lose customers and market share or be compelled
to reduce our prices and harm our operational results.
Our reputation is a key factor in our ability to compete successfully.
There is no assurance that our ability to compete effectively in the future may not be affected by negative market perception. Because
of these factors, we continuously seek to diversify our product suite to respond to the changing needs and interests of our customers
to benefit from a variety of different offerings, however, we cannot guarantee that we will always be able to accommodate such needs,
that such efforts would yield the expected revenue or that we will adapt quickly enough (or in a cost effective manner) to evolving changes
in the industry in which we operate and related regulations, technologies, applications and devices, which could adversely impact our
reputation, and, in turn, our business, financial condition and results of operations.
Our advertising business is susceptible to seasonality,
unexpected changes in campaign size and prolonged cycle time, which could affect our business and results of operations.
The revenue of our advertising business is affected by a number
of factors, including:
| • |
Historically, in most cases our advertising business experienced the lowest revenue levels in the first quarter and the highest revenue
levels in the fourth quarter, with the second and third quarters being slightly stronger than the first quarter (except for 2020 as a
result of the initial effect of COVID-19); |
| • |
Product and service revenue are influenced by political advertising in the US, which generally occurs every two years; |
| • |
In any single period, product and service revenue and delivery costs are subject to significant variation based on changes in the
volume and mix of deliveries performed during such period; |
| • |
Revenue is subject to the changes of brand marketing trends, including when and where brands choose to spend their money in a given
year; |
| • |
Advertising customers generally retain the right to supplement, extend, or cancel existing advertising orders at any time prior to
their delivery, and we have no control over the timing or magnitude of these revenue changes; and |
| • |
Relative complexity of individual advertising formats, and the length of the creative design process. |
As a result, in most cases, our profit from these operations is
seasonal, with the fourth quarter being the major contributor to our profits and the first quarter resulting in the lowest profit.
16
If our campaigns are not able to reach certain
performance goals or we are unable to measure certain metrics proving achievement of those goals, this could have a material adverse
effect on our business.
Our advertising clients expect and often demand that our advertising
campaigns achieve certain performance levels based on metrics such as user engagement, view ability, clicks or conversions, to validate
their value proposition, particularly as we offer costlier premium advertising services to clients. We may have difficulty achieving or
proving these performance levels for a variety of reasons (for example, it may be difficult to track view ability on our proprietary high-impact
ad units, either directly or through a third-party vendor), which could cause clients to cancel campaigns, not provide repeat business
or request make-goods or refunds.
Increased availability of advertisement-blocking
technologies could limit or block the delivery or display of advertisements by our solutions, which could undermine the viability
of our business, financial condition and results of operations.
Advertisement-blocking technologies, such as mobile apps or browser
extensions that limit or block the delivery or display of advertisements, are currently available for desktop, tablet and mobile users.
Further, new browsers and operating systems, or updates to current browsers or operating systems, offer native advertisement-blocking
technologies to their users, such as the support of Google Chrome in blocking advertisements from web sites that violate the “Better
Ads Standards” established by the Coalition for Better Ads (in which Undertone is a member). Furthermore, users can employ their
own ad blocking client-based technology or use a browser that block ads. As such technologies or practices become widespread, this could
have a material adverse effect on our business, financial condition and results of operations.
Our Advertising business depends on our ability
to collect and use data, and any limitation on the collection and use of this data could significantly diminish the value of our
solutions and cause us to lose customers, revenue and profit.
In many cases, when we deliver an advertisement, we are able to
collect certain data about the content and placement of the ad, the relevancy of such ad to a user and the interaction of the user with
the ad, such as whether the user viewed or clicked on the ad or watched a video. As we collect and aggregate data provided by billions
of ad impressions and third-party providers, we analyze the data in order to measure and optimize the placement and delivery of our advertising
inventory and provide cross-channel advertising capabilities. Our ability to access and utilize such data is crucial.
Our publishers or advertisers may decide not to allow us to collect
some or all of this data or may limit our use of this data. Additional details regarding limitations on the collection and use of this
data due to existing and new laws and regulations are provided below under “Risks Related to Regulatory Changes— Regulatory,
legislative, or self-regulatory developments relating to e-commerce, internet advertising, privacy and data collection and protection,
and uncertainties regarding the application or interpretation of existing laws and regulations, could harm our business and subject us
to significant legal liability for non-compliance.”
If we do not continue to innovate and provide
high-quality advertising solutions and services, we may not remain competitive, and our business and results of operations could
be materially adversely affected.
Our success depends on our ability to provide customers with innovative,
high-quality advertising solutions and services that foster consumer engagement. We face intense competition in the marketplace and are
confronted by rapidly changing technology, evolving industry standards, rules and regulations and consumer needs, and the frequent introduction
of new products and solutions by competitors, as well as publishers themselves, that we must adapt and respond to in order to remain competitive.
While developments in artificial intelligence in our industry may present significant opportunities to our business, at the same time,
such developments may raise unexpected challenges, legal or technological, or may not function as expected.
Therefore, our continued success depends in part upon our ability
to develop new solutions and technologies, enhance our existing solutions and expand the scope of our offerings to meet the evolving needs
of the industry. As a result, we must continue to invest significant resources in research and development in order to enhance our technology
and our existing solutions and services, and introduce new high-quality solutions and services.
Our operating results will also suffer if our innovations are not
responsive to the needs of our customers, are not appropriately timed with market opportunity or are not effectively brought to market.
If we are unable to accurately forecast market demands or industry changes, if we are unable to develop or introduce our solutions and
services in a timely manner, or if we fail to provide quality solutions and services that run without complication or service interruptions
or do not respond properly to the ever changing technological landscape, we may damage our brand and our ability to retain or attract
customers. As online advertising technologies continue to develop, our competitors may be able to offer solutions that are, or that are
perceived to be, substantially similar to or better than those offered by us. Customers will not continue to do business with us if our
solutions do not deliver advertisements in an appropriate and effective manner, through a variety of distribution channels and methods,
or if the advertising we deliver does not generate the desired results. In addition, advertising customers may find that content made
available through our properties is not suitable for their advertising requirements or that our competitors offer content which is more
lucrative and relevant to their advertising needs, resulting in reduction of their advertising spend with us. If we are unable to meet
these challenges, our business, financial condition and results of operations could be materially adversely affected.
17
Sales efforts with advertisers and ad agencies
require significant time and expense and may ultimately be unsuccessful.
Contracting with new advertisers and ad agencies requires substantial
time and expenses, and we may not be successful in establishing new relationships or in maintaining current relationships. It is often
difficult to identify, engage, and market to potential advertising customers who are unfamiliar with our brand or services, and we may
spend substantial time and resources educating customers about our unique offerings, including providing demonstrations and comparisons
against other available solutions, without ultimately achieving the desired results. In addition, there has been commoditization of services
provided in digital advertising, resulting in margin pressure. Furthermore, many of our advertising clients’ purchasing and design
decisions generally require input from multiple internal and external parties of these clients, requiring that we identify those involved
in the purchasing decision and devote a sufficient amount of time to present our services to each of those decision-making individuals.
We may not be able to reduce our sales and marketing expenses to correspond proportionately to periods of reduced revenue. If we are not
successful in streamlining our sales processes with potential clients in a cost-effective manner, or if our efforts are unsuccessful,
our ability to grow our business may be adversely affected.
Our growth depends in part on the success of
our relationships with advertising agencies, DSPs and SSPs.
While we work with some brand advertisers directly, our primary
advertising customers are advertising agencies, DSPs and SSPs who are paid by their brand or other advertiser customers to develop their
media plans. The agencies, DSPs and SSPs in turn, contract with third parties, like us, to execute and fulfill their brands’ advertising
campaigns. As a result, our future growth will depend, in part, on our ability to enter into and maintain successful business relationships
with advertising agencies, DSPs and SSPs.
Identifying agencies, DSPs and SSPs, engaging in sales efforts,
and negotiating and documenting our agreements with agencies, DSPs and SSPs require significant time and resources. These relationships
may not result in additional brand or other advertiser customers or campaigns for our business, and may not ultimately enable us to generate
significant revenue. Our contracts with advertising agencies, DSPs and SSPs are typically non-exclusive and they often work with our competitors
or offer competing services or solutions.
When working with agencies, DSPs and SSPs to deliver campaigns
on behalf of their brand and other advertiser customers, we generally bill the agency, DSP and SSP for our products and services, and
in most cases, the brand has no direct contractual commitment to us to make any payments. While we have benefited from our relationships
with the agencies, DSPs and SSPs we work with, there is no assurance that these circumstances do not result in the future in longer collection
periods, increased costs associated with pursuing brands directly for payments, or our inability to collect payments. In summary, if we
are unsuccessful in establishing or maintaining our relationships with these agencies, DSPs and SSPs on commercially reasonable terms
or if the agencies are unable to effectively collect corresponding payments from the brands, our ability to compete in the marketplace
or to grow our revenue could be impaired and our operating results could suffer.
If the demand for social advertising
management platforms does not grow as expected, or if our solution for advertising through those channels is not competitive, the
revenue related to our actionable performance monitoring platform could decline.
We leverage the capabilities of our actionable performance monitoring
SaaS platform to offer our customers the ability to deliver ads on social networks. The future growth of our revenue in this category
could be negatively impacted if our software and service do not meet the expectations of our existing and new customers. It is likely
to happen in the event that our software is not continuously developed in order to address the increased requirements associated with
advertising in these channels. In addition to the foregoing, our paid social advertising platform is dependent on our ability to create,
optimize, and manage our customers’ advertising campaigns as well as retrieve and push advertising campaign data to myriad of networks
and tools in real time, such as Facebook, Instagram, Messenger, Google, TikTok, LinkedIn, Snapchat, Pinterest and Twitter. We are subject
to each social network’s respective terms and conditions governing our ability to access and utilize its platform. Our paid social
advertising platform would be harmed if any of these social networks discontinues our partnership, makes changes to its platform, or modifies
the terms and standards applicable to its marketing partners or to advertising on its platform in general. Moreover, these social networks
may develop offerings or features that compete with or substitute our solution or may otherwise make changes to their platforms that would
render our social advertising solution obsolete. Further, consumers may migrate away to other social networking platforms with which we
are not affiliated, which would in turn decrease the demand for our solutions. Any of these outcomes could cause demand for our paid social
advertising platform to decrease, our development costs to increase, and our results of operations and financial condition to be materially
adversely affected.
18
Our
products are dependent on the platform terms of use and policies that are subject to changes out of our control.
Most of our Products depend upon the platforms’ terms of
use and policies (i.e., Google Chrome, Edge, Mozilla, Apple, and Microsoft) which could also affect the terms of use of other platforms
in the industry. We do not control these platforms and cannot anticipate changes made to their policies, and as a result, we are subject
to risks and uncertainties. These policies, guidelines and terms of service govern the promotion, distribution, content and operation
generally of applications and content available through such platforms. Each platform has broad discretion to revise its terms of service,
guidelines and policies, and those changes may have an adverse effect on us or our customers’ ability to use distribute the Products.
A platform may also limit the use of personal information and other
data for advertising purposes or restrict how users can share information on their platform or across other platforms. If we or our customers
were to violate the terms of service, guidelines, certifications or policies, or if a platform believes that we or our customers have
violated, its terms of service, guidelines, certifications or policies, then that platform could limit or discontinue our or our customers’
access. In some cases, these requirements may not be clear and our interpretation of the requirements may not align with the interpretation
of the platform, which could lead to inconsistent enforcement of these terms of service or policies against us or our customers and could
also result in limiting or discontinuing access to its platform.
These platforms further frequently introduce new technology. Our
reliance on their technology reduces our control over quality of service and exposes us to potential service outages.
Global economic and market conditions
and actions taken by our customers, suppliers and other business partners in markets in which we operate might
materially adversely impact us.
Negative conditions in the general economy, including conditions
resulting from changes in gross domestic product growth, labor shortages, supply chain disruptions, inflationary pressures, rising interest
rates, financial and credit market fluctuations, international trade relations and/or the imposition of trade tariffs, political turmoil,
natural catastrophes, regional or global outbreaks of contagious diseases, such as the COVID-19 pandemic, warfare and terrorist attacks,
could cause a decrease in business investments, including spending on advertising, disrupt the timing and cadence of key industry events
and otherwise could materially and adversely affect the growth of our business.
Geopolitical risks, including those arising from trade tension
and/or the imposition of trade tariffs, terrorist activity or acts of civil or international hostility, are increasing. Similarly, the
ongoing military conflict between Russia and Ukraine has had negative impacts on the global economy, including by contributing to rapidly
rising costs of living (driven largely by higher energy prices) and created uncertainty in the global capital markets and is expected
to have further global economic consequences, including disruptions of the global supply chain and energy markets. Further, other events
outside of our control, including natural disasters, climate change-related events, pandemics (such as the COVID-19 pandemic) or health
crises may arise from time to time and be accompanied by governmental actions that may increase international tension. Any such events
and responses, including regulatory developments, may cause significant volatility and declines in the global markets, disproportionate
impacts to certain industries or sectors, disruptions to commerce (including to economic activity, travel and supply chains), loss of
life and property damage, and may materially and adversely affect the global economy or capital markets, as well as our business and results
of operations.
19
Additionally, the global economy, including credit and financial
markets, has experienced extreme volatility and disruptions, and may continue to experience such disruptions in the future, including
severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in unemployment
rates, increases in inflation rates, higher interest rates and uncertainty about economic stability. As a result of these factors, our
revenue may be affected by both decreased customer acquisition and lower than anticipated revenue growth from existing customers. For
example, the COVID-19 pandemic resulted in widespread unemployment, economic slowdown and extreme volatility. Similarly, the ongoing military
conflict between Russia and Ukraine has created extreme volatility in the global capital markets and has caused and could continue to
cause disruptions of the global supply chain and energy markets. While the portion of our revenue directly associated with Russia and
Ukraine is not material to our consolidated financial results, our business may be affected by broader economic factors caused or intensified
due to the invasion.
Any such volatility and disruptions may have material and adverse
consequences on us and our customers. Increased inflation and/or interest rates can adversely affect us by increasing our costs, including
labor and employee benefit costs. Any significant increases in inflation and related increase in interest rates could have a material
and adverse effect on our business or our, financial condition or results of operations.
Further, to the extent there is a sustained general economic downturn
and if there is a reduction in general demand and spending for digital advertising, our revenue may be disproportionately affected. Also,
competitors, many of whom are larger and more established than we are, may respond to market conditions by lowering prices and attempting
to lure away our customers. We cannot predict the timing, strength or duration of any economic slowdown, instability or recovery, generally
or within any particular industry. If the economic conditions of the general economy or markets in which we operate worsen from present
levels, our business, results of operations and financial condition could be materially and adversely affected.
Risks related
to our Financial and Corporate Structure
A loss of the services of our senior management
and other key personnel could adversely affect execution of our business strategy.
We depend on the capabilities and experience, and the continued services, of our senior
management. The loss of the services of members of our senior management could create a gap in management and could result in the loss
of expertise necessary for us to execute our business strategy and thereby adversely affect our business. We recently announced entering
a CEO transition period, as Tal Jacobson, currently General Manager of CodeFuel, our search advertising business, will be promoted to
Chief Executive Officer on August 1, 2023. Following Jacobson’s promotion, our current Chief Executive Officer, Doron Gerstel, will
step down from the executive team and remain on our Board of Directors.
Further, our ability to execute our business strategy also depends
on our ability to continue to attract, retain and motivate qualified and skilled technical and creative personnel and skilled management,
marketing and sales personnel, as well as third party technology vendors and other consultants and contractors. We operate out of different
locations around the globe and competition for well-qualified employees in our industry is intense and our continued ability to compete
effectively depends, in part, upon our ability to retain existing key employees and to attract new skilled and qualified employees as
well, which can be difficult, expensive and time-consuming. If we cannot attract and retain additional experienced key employees or if
we lose one or more of our current key employees, our ability to develop or market our products and attract or acquire new users could
be adversely affected. Although we have established programs to attract new employees and provide incentives to retain existing employees,
particularly senior management, we cannot be assured that we will be able to retain the services of senior management or other key employees
as we continue to integrate and develop our solutions or that we will be able to attract new employees in the future who are capable of
making significant contributions and we may face challenges in adequately or appropriately integrating them into our workforce and organizational
culture. See Item 6. “Directors, Senior Management and Employees.”
20
Competition for highly skilled technical and
other personnel mainly in Israel and in the United States is intense, and as a result we may fail to attract, recruit, retain and develop
qualified employees, which could materially and adversely impact our business, financial condition and results of operations.
We compete in a market marked by rapidly changing technologies
and an evolving competitive landscape. In order for us to successfully compete and grow, we must attract, recruit, retain and develop
personnel with requisite qualifications to provide expertise across the entire spectrum of our intellectual capital and business needs.
Our principal research and development, certain sales and marketing
as well as significant elements of our general and administrative activities are conducted at our headquarters in Israel and in the United
States, and we face significant competition for suitably skilled employees in Israel and the United States. There has been intense competition
for qualified human resources in the high-tech industry, which may intensify at times of sharp growth of the industry, as was the case
in 2021-2022, which resulted in high employee attrition. While recent layoffs carried out by large companies present good recruitment
opportunities to our company, our industry is still characterized by high competition between employers. Many of the companies with which
we compete for qualified personnel have greater resources than we do, and we may not succeed in recruiting additional experienced or professional personnel, retaining personnel
or effectively replacing current personnel who may depart with qualified or effective successors.
In addition, as a result of the intense competition for qualified
human resources, the Israeli and U.S. high-tech market has also experienced and may continue to experience significant wage inflation. Accordingly,
our efforts to attract, retain and develop personnel may also result in significant additional expenses, which could adversely affect
our profitability. Furthermore, in making employment decisions, particularly in the high-technology industry, job candidates often consider
the value of the equity they are to receive in connection with their employment. While we offer competitive equity and compensation terms
with our employees as a means of improving our employee retention, those terms and agreements may not be effective towards that goal.
In light of the foregoing, there can be no assurance that qualified
employees will remain in our employ or that we will be able to attract and retain qualified personnel in the future. Failure to retain
or attract qualified personnel could have a material adverse effect on our business, financial condition and results of operations.
We have acquired and may continue to acquire other businesses. These
acquisitions divert a substantial part of our resources and management attention and could in the future, adversely affect our financial
results
We acquired Make Me Reach (currently, Paragone) in February 2015 and Undertone in November
2015, Captain Growth in March 2019, Content IQ in January 2020, Pub Ocean in July 2020 and Vidazoo in October 2021 and we may continue
to acquire complementary products, technologies or businesses. These acquisitions divert a substantial part of our resources and management
attention and could in the future, adversely affect our financial results. Seeking and negotiating potential acquisitions to a certain
extent diverts our management’s attention from other business concerns and is expensive and time-consuming. Acquisitions expose
us and our business to unforeseen liabilities or risks associated with the business or assets acquired or with entering new markets. In
addition, we lost and might continue to lose key employees and vendors while integrating new organizations and may not effectively integrate
the acquired products, technologies or businesses or achieve the anticipated revenue or cost benefits, and we might harm our relationships
with our future or current technology suppliers. Future acquisitions could result in customer dissatisfaction or vendor dissatisfaction
or performance problems with an acquired product, technology or company. Paying the purchase price for acquisitions in the form of cash,
debt or equity securities may weaken our cash position, increase our leverage or dilute our existing shareholders, as applicable. Furthermore,
a substantial portion of the price paid for these acquisitions is typically for intangible assets. We may be required to pay additional
funds for earn-outs based on achievement of milestones, or may incur contingent liabilities, amortization expenses related to intangible
assets or possible impairment charges related to goodwill or other intangible assets (which has occurred in the past) or become subject
to litigation or other unanticipated events or circumstances relating to the acquisitions, and we may not have, or may not be able to
enforce, adequate remedies in order to protect our Company. Moreover, acquisitions may result in losses, in unwanted results and wasting
valuable resources, time and money.
21
In past years, we have recognized impairments
in the carrying value of goodwill and purchased intangible assets. Additional such charges in the future could negatively affect
our results of operations and shareholders’ equity.
We continue to have a substantial amount of goodwill and purchased
intangible assets on our consolidated balance sheet as a result of historical acquisitions. The carrying value of goodwill represents
the fair value of an acquired business in excess of identifiable assets and liabilities as of the acquisition date. The carrying value
of intangible assets with identifiable useful lives represents the fair value of customer relationships, content, domain names and acquired
technology, among other things, as of the acquisition date, and are amortized based on their economic or useful lives. Goodwill that is
expected to contribute indefinitely to our cash flows is not amortized but must be evaluated for impairment at least annually. If the
carrying value exceeds current fair value as determined based on the discounted future cash flows of the related business, the goodwill
or intangible asset is considered impaired and is reduced to fair value via a non-cash charge to earnings. Events and conditions that
could result in impairment include adverse changes in the regulatory environment, a reduced market capitalization or other factors leading
to reduction in expected long-term growth or profitability. Goodwill impairment analysis and measurement is a process that requires significant
judgment. Our stock price and any control premium are factors affecting the assessment of the fair value of our underlying reporting units
for purposes of performing any goodwill impairment assessment.
We will continue to conduct impairment analyses of our goodwill
as required. Further impairment charges with respect to our goodwill would have a material adverse effect on our results of operations
and shareholders’ equity in future periods.
Shareholders may be able to control us.
As of March 6, 2023, we have one shareholder that beneficially
holds more than 5% of our outstanding shares. See Item 7.A. “Major Shareholders and Related Party Transactions—Major Shareholders”
for more information. To our knowledge, this shareholder is not party to a voting agreement with respect to our shares. However, should
this shareholder or any other shareholders decide to act together, they may have the power to control the outcome of matters submitted
for the vote of shareholders. In addition, such share ownership may make certain transactions more difficult and result in delaying or
preventing a change in control of the Company, unless approved by such shareholder.
Our share price has fluctuated significantly
and could continue to fluctuate significantly.
The market price for our ordinary shares, as well as the prices of shares of other internet
companies, has been volatile. Between January 1, 2022, and March 6, 2023, our share price on Nasdaq has fluctuated from a low of $17.15
to a high of $35.76, and the daily average trading volume in that period was 464,001 shares (and for the period of January 1, 2022, and
until December 31, 2022, was 410,139 shares). The following factors may cause significant fluctuations in the market price of our ordinary
shares:
| • |
negative fluctuations in our quarterly revenue and earnings or those of our competitors; |
| • |
pending sales into the market due to the sale of large blocks of shares, due to, among other reasons, the expiration of any tax-related
or contractual lock–ups with respect to significant amounts of our ordinary shares; |
| • |
shortfalls in our operating results compared to levels forecast by us or securities analysts; |
| • |
changes in our senior management; |
| • |
changes in regulations or in policies of search engine companies or other industry conditions; |
| • |
mergers and acquisitions by us or our competitors; |
| • |
technological innovations; |
| • |
the introduction of new products; |
| • |
the conditions of the securities markets, particularly in the internet and Israeli sectors; and |
| • |
political, economic and other developments in Israel and worldwide. |
22
In addition, share prices of many technology companies in general
and ad-tech companies in particular fluctuate significantly for reasons that may be unrelated or disproportionate to operating results.
The factors discussed above may depress or cause volatility to our share price, regardless of our actual operating results.
Class action litigation due to share price volatility
or other factors could cause us to incur substantial costs and divert our management’s attention and resources.
Historically, public companies that experience periods of volatility
in the market price of their securities and/or engage in substantial transactions are sometimes the target of class action litigation.
Companies in the internet and software industry, such as ours, are particularly vulnerable to this kind of litigation as a result of the
volatility of their stock prices and their regular involvement in transactional activities. In the past, we were named as a defendant
in this type of litigation in connection with our acquisition of ClientConnect, and although this lawsuit was dismissed, in the future
litigation of this sort could result in considerable costs and a diversion of management’s attention and resources.
Future sales of our ordinary shares could reduce
our stock price.
As of March 6, 2023, there was an aggregate of
3,572,969 outstanding options to purchase our ordinary shares and restricted share units (“RSUs”). As these securities vest,
the holders thereof could sell the underlying shares without restrictions, except for the volume limitations under Rule 144 applicable
to our affiliates.
Sales by shareholders of substantial amounts of our ordinary shares,
or the perception that these sales may occur in the future, could materially and adversely affect the market price of our ordinary shares.
Furthermore, the market price of our ordinary shares could drop significantly if our executive officers, directors, or certain large shareholders
sell their shares, or are perceived by the market as intending to sell them.
Exchange rate fluctuations may harm our earnings
and asset base if we are not able to hedge our currency exchange risks effectively.
A significant portion of our costs, primarily personnel expenses,
are incurred in NIS. Inflation in Israel may have the effect of increasing the U.S. dollar cost of our operations in Israel. Further,
whenever the U.S. dollar declines in value in relation to the NIS, it will become more expensive for us to fund our operations in Israel.
A revaluation of one percent of the NIS as compared to the U.S. dollar could impact our income before taxes by approximately $0.5 million.
The exchange rate of the U.S. dollar to the NIS has been volatile in the past, decreasing by approximately 7% and 3% in 2020 and 2021,
respectively and increased by 13% in 2022. As of December 31, 2022, we had a foreign currency net liability of approximately $7.8 million
(which number includes approximately $3.9 million in NIS denominated to the Right of Use liability relates to our offices in Israel),
and our total foreign exchange loss was approximately $0.3 million for the year ended December 31, 2022. To assist us in assessing whether
or not, and how to, hedge risks associated with fluctuations in currency exchange rates, we have contracted a consulting firm proficient
in this area. We may incur losses from unfavorable fluctuations in foreign currency exchange rates.
We do not intend to pay cash dividends in the
foreseeable future.
Although we have paid cash dividends in the past, we have not adopted
a policy regarding the distribution of dividends a in the foreseeable future. Our current policy is to retain future earnings, if any,
for funding growth and reducing our debt. If we do not pay dividends, long-term holders of our shares will generate a return on their
investment only if the market price of our shares appreciates between the date of purchase and the date of sale of our shares.
Any future dividend distributions are subject to the discretion
of our board of directors and will depend on various factors, including our operating results, future earnings, capital requirements,
financial condition, and tax implications of dividend distributions on our income, future prospects and any other factors deemed relevant
by our board of directors. The distribution of dividends is also limited by Israeli law, which permits the distribution of dividends by
an Israeli corporation only out of its retained earnings as defined in Israel’s Companies Law, 5759-1999, or the Companies Law,
provided that there is no reasonable concern that such payment will cause us to fail to meet our current and expected liabilities as they
become due, or otherwise with the court’s approval. See Item 8.A “Consolidated Statements and Other Financial Information—Policy
on Dividend Distribution” for additional information regarding the payment of dividends.
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We are subject to ongoing costs and risks associated
with complying with extensive corporate governance and disclosure requirements.
As an Israeli public company, traded on Nasdaq, we incur significant
legal, accounting and other expenses. We incur costs associated with our public company reporting requirements as well as costs associated
with corporate governance and public disclosure requirements, including requirements under the Sarbanes-Oxley Act of 2002, the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010, the Listing Rules of the Nasdaq Stock Market, regulations of the SEC, the provisions
of the Israeli Securities Law that apply to dual listed companies (companies that are listed on the Tel Aviv Stock Exchange Ltd. (“TASE”)
and another recognized stock exchange located outside of Israel) and the provisions of the Israeli Companies Law 5759-1999 (the “Companies
Law”) that apply to us. We have also contracted an internal auditor and a consultant for implementation of and compliance with the
requirements under the Sarbanes-Oxley Act. Section 404 of the Sarbanes-Oxley Act requires an annual assessment by our management of our
internal control over financial reporting of the effectiveness of these controls as of year-end. In connection with our efforts to comply
with Section 404 and the other applicable provisions of the Sarbanes-Oxley Act, our management and other personnel devote a substantial
amount of time, and we have hired, and may need to hire, additional accounting and financial staff to assure that we comply with these
requirements. We are also required to have our independent registered public accounting firm issue an opinion on the effectiveness of
our internal control over financial reporting on an annual basis. During the evaluation and testing process, if we identify one or more
material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal control over financial
reporting is effective. If we are unable to assert that our internal control over financial reporting is effective, or if our independent
registered public accounting firm is unable to express an opinion on the effectiveness of our internal control over financial reporting,
we could lose investor confidence in the accuracy and completeness of our financial reports, which could cause the price of our common
stock to decline, and we may be subject to investigation or sanctions by the SEC. The additional management attention and costs relating
to compliance with the foregoing requirements could adversely affect our financial results. See Item 5.A “Operating and Financial
Review and Prospects—Operating Results—General and Administrative Expenses” for a discussion of our increased expenses
as a result of being a public company.
If we lose our foreign private issuer status
under U.S. federal securities laws, we would incur additional expenses associated with compliance with the U.S. securities laws applicable
to U.S. domestic issuers.
We are a foreign private issuer, as such term is defined under
U.S. federal securities laws, and, therefore, we are not required to comply with all of the periodic disclosure and current reporting
requirements applicable to U.S. domestic issuers. If we lost our foreign private issuer status, we would be required to comply with the
reporting and other requirements applicable to U.S. domestic issuers, which are more extensive than the requirements for foreign private
issuers and more expensive to comply with.
There can be no assurance that we will not be
a passive foreign investment company (a “PFIC”) for U.S. federal income tax purposes for any taxable year.
In general, a non-U.S. corporation is a PFIC for any taxable year
in which (i) 75% or more of its gross income consists of passive income or (ii) 50% or more of the value of its assets (generally determined
on an average quarterly basis) consists of assets that produce, or are held for the production of, passive income. For purposes of the
above calculations, a non-U.S. corporation that owns (or is treated as owning for U.S. federal income tax purposes), directly or indirectly,
at least 25% by value of the shares or equity interests of another corporation or partnership is treated as if it held its proportionate
share of the assets of the other corporation and received directly its proportionate share of the income of the other corporation. Passive
income generally includes dividends, interest, rents, royalties and certain gains. Cash is generally a passive asset for these purposes.
Goodwill is generally characterized as a non-passive or passive asset based on the nature of the income produced in the activity to which
the goodwill relates.
We believe that we were not a PFIC for our 2022 taxable year. However,
there can be no assurance that we will not be a PFIC for the current or any future taxable year because our PFIC status is an annual determination
that can be made only after the end of the relevant taxable year and will depend on the composition of our income and assets and the value
of our assets from time to time (including the value of our goodwill, which may be determined, in large part, by reference to the market
price of our ordinary shares, which has been, and may continue to be, volatile). Because the value of our goodwill may be determined by
reference to our market capitalization from time to time, and because we hold and may continue to hold significant amounts of cash and
cash equivalents, our risk of being or becoming a PFIC for any taxable year will increase if our market capitalization declines.
24
If we are a PFIC for any taxable year during which a U.S. investor
owns our ordinary shares, the U.S. investor could be subject to adverse U.S. federal income tax consequences. See “Taxation –
U.S. Federal Income Tax Considerations – Passive Foreign Investment Company Rules.”
Our business could be negatively affected as
a result of actions of activist shareholders, and such activism could impact the trading value of our securities.
In recent years, certain Israeli issuers listed on United States
exchanges, including our Company, have been faced with governance-related demands from activist shareholders, as well as unsolicited tender
offers and proxy contests. Although as a foreign private issuer we are not subject to U.S. proxy rules, responding to these types of actions
by activist shareholders could be costly and time-consuming, disrupting our operations and diverting the attention of management and our
employees. Such activities could interfere with our ability to execute our strategic plan. In addition, a proxy contest for the election
of directors at our annual meeting would require us to incur significant legal fees and proxy solicitation expenses and require significant
time and attention by management and our board of directors. The perceived uncertainties due to these potential actions of activist shareholders
also could affect the market price and volatility of our securities.
The rights and responsibilities of our shareholders
are governed by Israeli law and differ in some respects from the rights and responsibilities of shareholders under U.S. law.
We are incorporated under Israeli law. The rights and responsibilities
of holders of our ordinary shares are governed by our memorandum of association, articles of association and by Israeli law. These rights
and responsibilities differ in some respects from the rights and responsibilities of shareholders in typical U.S. corporations. In particular,
a shareholder of an Israeli company has a duty to act in good faith in exercising his or her rights and fulfilling his or her obligations
toward the company and other shareholders and to refrain from abusing his or her power in the company, including, among other things,
in voting at the general meeting of shareholders on certain matters. Israeli law provides that these duties are applicable in shareholder
votes at the general meeting with respect to, among other things, amendments to a company’s articles of association, increases in
a company’s authorized share capital, mergers and actions and transactions involving interests of officers, directors or other interested
parties which require shareholders’ approval. There is little case law available to assist in understanding the implications of
these provisions that govern shareholder behavior.
As a foreign private issuer, whose shares are
listed on Nasdaq, we follow certain home country corporate governance practices instead of certain Nasdaq requirements.
As a foreign private issuer (as such term is defined in Rule 3b-4
under the Exchange Act), whose shares are listed on Nasdaq, we are permitted to follow certain home country corporate governance practices
instead of certain requirements contained in the Nasdaq listing rules. We follow the requirements of the Companies Law in Israel, rather
than comply with the Nasdaq requirements, in certain matters, including with respect to the quorum for shareholder meetings, sending annual
reports to shareholders, and shareholder approval with respect to certain issuances of securities. See Item 16.G. “Corporate Governance”
in this Annual Report on Form 20-F for a more complete discussion of the Nasdaq Listing Rules and the home country practices we follow.
As a foreign private issuer listed on Nasdaq, we may also elect in the future to follow home country practice with regard to other matters
as well. Accordingly, our shareholders may not be afforded the same protection as provided under Nasdaq’s corporate governance rules
to shareholders of U.S. domestic companies.
Provisions of our articles of association and
Israeli law may delay, prevent or make an acquisition of our Company difficult, which could prevent a change of control and, therefore,
depress the price of our shares.
Israeli corporate law regulates mergers, requires tender offers
for acquisitions of shares above specified thresholds, requires special approvals for transactions involving directors, officers or significant
shareholders and regulates other matters that may be relevant to these types of transactions. In addition, our articles of association
contain provisions that may make it more difficult to acquire our Company, such as provisions establishing a staggered board. Furthermore,
Israeli tax considerations may make potential transactions unappealing to us or to some of our shareholders. See Exhibit 2.1 to this annual
report on Form 20-F, which is incorporated by reference into this annual report on Form 20-F, and Item 10.E. “Taxation—Israeli
Taxation” for additional discussion about some anti-takeover effects of Israeli law.
These provisions of Israeli law may delay, prevent or make difficult
an acquisition of our Company, which could prevent a change of control and therefore depress the price of our shares.
25
We must meet the Nasdaq Global Select Market’s
continued listing requirements and comply with the other Nasdaq rules, or we may risk delisting. Delisting could negatively affect
the price of our ordinary shares, which could make it more difficult for us to sell securities in a financing and for you to sell
your ordinary shares.
We are required to meet the continued listing requirements of the
Nasdaq Global Select and comply with the other Nasdaq rules, including those regarding minimum shareholders’ equity, minimum share
price and certain other corporate governance requirements. Delisting of our ordinary shares from the Nasdaq Global Select would cause
us to pursue eligibility for trading on other markets or exchanges, or on the pink sheets. In such case, our shareholders’ ability
to trade, or obtain quotations of the market value of, our ordinary shares would be severely limited because of lower trading volumes
and transaction delays. These factors could contribute to lower prices and larger spreads in the bid and ask prices for our securities.
There can be no assurance that our ordinary shares, if delisted from the Nasdaq Global Select in the future, would be listed on a national
securities exchange or quoted on a national quotation service, the OTCQB or OTC Pink. Delisting from the Nasdaq Global Select Market,
or even the issuance of a notice of potential delisting, would also result in negative publicity, make it more difficult for us to raise
additional capital, adversely affect the market liquidity of our ordinary shares, reduce security analysts’ coverage of us and diminish
investor, supplier and employee confidence. In addition, as a consequence of any such delisting, our share price could be negatively affected
and our shareholders would likely find it more difficult to sell, or to obtain accurate quotations as to the prices of, our ordinary shares.
Our ordinary shares are traded on more than
one market and this may result in price variations.
Our ordinary shares are traded on both the Nasdaq Global Select
Market and on TASE. Trading in our ordinary shares on these markets is affected in different currencies (U.S. dollars on Nasdaq and NIS
on TASE) and at different times (resulting from different time zones, different trading days per week and different public holidays in
the United States and Israel). Consequently, the trading prices of our ordinary shares on these two markets often differ, resulting from
the factors described above as well as differences in exchange rates and from political events and economic conditions in the United States
and Israel. Any decrease in the trading price of our ordinary shares on one of these markets could cause a decrease in the trading price
of our ordinary shares on the other market.
Increasing scrutiny from investors, customers
and other market participants with respect to our Environmental, Social and Governance (“ESG”), policies could negatively
affect the price of our shares or impose additional costs on us.
In recent years, increasing attention has been given to ESG policies
of corporations across all industries, including with respect to climate change and diversity, equity and inclusion matters. We could
fail to achieve, or be perceived to fail to achieve expectations, standards, and regulations on ESG matters as they continue to evolve,
or may be perceived by investors, customers and other market participants to have not responded appropriately to the growing concern for
ESG issues, regardless of whether there is a legal requirement to do so. As a result, we may experience reputational damage and the business,
financial condition and price our company’s shares could be materially and adversely affected.
Our cash, cash equivalents and short-term deposits are subject
to risks that may cause losses and affect the liquidity of these investments.
As of December 31, 2022, we had $429.6 million in cash, cash equivalents and
short-term deposits. We regularly maintain cash, cash equivalent and short-term deposits at third-party financial institutions. We maintain
and invest our cash and cash equivalents based on an investment policy approved by our investment committee of the board and by our board
of directors. Our investment policy set various principles for managing our cash, including the rating level of third-party financial
institutions in which we keep our cash, diversified portfolio and diversified countries of incorporation of the relevant financial institutions.
These deposits and investments are subject to general credit, liquidity, market and interest rate risks. Further, we may be adversely
affected by a crisis in the banking industry. For example, on March 10, 2023, the Federal Deposit Insurance Corporation, took control
and was appointed receiver of Silicon Valley Bank, or SVB. We have not held funds at SVB other than a negligible amount. If banks and
financial institutions enter receivership or become insolvent in the future and a portion of our cash, cash equivalents or short-term
deposits is held in such banks and financial institutions, our ability to access our existing cash, cash equivalents and investments may
be impacted and could have a material adverse effect on our business and financial condition.
Risks Related to Our Technological Environment
Our business and financial performance may be
materially adversely affected by information technology issues, data breaches, cyber-attacks and other similar incidents, insufficient
cyber security and other business disruptions.
Our business is constantly challenged and may be impacted by information technology
issues, data breaches, cyber-attacks and other similar incidents, and other business disruptions experienced by us or our service providers.
Data breaches, cyber-attacks, and other similar incidents, in particular, are a growing and evolving risk, and often are difficult or
impossible to detect for long periods of time or to successfully defend against. Such attacks may include, but are not limited to, malicious
software, computer viruses, ransomware attacks, denial-of-service attacks, social engineering, phishing attacks, worms, insider threats,
human error or malfeasance, attempts to gain unauthorized access to data, and other electronic security breaches that could lead to disruptions
in systems, denial of services, unauthorized release of confidential or otherwise protected information, including personal data, corruption
of data and overloading our servers and systems with communications and data. Data breaches, cyber-attacks and other similar incidents
are increasing in frequency, levels of persistence, sophistication and intensity, are evolving in nature, and are conducted by organized
groups and individuals with a wide range of motives and expertise, including organized criminal groups, “hacktivists,” terrorists,
nation states, nation state-supported actors, and others. Unidentified groups have hacked numerous internet websites and servers, including
our own, for various reasons, political, commercial and other. Any such incident, or any failure to make adequate or timely disclosures
to the public, regulators, or law enforcement agencies following any such incident, could subject us or our service providers to substantial
system downtimes, operational delays, other detrimental impacts on our operations or ability to provide products and services to our customers,
the compromising of confidential or otherwise protected information, including personal data, the destruction or corruption of data, other
manipulation or improper use of our systems and networks, violations of applicable privacy, data collection and protection and cybersecurity
laws and regulations or notification obligations, legal claims, regulatory scrutiny or enforcement actions, financial losses from remedial
actions, loss of business or potential liability, and/or damage to our reputation, any of which could have a material adverse effect on
our cash flows, competitive position, financial condition and results of operations.
26
Although such attacks have caused certain difficulties, they have
not had, to date, a material adverse effect on our business, financial condition or results of operations. However, given the unpredictability
of the timing, nature and scope of such incidents, and because techniques used to obtain unauthorized access or sabotage systems change
frequently and generally are not identified until they are launched against a target, there can be no assurance that such attacks can
be prevented, that such an incident is not occurring currently without our knowledge, or that any such incidents will not have a material
adverse effect on us in the future. We may not be able to anticipate data breaches, cyber-attacks or other similar incidents, detect or
react to such incidents in a timely manner, implement effective preventive measures against such incidents, or adequately remediate any
such incident.
As cybersecurity threats continue to evolve, we expect to continue
to expend significant additional resources to continue to maintain, modify or enhance our protective measures or to investigate or remediate
any information security vulnerabilities, data breaches, cyber-attacks or other similar incidents. However, such measures as well as our
response process, may not be adequate, may fail to identify or accurately assess the severity of an incident, may not respond quickly
enough, or may fail to sufficiently remediate an incident. As a result, we may suffer significant legal, reputational, or financial exposure,
which could harm our business, financial condition, and operating results.
While we generally perform cybersecurity diligence on our key service
providers, because we do not control our service providers and our ability to monitor their cybersecurity is limited, we cannot ensure
the cybersecurity measures they take will be sufficient to protect any information we share with them. Due to applicable laws and regulations
or contractual obligations, we may be held responsible for data breaches, cyber-attacks or other similar incidents attributed to our service
providers as they relate to the data we share with them. In addition, if we suffer a highly publicized data breach, cyber-attack or other
similar incident, even if our platforms and solutions perform effectively, such an incident could have an adverse effect and cause us
to suffer reputational harm, lose existing commercial relationships and customers or deter existing customers from purchasing additional
solutions and prevent new customers from purchasing our solutions.
We cannot ensure that any limitations of liability provisions in
our agreements with customers, service providers and other third parties with which we do business would be enforceable or adequate or
would otherwise protect us from any liabilities or damages with respect to any particular claim in connection with a data breach, cyber-attack
or other similar incident. Additionally, we cannot be certain that our insurance coverage will be adequate for cybersecurity liabilities
actually incurred, that insurance will continue to be available to us on economically reasonable terms, or at all, or that our insurer
will not deny coverage as to any future claim.
We have contractual and legal obligations to notify relevant stakeholders
of security breaches. Most jurisdictions have enacted laws requiring companies to notify individuals, regulatory authorities and others
of security breaches involving certain types of data. In addition, our agreements with certain customers and third-party partners
may require us to notify them in the event of a security breach. Such mandatory disclosures are costly, could lead to negative publicity
and may cause our customers to lose confidence in the effectiveness of our security measures. If we fail to make such notification within
the mandatory time frames, we may be subject to penalties and legal actions.
A security breach could lead to claims by our customers, their
users or other relevant parties that we have failed to comply with contractual obligations to implement specified security measures. As
a result, we could be subject to legal action or our customers could end their relationships with us. Pursuant to the California Consumer
Privacy Act, or the “CCPA” and the California Privacy Rights Act, or the “CPRA”, if we experience a security
breach, California consumers could bring a private right of action claiming the breach was the result of our violation of the duty to
implement and maintain reasonable security procedures and practices, which could be costly and cause reputational harm. Similarly, there
is an increasing risk of class actions in the United Kingdom and Europe. Security breaches could also result in enforcement actions by
government or regulatory authorities alleging that we have violated laws that require us to maintain reasonable security measures and
comply with mandatory disclosure requirements.
27
If we fail to detect or prevent suspicious traffic
or other invalid traffic or engagement with our ads, or otherwise prevent against malware intrusions, we could lose the confidence
of our advertisers, damage our reputation and be responsible to make-good or refund demands, which would cause our business to suffer.
Our business relies on delivering positive results to our advertisers
and their consumers. We are exposed to the risk of fraudulent or suspicious impressions, clicks or conversions that advertisers may
perceive as undesirable. Such fraudulent activities may occur when a software program, known as a bot, spider or crawler, intentionally
simulates user activity causing impressions, ad engagements or clicks to be counted as real users. Such malicious software programs can
run on single machines or on tens of thousands of machines, making them difficult to detect and filter.
We implement and use proprietary and third-party technologies to
identify fraudulent or suspicious impressions, clicks or conversions. Despite our efforts, it can be difficult to detect fraudulent suspicious
activity for different reasons. If fraudulent or other malicious activity is perpetrated by others, and we are unable to detect and prevent
it, the affected advertisers may experience or perceive a reduced return on their investment. High levels of invalid or fraudulent activity
could lead to dissatisfaction with our advertising services, refusals to pay, refund or make-good demands or withdrawal of future business.
Any of these occurrences could damage our brand and lead to a loss of our revenue.
A loss of our technology systems or of the services
of our technology vendors could adversely affect execution of our business strategy.
The availability of our products and services and fulfillment of
our customer contracts depend on the continuing operation of our information technology and communications systems. Our systems are vulnerable
to damage, interference, or interruption from modifications or upgrades, terrorist attacks, natural disasters or pandemics (including
COVID-19), the effects of climate change (such as sea level rise, drought, flooding, wildfires, and increased storm severity), power loss,
telecommunications failures, computer viruses, ransomware attacks, computer denial of service attacks, phishing schemes, or other attempts
to harm or access our systems. Some of our systems are not fully redundant, and disaster recovery planning cannot account for all eventualities.
Additionally, should some of our technology vendors terminate their
relationship with us, our ability to continue the development of some of our products could be adversely affected, until such time that
we find adequate replacement for these vendors, or until such time that we can continue the development on our own.
We may not be able to enhance our platforms
and Solutions to keep pace with technological and market developments in our evolving industry.
To keep pace with technological developments, satisfy increasing
developer requirements, maintain the attractiveness and competitiveness of our advertising solutions and ensure compatibility with evolving
industry standards, we will need to regularly enhance our platform and solutions as well as develop and introduce new services on a timely
basis. We also must update our software to reflect changes in advertising networks’ application programming interfaces (“APIs”),
technological integration, data security and terms of use. The success of any enhancement or new solution depends on several factors,
including timely completion, adequate quality testing, appropriate introduction and market acceptance. Our inability, for technological,
business or other reasons, to timely enhance, develop, introduce and deliver compelling advertising services in response to changing market
conditions and technologies or evolving expectations of advertisers or consumers could hurt our ability to grow our advertising business.
Our products operate in a variety of computer
and device configurations and could contain undetected errors or defects that could result in product failures, lost revenue and
loss of market share.
Our software and advertising products may contain undetected errors,
failures or defects, especially when the products are first introduced or when new versions are released. Our customers’ computer
and other device environments are often characterized by a wide variety of standard and non-standard configurations that make pre-release
testing for programming or compatibility errors very difficult and time-consuming. As a result, there could be errors or failures in our
products. In addition, despite testing by us and beta testing by some of our users, errors, failures or bugs may not be found in new products
or releases until after commencement of commercial sales and distribution. In the past, we have discovered software errors, failures and
defects in certain of our product offerings after their full introduction and have experienced delayed or lost revenue during the period
required to correct these errors.
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Errors, failures or defects in products released by us could result
in negative publicity, product returns, make-goods, refunds, loss of or delay in market acceptance of our products, loss of competitive
position or claims by customers. Alleviating any of these problems could require significant expense and resources and could cause interruptions
to our products.
We depend on third party internet, telecommunication
and hosting providers to operate our platforms, websites and services. Temporary failure of these services, including catastrophic
or technological interruptions, would materially reduce our revenue and damage our reputation, and securing alternate sources for
these services could significantly increase our expenses and be difficult to obtain.
Our products operation as well as our internal conduct and daily
management are supported by third-party internet, hosting, SaaS services, and telecommunication providers. Such providers may experience
disruptions, which would reduce our revenue and increase our costs. We own servers located in Israel, Europe and the United States and
we also rent the services of thousands of servers located around the world. Our servers include mainly web servers, application servers,
data collection servers, data storage servers, data processing servers, mail servers and database servers. While we believe that there
are many alternative providers of hosting and other communication services available to us, the costs associated with any transition to
a new service provider could be substantial. Furthermore, although we maintain back-up systems for most aspects of our operations, we
could still experience deterioration in performance or interruption in our systems, delays, and loss of critical data and registered users
and revenue, in addition, the services of such providers could be vulnerable to damage or interruption from earthquakes, hurricanes, floods,
fires, cybersecurity attacks, terrorist attacks, power losses, telecommunications failures and similar events. The occurrence of a natural
disaster or an act of terrorism, a decision to close such providers facilities without adequate notice, or other unanticipated problems
could result in lengthy interruptions to our services. The facilities of such providers also could be subject to break-ins, computer viruses,
sabotage, intentional acts of vandalism and other misconduct.
Our systems are also not fully redundant, and our disaster recovery
planning may not be sufficient for all eventualities. In addition, we may have inadequate insurance coverage to compensate us for losses
from a major interruption. Furthermore, interruptions in the services of our providers or their inability to meet the service capacity
we require, could result in interruptions in the availability or functionality of our solutions or materially impede our ability to attract
and onboard new customers to services and to maintain relationships with current customers. Difficulties of this kind could damage our
reputation, be expensive to remedy and curtail our growth.
The introduction of new browsers and other popular
software products may materially adversely affect user engagement with our search services.
Users typically install new software and update their existing
software as new or updated software is introduced online by third-party developers. In addition, when a user purchases a new computing
device or installs a new internet browser, it generally uses the internet search services that are typically pre-installed on the new
device or internet browser. Our products are distributed online and are usually not pre-installed on computing devices. Further, as many
software vendors that distribute their solutions online also offer search services alongside their primary software product, users often
replace our search services with those provided by these vendors while installing new software or updating existing software. After users
have installed search solutions offered by us, any event that results in a significant number of our users changing or upgrading their
internet browsers could result in the failure to generate the revenue that we anticipate from our users and result in a decline in our
user base. Should we not be able to timely respond to such changes or in the event that the search solutions offered by vendors would
offer better user experience than the one offered by us, this could have an adverse effect on our business, financial condition and our
results of operations. Finally, although we constantly monitor the compatibility of our internet search services and related solutions
with such new versions and upgrades, we may not be able to make the required adjustments to ensure constant availability and compatibility
of such solutions.
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Risks Related to Data Protection Regulations
Regulations, legislation or
self-regulation relating to privacy, data collection and protection, e-commerce and internet advertising and uncertainties regarding
the application or interpretation of existing or newly adopted laws and regulations could harm our business and subject us to significant
legal liability for non-compliance.
Our business is conducted through the internet and therefore, among
other things, we are subject to the laws and regulations that apply to e-commerce and online businesses around the world. These laws and
regulations are becoming more prevalent in the United States, Europe, Israel, Canada and elsewhere and may impede the growth of the internet
and consequently our services. These regulations and laws may cover privacy, data collection and protection, location of data storage
and processing, cybersecurity, e-commerce, content, use of “cookies,” access changes, “net neutrality,” pricing,
advertising, distribution of “spam” copyright and other intellectual property, libel, marketing, distribution of products,
protection of minors, consumer protection, taxation and online payment services.
Many areas of the law affecting the internet remain largely unsettled,
even in areas where there has been some legislative action.
For example, we collect, use, maintain and otherwise process certain
data about our customers (including, without limitation, customers’ clients or users), partners, candidates and employees, consultants,
leads and consumers. Our ability to collect, use, maintain or otherwise process personal data has been, and could be further, restricted
by existing and new laws and regulations relating to privacy and data collection and protection, including the EU General Data Protection
Regulation 2016/679 (the “GDPR”), the CCPA as revised by the CPRA, the Israeli Privacy Protection Law, 1981 and the regulations
thereunder (“Israeli Privacy Law”), as well as other laws. These laws and regulations generally define personal data to include
location data and online identifiers, which are commonly used and collected parameters in digital advertising and, among other things,
impose stringent user consent requirements and permit data subjects to request we discontinue using certain data. In addition, some countries
are considering or have enacted legislation requiring local storage and processing of data that could increase the cost and complexity
of delivering our services.
Additionally, the uncertainty created by these laws and regulations
can be compounded when services hosted in one jurisdiction are directed at users in another jurisdiction. The GDPR has a wide territorial
scope and contains significant penalties for non-compliance. The GDPR, among other things, imposes requirements to provide detailed and
transparent disclosures about how personal data is collected and processed, grants rights for data subjects to access, delete or object
to the processing of their personal data, provides for a mandatory breach notification to supervisory authorities (and in certain cases,
affected individuals) of certain data breaches, sets limitations on the retention of personal data and outlines significant documentary
requirements to demonstrate compliance through policies, procedures, training and audits. Additionally, supervisory authorities in
the member states have some flexibility when implementing European Directives and certain aspects of the GDPR, which can lead to diverging
national rules. European supervisory authorities have been very active in terms of enforcing data protection rules, including with respect
to cookie-related matters. In the U.S., regulation of cookies and similar technologies, and any decline of cookies or similar online tracking
technologies as a means to identify and potentially target individuals, may lead to broader restrictions and impairments on our business
activities and negatively impact our efforts to understand users. While we are taking measures to shift away from third-party cookies
based solutions, by using our proprietary cookieless solution, SORT® which enables advertisers to reach their audience in real time
without storing any personally identifiable data, we still rely on cookies based solutions.
Most of our products and services are provided without a direct
relationships with users, therefore, we rely on our customers or publishers to establish a legal basis (for example, to obtain the consent
from the user) on our behalf to process their data, and to implement any notice or choice mechanisms required under applicable privacy
laws, but if our customers do not follow this process (and in any event, as the legal requirements in this area continue to evolve and
develop), we could be subject to liability.
Recent decisions by the Court of Justice of the
European Union and recent guidance from European data protection authorities may further restrict our use of the IAB Transparency Platform
which our solutions rely on as well as limit the use of online tracking technologies which we rely on for protecting against fraud and
personalization of the feeds and ads. In addition, the U.K.’s General Data Protection Regulation (“U.K. GDPR”), impose
robust obligations for the collection, control, use, sharing, disclosure and other processing of personal data and contains documentation
and accountability requirements for data protection compliance. The U.K. GDPR exposes us to two parallel regimes (GDPR and U.K. GDPR),
each of which authorizes similar fines and may subject us to increased compliance risk based on differing, and potentially inconsistent
or conflicting, interpretation and enforcement by regulators and authorities (particularly, if the laws are amended in the future in divergent
ways). Failure to comply with these obligations can result in significant fines and other liability under applicable law. In particular,
under the GDPR, fines of up to EUR 20 million (or GBP 17.5 million under the U.K. GDPR) or up to 4% of the annual global revenue of the
noncompliant company, whichever is greater, could be imposed for violations of certain of the GDPR’s requirements. The GDPR requirements
apply not only to third-party transactions, but also to transfers of information between us and our subsidiaries, including employee information.
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With respect to transfers of personal data from the European Economic
Area (“EEA”), on June 28, 2021, the European Commission issued an adequacy decision in respect of the U.K.’s data protection
framework, enabling data transfers from EU member states to the U.K. to continue without requiring organizations to put in place contractual
or other measures in order to lawfully transfer personal data between the territories. While it is intended to last for at least four
years, the European Commission may unilaterally revoke the adequacy decision at any point, and if this occurs, it could lead to additional
costs and increase our overall risk exposure. Additionally, the European Commission is currently re-examining its Decision 2011/61/EU
regarding the adequacy of Israel, in light of the GDPR and developments in Israeli privacy legislation, which could result in revoking
Israel’s adequacy status for purposes of transfers of personal data from the EEA to Israel. The outcome of this examination may
also affect the U.K.’s approach on the adequacy of Israeli law with respect to the U.K. GDPR, which could require us to further
review and amend the lawful mechanisms by which we make and/or receive personal data transfers from the U.K. It is unclear how U.K. data
protection laws or regulations will develop in the medium to longer term.
Data privacy legislation restricts the cross-border transfer of personal data. Specifically,
the GDPR and other EEA and U.K. GDPR generally prohibit the transfer of personal data from the Europe and U.K., to the United States and
most other countries unless the transfer is to an entity established in a country deemed to provide adequate protection (such as Israel
or the U.K.) or the parties to the transfer have implemented specific safeguards to protect the transferred personal data. Where we transfer
personal data outside the EEA to a country that is not deemed to be “adequate”, we take steps to comply with applicable laws,
such as through implementing the European Commission’s standard contractual clauses (“SCCs”), that have been updated
on June 4 2021, and the shift was completed by December 27, 2022. The European Data Protection Board (“EDPB”) released a comment
on the supplementary measures that companies may use to ensure an 'EU level' of data protection - such as conducting impact assessment
for data transfers, and assess the use of SCCs on a case-by-case basis, taking into account the legal regime applicable in the destination
country, and in particular applicable surveillance laws and rights of individuals as well as consider additional technical and organizational
measures and/or contractual provisions that may be needed to be put in place. On June 4, 2021, the European Commission issued a new set
of SCCs under the GDPR for data transfers. These modernized SCCs replace the three sets of SCCs that were adopted under the previous Data
Protection Directive 95/46. Since September 27, 2021, it is no longer possible to conclude contracts incorporating these earlier sets
of SCCs. Until December 27, 2022, companies continued to rely on those earlier SCCs for contracts that were concluded before September
27, 2021. In addition, on February 2, 2022, the Secretary of State of the U.K. laid before the Parliament the international data transfer
agreement (IDTA) and the international data transfer addendum to the European Commission’s standard contractual clauses for international
data transfers (Addendum), which came into force on March 21, 2022, following Parliamentary approval. Contracts involving data processing
which are based on the old EU SCCs and concluded on or before September 21, 2022, will continue to provide appropriate safeguards under
the U.K. GDPR until March 21, 2024. In some jurisdictions like the EU, UK and Israel, the law and guidance on data transfers is rapidly
developing and recent developments will require us to review and may require us to amend or supplement the legal mechanisms by which we
make and/or receive personal data transfers.
Similarly, there have been laws and regulations adopted throughout
the United States and in Israel that impose new obligations in areas such as privacy, in particular protection of personal information
and implementing adequate cybersecurity measures to protect such information. In the United States, privacy and data security laws are
also complex and changing rapidly, these laws are not consistent, and compliance with them in the event of a widespread data breach is
complex and costly. Both federal and state legislation also govern the collection, use and other processing of personal data, and the
advertising industry has been subject to review by the Federal Trade Commission (the “FTC”), U.S. Congress, and individual
states. For example, the CCPA provides data privacy rights for California residents and operational requirements for covered companies.
Among other things, companies covered by the CCPA must provide new disclosures to California residents and afford such residents the ability
to opt-out of certain sales of personal information. The CCPA provides for civil penalties for violations, as well as a private right
of action for data breaches that is expected to increase data breach litigation. In addition, the CPRA, which took effect in January 2023,
has expanded the rights granted under the CCPA and impose additional notice and opt out-obligations, including an obligation to provide
California residents with the ability to opt-out to the processing of personal information for purposes of behavioral advertising, adds
restrictions on the “sale” or “share” of personal information (which it defines broadly under the CCPA), and creates
new data privacy rights for California residents and carries significant enforcement penalties for non-compliance. Additional U.S. states
have implemented, or are in the process of implementing, similar new laws or regulation (for example, the Virginia Consumer Data Protection
Act (“VCDPA”) that has entered into effect on January 1, 2023 and the Colorado Privacy Act (“CPA”) which will
go into effect on July 1, 2023) that impose new privacy rights and obligations which resembles the CCPA and CPRA. Further, laws in all
50 states require businesses to provide notice to consumers whose personal information has been disclosed as a result of a data breach.
More generally, some observers have noted that the CCPA, CPRA, VCDPA, and CPA could mark the beginning of a trend toward more stringent
United States federal privacy legislation, which could increase our potential liability and adversely affect our business.
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The CCPA, and eventually the CPRA, VCDPA, CPA, and other legal
and regulatory changes, are making it easier for certain individuals to opt-out of having their personal data processed and disclosed
to third parties through various opt-out mechanisms, which could result in an increase to our operational costs to ensure compliance with
such legal and regulatory changes. In recent years, there has also been an increase in attention to and regulation of privacy and data
collection and protection across the globe, including in the United States with the increasingly active approach of the FTC to enforcing
data privacy under the Section 5 of the FTC Act pursuant to the “Unfair and Deceptive Acts and Practices” framework. Similar
to the GDPR, the CCPA, and eventually the CPRA, VCDPA, CPA, and other legal and regulatory changes, will require us to devote resources
and incur additional costs associated with compliance, as well as impose additional restrictions on our and our partners’ operations.
In addition, failure to comply with the Israeli Privacy Law, as
well as the guidelines of the Israeli Privacy Protection Authority, may expose us to administrative fines, civil claims (including class
actions) and, in certain cases, criminal liability. Current pending amendment to the Israeli Privacy Protection Law, 1981 is expected
to enhance fines and sanctions for breaching the Israeli Privacy Law and to strengthen the enforcement capacity of the Israeli Privacy
Protection Authority. There have also been privacy bills enacted in other countries around the world, such as Brazil, which have introduced
new or expanded privacy requirements and we expect that privacy legislation will continue to evolve in the coming years. Therefore, it
is difficult to determine whether and how such existing and laws and regulations will apply to and impact the internet and our business.
Further, any failure or perceived failure to comply with our public
privacy policies and other public statements about privacy and cybersecurity could potentially subject us to regulatory investigations,
enforcement or legal actions, and harm to our reputation and, if such policies or statements are found to be deceptive, unfair or misrepresentative
of our actual practices, fines, monetary or other penalties, and other damage to our business and results and results of operations.
Although we strive to comply with applicable laws and regulations
the evolving global standards regarding privacy and to inform our customers of our business practices prior to any installations of our
product and use of our services, it is possible that these laws may be interpreted and applied in a manner that is inconsistent with our
data collection, use, preservation and other processing practices or that it may be argued that our practices do not comply with certain
countries’ privacy and data collection and protection laws and regulations. Due to rapid changes in technology and the inconsistent
interpretations of privacy and data collection and protection laws and regulations, we may be required to materially change the way we
do business. The challenges imposed by the ongoing need to remain compliant with such laws and regulations, as well the need to implement
any changes required based on newly introduced laws and regulations, may slow our growth, and if we are not able to cope with these challenges
as effectively as other companies, we will be competitively disadvantaged. Any limitation on our ability to collect and utilize data,
including personal data, would make it more difficult for us to be able to optimize ad placement for the benefit of our advertisers and
publishers, which could render our solutions less valuable and potentially result in loss of clients and a decline in revenue. For example,
we may need to adapt our advertising solution to a “cookie-less” environment and introduce alternative solutions which may
not provide the targeting capabilities provided by cookies. In addition, we may be required to implement physical, administrative and
technological security measures that differ from those we have now, such as different data access controls or encryption technology. Further,
we use cloud-based computing, which is not without substantial risk, particularly at a time when businesses of almost every kind are finding
themselves subject to an ever-expanding range of privacy, data collection and processing and cybersecurity laws and regulations, document
retention requirements, and other standards of accountability. Compliance with such existing and new laws and regulations can be costly
and can delay, or impede the development of new products, any and failure or perceived failure to comply with such laws and regulations
could result in negative publicity, increase our operating costs, require significant management time and attention and subject us to
inquiries or investigations, litigation (including class actions), claims, or other remedies, including penalties, fines, sanctions and
criminal and civil liabilities, or demands or orders that we modify or cease existing business practices, each of which could materially
affect our operating results and our business. Moreover, concerns about our collection, use, sharing, handling and other processing of
data or other privacy related matters, even if unfounded, could harm our reputation and operating results. For more information regarding
government regulations to which we are subject, see Item 4.B. “Business Overview— Government Regulation.”
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If one or more states or countries determine
that we are required to collect sales, use, or other taxes on the services that we sell, this may result in liability to pay sales,
use, and other taxes (plus interest and penalties) on prior sales and a decrease in our future sales revenue.
While in some states we are subject to sales tax, in general, the
digital advertising business has not traditionally paid sales tax. However, a successful assertion by one or more cities, states or countries
that digital advertising services should be subject to such taxes or that we are not providing digital advertising services, but other
services and should collect sales, use, or other taxes on the sale of our services, or that we have failed to do so where required in
the past, could result in a decrease in future sales and/or substantial tax liabilities for past sales. Each state and country has different
rules and regulations governing sales, use, and other taxes, and these rules and regulations are subject to varying interpretations that
may change over time.
Following a US Supreme Court decision regarding the rights of individual
states to tax out of state suppliers, certain states have adapted their statutes to expand taxation on out-of-state suppliers of goods
and services. Some states are also pursuing legislative expansion of the scope of goods and services that are subject to sales and similar
taxes as well as the circumstances in which a vendor of goods and services must collect such taxes. Furthermore, legislative proposals
have been introduced in Congress that would provide states with additional authority to impose such taxes. Accordingly, it is possible
that either federal or state legislative changes may require us to collect additional sales and similar taxes from our clients in the
future which could impact our future sales, and therefore could result in a material adverse effect on our revenue.
For example, in February 2021, the State of Maryland’s House
of Delegates and Senate approved legislation to tax digital advertising revenue, which is currently under review by the relevant courts.
Similar bills have been introduced in several other states.
Certain countries in the European Union and elsewhere have recently
adopted taxation on digital services including digital advertising, in various forms, such enacted and proposed taxes may have an impact
on us.
Under current Israeli, U.S., U.K.
and Ukrainian law, we may not be able to enforce non-competition and non-solicitation covenants
and, therefore, we may be unable to prevent our competitors from benefiting from the expertise of some of our former employees and/or
vendors, whether current or former.
We have entered into non-competition and non-solicitation agreements
with many of our employees and vendors. These agreements prohibit our employees and vendors, if they terminate their relationship with
us, from competing directly with us, working for our competitors, or soliciting current employees away from us for a limited period. Under
current Israeli, U.S., U.K. and Ukrainian law, we may be unable to enforce these agreements, in whole or in part, and it may be difficult
for us to restrict our competitors from gaining the expertise that our former employees gained while working for us. For example, Israeli
courts have required employers seeking to enforce non-compete undertakings of a former employee to demonstrate that the competitive activities
of the former employee will harm one of a limited number of material interests of the employer which have been recognized by the courts,
such as the secrecy of a company’s confidential commercial information or its intellectual property. If we cannot demonstrate that
harm would be caused to us, we may be unable to prevent our competitors from benefiting from the expertise of our former employees.
Risks Related to our Intellectual Property
Our proprietary information and intellectual
property may not be adequately protected and thus our technology may be unlawfully copied by or disclosed to other third parties.
We regard the protection of our proprietary information and technology
and other intellectual property as critical to our success. We strive to protect our intellectual property rights by relying on contractual
restrictions, trade secret law and other common law rights, as well as federal and international intellectual property registrations and
the laws on which these registrations are based. However, the technology we use and incorporate into our offerings may not be adequately
protected by these means.
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We generally enter into confidentiality and invention assignment
agreements with our employees and contractors, and confidentiality agreements with parties with whom we conduct business, in order to
limit access to, and the disclosure and use of, our proprietary information. However, we may not be successful in executing these agreements
with every party who has access to our confidential information or contributes to the development of our intellectual property. In addition,
those agreements that we do execute may be breached, and we may not have adequate remedies for any such breach. Further, these contractual
arrangements and the other steps we have taken to protect our intellectual property may not prevent the misappropriation of our intellectual
property and/or trade secrets, or deter independent development of similar intellectual property by others.
In addition, there is no assurance that any existing or future
patents or trademarks will afford adequate protection against competitors and similar technologies. Our intellectual property rights may
be challenged, invalidated, or circumvented by others or invalidated through administrative process or litigation. Effective trademark
and patent protections are expensive to develop and maintain, as are the costs of defending our rights. Further, we cannot assure you
that competitors will not infringe our patents or trademarks, or that we will have adequate resources to enforce our rights.
Third party claims of infringement or other
claims against us could require us to redesign our products, seek licenses, or engage in costly intellectual property litigation,
which could adversely affect our financial position and our ability to execute our business strategy.
Given the competitive and technology-driven nature of the digital
advertising industry, companies within our industry often design and use similar products and services, which may lead to claims of intellectual
property infringement and potentially litigation. We have been, and in the future may be, the subject of claims that our solutions and
underlying technology infringe or violate the intellectual property rights of others. Regardless of whether such claims have any merit,
these claims are time-consuming and costly to evaluate and defend, and the outcome of any litigation is inherently uncertain. Our business
may suffer if we are unable to resolve infringement or misappropriation claims without major financial expenditures or adverse consequences.
If it appears necessary or desirable, we may seek to obtain licenses
to use intellectual property rights that we are allegedly infringing, may infringe or desire to use. Although holders of these types of
intellectual property rights often offer these licenses, we cannot assure you that licenses will be offered or that the terms of any offered
licenses will be acceptable to us. Our failure to obtain a license for key intellectual property rights such as these from a third party
for technology or content, sound, or graphic used by us could cause us to incur substantial liabilities and to suspend the development
and sale of our products. Alternatively, we could be required to expend significant resources to re-design our products or develop non-infringing
technology. If we are unable to re-design our products or develop non-infringing technology, our revenue could decrease and we may not
be able to execute our business strategy.
We may also become involved in litigation in connection with the
brand name rights associated with our Company name or the names of our products. We do not know whether others will assert that our Company
name or any of our brands name infringe(s) their trademark rights. In addition, names we choose for our products may be alleged to infringe
names held by others. If we have to change the name of our Company or products, we may experience a loss in goodwill associated with our
brand name, customer confusion and a loss of sales. Any lawsuit, regardless of its merit, would likely be time-consuming, expensive to
resolve, and require additional management time and attention.
We may become subject to claims for remuneration
or royalties for assigned service invention rights by our employees, which could result in litigation and adversely affect our business.
A significant portion of our intellectual property has been developed
by our employees in the course of their employment for us. Under the Israeli Patent Law, 5727-1967, or the Patent Law, inventions conceived
by an employee in the course and as a result of or arising from his or her employment with a company are regarded as “service inventions,”
which belong to the employer, absent a specific agreement between the employee and employer giving the employee service invention rights.
The Patent Law also provides that if there is no such agreement between an employer and an employee, the Israeli Compensation and Royalties
Committee, or the Committee, a body constituted under the Patent Law, shall determine whether the employee is entitled to remuneration
for his inventions. Case law clarifies that the right to receive consideration for “service inventions” can be waived by the
employee and that in certain circumstances, such waiver does not necessarily have to be explicit. The Committee will examine, on a case-by-case
basis, the general contractual framework between the parties, using interpretation rules of the general Israeli contract laws. Further,
the Committee has not yet determined one specific formula for calculating this remuneration (but rather uses the criteria specified in
the Patent Law). Although we generally enter into assignment-of-invention agreements with our employees pursuant to which such individuals
assign to us all rights to any inventions created in the scope of their employment or engagement with us, we may face claims demanding
remuneration in consideration for assigned inventions. As a consequence of such claims, we could be required to pay additional remuneration
or royalties to our current and/or former employees, or be forced to litigate such claims, which could negatively affect our business.
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We use certain “open source” software
tools that may be subject to intellectual property infringement claims or that may subject our derivative works or products to unintended
consequences, possibly impairing our product development plans, interfering with our ability to support our clients or requiring
us to allow access to the source code of our products or necessitating that we pay licensing fees.
Certain of our products contain open source code and we may use
more open source code in the future. In addition, certain third party software that we embed in our products contains open source code.
Open source code is code that is covered by a license agreement that permits the user to liberally use, copy, modify and distribute the
software without cost, provided that users and modifiers abide by certain licensing requirements. The original developers of the open
source code provide no warranties on such code.
As a result of the use of open source software, we could be subject
to suits by parties claiming ownership of what they believe to be their proprietary code or we may incur expenses in defending claims
alleging non-compliance with certain open source code license terms. In addition, third party licensors do not provide intellectual property
protection with respect to the open source components of their products, and we may be unable to be indemnified by such third-party licensors
in the event that we or our customers are held liable in respect of the open source software contained in such third party software. If
we are not successful in defending against any such claims that may arise, we may be subject to injunctions and/or monetary damages or
be required to remove the open source code from our products. Such events could disrupt our operations and the sales of our products,
which would negatively impact our revenue and cash flow.
Moreover, under certain conditions, the use of open source code
to create derivative code may obligate us to make the resulting derivative code available to others at no cost. The circumstances under
which our use of open source code would compel us to offer derivative code at no cost are subject to varying interpretations. If we are
required to publicly disclose the source code for such derivative products or to license our derivative products that use an open source
license, our previously proprietary software products may be available to others without charge. If this happens, our customers and our
competitors may have access to our products without cost to them which could harm our business. Certain open source licenses require as
a condition to use, modification and/or distribution of such open source that proprietary software incorporated into, derived from or
distributed with such open source be disclosed or distributed in source code form, be licensed for the purpose of making derivative works,
or be redistributable at no charge. The foregoing may under certain conditions be interpreted to apply to our software, depending upon
the use of the open source and the interpretation of the applicable open source licenses. The use of open source code may ultimately subject
some of our products to unintended conditions so that we are required to take remedial action that may divert resources away from our
development efforts.
Risks Related to the Geographical Location
of our Operations
Our business is significantly reliant on the
North American market. Any material adverse change in that market could have a material adverse effect on our results of operations.
Our revenue have been concentrated within the North American market,
accounting for approximately 88% of our revenue for 2022. A significant reduction in the revenue generated in such market, whether as
a result of a recession that causes a reduction in advertising expenditures generally or otherwise, which causes a decrease in our North
American revenue, could have a material adverse effect on our results of operations.
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Our business may be materially affected by changes
to fiscal and tax policies. Potentially negative or unexpected tax consequences of these policies, or the uncertainty surrounding
their potential effects, could adversely affect our results of operations and share price.
We operate in a global market and are subject to tax in Israel
and other jurisdictions. Our tax expenses may be affected by changes in tax laws, international tax treaties, international tax guidelines
(such as the Base Erosion and Profit Shifting project of the OECD’s Inclusive Framework (“BEPS”)).
The members of the OECD’s Inclusive Framework on BEPS have
agreed in October 2021 on certain recommendations, informally known as BEPS 2.0 or Pillar Two, which aim to modify international taxation
norms with the introduction of a 15% minimum tax applicable to in-scope multinational enterprises (with revenue in excess of Euro 750
million). Certain countries and the EU have already published proposed legislation to implement the recommendations which are expected
to come into effect starting on 1.1.2024. Israel is one of the 136 jurisdictions that has agreed in principle to the adoption of the global
minimum tax rate. Further, the OECD’s Inclusive Framework on BEPS is continuing to make progress with the international taxation
reform known as Pillar One dealing with the allocation of taxing rights, focusing mostly on the digital economy, as multilateral convention
is expected to be delivered in the second half of 2023.
Certain of these changes could have a negative impact on our results
of operations and business. The impact of these changes is uncertain, and may not become evident for some period of time. The uncertainty
surrounding the effect of the reforms on our financial results and business could also weaken confidence among investors in our financial
condition. This could, in turn, have a materially adverse effect on the price of our ordinary shares.
Our international operations involve special
risks that could increase our expenses, adversely affect our operating results and require increased time and attention of our management.
A large portion of our operations are performed from outside the
United States. In addition, we derive and expect to continue to derive a portion of our revenue from users outside the United States.
Our international operations and sales are subject to a number of inherent risks, including risks with respect to:
| • |
potential loss of proprietary information due to piracy, misappropriation or laws that may be less protective of our intellectual
property rights than those of the United States; |
| • |
costs and delays associated with translating and supporting our products in multiple languages; |
| • |
foreign exchange rate fluctuations and economic instability, such as higher interest rates and inflation, which could make our products
more expensive in those countries; |
| • |
costs of compliance with a variety of laws and regulations; |
| • |
restrictive governmental actions such as trade restrictions and potential trade wars; |
| • |
limitations on the transfer and repatriation of funds and foreign currency exchange restrictions; |
| • |
compliance with different consumer, privacy and data collection and protection laws and regulations, and restrictions on pricing
or discounts; |
| • |
lower levels of adoption or use of the internet and other technologies vital to our business and the lack of appropriate infrastructure
to support widespread internet usage; |
| • |
lower levels of consumer spending on a per capita basis and fewer opportunities for growth in certain foreign market segments compared
to the United States; |
| • |
lower levels of credit card usage and increased payment risk; |
| • |
changes in domestic and international tax regulations; and |
| • |
geopolitical events, including war and terrorism. |
36
Political, economic and military instability
in the Middle East and specifically in Israel may impede our ability to operate and harm our financial results.
We are incorporated under the laws of the State of Israel, where
we also maintain our headquarters. Most of our research and development activities and other significant operations are located in Israel,
and most of our officers and directors are residents of Israel. As a result, political, economic and military conditions affecting Israel
directly influence us. Any major hostilities involving Israel, a full or partial mobilization of the reserve forces of the Israeli army,
the interruption or curtailment of trade or air traffic between Israel and its trading partners, or a significant downturn in the economic
or financial condition of Israel could adversely affect our business, financial condition and results of operations. Since the establishment
of the State of Israel in 1948, a number of armed conflicts have taken place between Israel and its neighboring countries, as well as
terrorist acts committed within Israel by hostile groups or individuals. Escalation in violence among Israel, Hamas, the Palestinian Authority
and other groups, as well as extensive hostilities along Israel’s border with the Gaza Strip have resulted in missiles being fired
from the Gaza Strip into Israel. Additionally, since April 2011, internal conflict in Syria has escalated, and chemical weapons have been
used in the region. Conflicts in the Middle East, including in Egypt and Syria which countries border Israel, have resulted in continued
political uncertainty and violence in the region. This instability and any intervention may lead to deterioration of the political and
economic relationships between the State of Israel and some of the countries in the region, and may have the potential for additional
conflicts in the region. In addition, Iran has threatened to attack Israel and may be developing nuclear weapons. Iran also has a strong
influence among extremist groups in the region, including Hamas in Gaza, Hezbollah in Lebanon and various rebel militia groups in Syria.
Furthermore, amid the increased hostility between the United States and Iran, Iran issued multiple public statements threatening to attack
Israel and the United States. These situations have escalated at various points in recent years and may escalate in the future to more
violent events, which may affect Israel and us. Any armed conflicts, terrorist activities or political instability in the region could
adversely affect business conditions and could harm our results of operations and could make it more difficult for us to raise capital.
Parties with whom we do business have sometimes declined to travel to Israel during periods of heightened unrest or tension, forcing us
to make alternative arrangements when necessary in order to meet our business partners face to face. In addition, the political and security
situation in Israel may result in parties with whom we have agreements involving performance in Israel claiming that they are not obligated
to perform their commitments under those agreements pursuant to force majeure provisions in such agreements.
Our commercial insurance does not cover losses that may occur as
a result of events associated with the security situation in the Middle East. Although the Israeli government currently covers the reinstatement
value of direct damages that are caused by terrorist attacks or acts of war, we cannot assure you that this government coverage will be
maintained or that it will sufficiently cover our potential damages. Losses or damages incurred by us could have a material adverse effect
on our business. Armed conflicts or political instability in the region may negatively affect business conditions and could harm our results
of operations.
Several countries restrict doing business with Israel and Israeli
companies, and additional countries may impose restrictions on doing business with Israel and Israeli companies whether as a result of
hostilities in the region or otherwise. In addition, there have been increased efforts by activists to cause companies and consumers to
boycott Israeli goods based on Israeli government policies. Such actions, if accelerated, could adversely affect our business, financial
condition and results of operations. In addition, many Israeli citizens are obligated to perform several days, and in some cases more,
of annual military reserve duty each year until they reach the age of 40 (or older, for reservists who are military officers or who have
certain occupations) and, in the event of a military conflict, may be called to active duty. In response to increases in terrorist activity,
there have been periods of significant call-ups of military reservists. It is possible that there will be military reserve duty call-ups
in the future. Our operations could be disrupted by such call-ups, which may include the call-up of members of our management. Such disruption
could materially adversely affect our business, prospects, financial condition and results of operations.
The Israeli government is currently pursuing extensive changes to Israel’s judicial
system. In response to the foregoing developments, many individuals, organizations and institutions, both within and outside of Israel,
have voiced concerns that the proposed changes may negatively impact the business environment in Israel due to the reluctance of foreign
investors to invest or transact business in Israel, increased currency fluctuations, downgrades in credit rating, increased interest rates,
increased volatility in security markets, and other changes in macroeconomic conditions. We cannot be certain whether the planned judicial
overhaul will occur or in what form. To the extent that any of the negative developments stated above do occur, we cannot be certain on
how investors will assess these matters and whether their assessment will adversely impact the perception of our business and our share
price, or how these developments impact our business operations in Israel.
37
We are exposed to the risk of natural disasters,
political events, war, terrorism and pandemics, each of which could disrupt our business and adversely affect our results of operations.
Events beyond our control could have an adverse effect on our business,
financial condition, results of operations and cash flows. Disruption to our business resulting from natural disasters, political events,
war, terrorism, pandemics or other reasons could impair our ability to continue to provide uninterrupted service to our advertisers and
partners. For example, tensions between Russia and Ukraine, recently resulting in Russia’s invasion of Ukraine, and the possibility
of retaliatory measures taken by the U.S. and NATO have created global security concerns that could have a lasting adverse impact on regional
and global economies, and in turn, may lead to reduced spending on advertising and adversely affect our results of operations. Similarly,
disruptions in the operations of our key third-parties, such as data centers, servers or other technology providers, could have a material
adverse effect on our business.
While we have disaster recovery arrangements in place, they have
not been tested under actual disasters or similar events and may not effectively permit us to continue to provide our services. If any
of these events were to occur to our business, our business, results of operations, or financial condition could be adversely affected.
Investors and our shareholders generally may
have difficulties enforcing a U.S. judgment against us, our executive officers or our directors or asserting U.S. securities laws
claims in Israel.
We are incorporated under the laws of the State of Israel. Service
of process on us, our Israeli subsidiaries, our directors and officers and the Israeli experts, if any, named in this annual report on
Form 20-F, substantially all of whom reside outside of the United States, may be difficult to obtain within the United States.
Furthermore, because a significant portion of our assets and investments,
and most of our directors, officers and Israeli external experts are located outside the United States, any judgment obtained in the United
States against us or any of them may be difficult to collect within the United States.
We have been informed by our legal counsel in Israel that it may
also be difficult to assert U.S. securities laws claims in original actions instituted in Israel. Israeli courts may refuse to hear a
claim based on an alleged violation of U.S. securities laws reasoning that Israel is not the most appropriate forum to bring such a claim.
In addition, even if an Israeli court agrees to hear a claim, it may determine that Israeli law and not U.S. law is applicable to the
claim. There is little binding case law in Israel addressing these matters. If U.S. law is found to be applicable, the content of applicable
U.S. law must be proved as a fact, which can be a time-consuming and costly process. Certain matters of procedure will also be governed
by Israeli law.
Subject to specified time limitations and legal procedures, under
the rules of private international law currently prevailing in Israel, Israeli courts may enforce a U.S. judgment in a civil matter, including
a judgment based upon the civil liability provisions of the U.S. securities laws, as well as a monetary or compensatory judgment in a
non-civil matter, provided that the following key conditions are met:
| • |
subject to limited exceptions, the judgment is final and non-appealable; |
| • |
the judgment was given by a court competent under the laws of the state of the court and is otherwise enforceable in such state;
|
| • |
the judgment was rendered by a court competent under the rules of private international law applicable in Israel; |
| • |
the laws of the state in which the judgment was given provide for the enforcement of judgments of Israeli courts; |
| • |
adequate service of process has been effected and the defendant has had a reasonable opportunity to present his arguments and evidence;
|
| • |
the judgment and its enforcement are not contrary to the law, public policy, security or sovereignty of the State of Israel;
|
38
| • |
the judgment was not obtained by fraud and does not conflict with any other valid judgment in the same matter between the same parties;
and |
| • |
an action between the same parties in the same matter was not pending in any Israeli court at the time the lawsuit was instituted
in the U.S. court. |
The tax benefits available to us for activities
in Israel require us to meet several conditions and may be terminated or reduced in the future, which would increase our costs and
taxes.
We have benefited and currently benefit from a variety of Israeli
government programs and tax benefits with regards to our operations in Israel, that generally carry conditions that we must meet in order
to be eligible to obtain any benefit. Our tax expenses and the resulting effective tax rate reflected in our financial statements may
increase over time as a result of changes in corporate income tax rates, other changes in the tax laws of the countries in which we operate,
non-deductible expenses, loss and timing differences, or changes in the mix of countries, where we generate profit.
If we fail to meet the conditions upon which certain favorable
tax treatment is based, we would not be able to claim future tax benefits and could be required to refund tax benefits already received
including interest and linkage to the Israeli consumer price index. Any of the following could have a material effect on our overall effective
tax rate:
| • |
we may be unable to meet the requirements for continuing to qualify for some programs; |
| • |
these programs and tax benefits may be unavailable at their current levels; or |
| • |
we may be required to refund previously recognized tax benefits if we are found to be in violation of the stipulated conditions.
|
Additional details are provided in Item 5.A “Operating Results”
under the caption “Taxes on Income,” in Item 10.E. “Taxation” under the caption “Israeli Taxation”
and in Note 15 to our Financial Statements.
ITEM 4. INFORMATION
ON THE COMPANY
A.
HISTORY AND DEVELOPMENT OF THE COMPANY
Our History
We were incorporated in the State of Israel in November 1999 under
the name Verticon Ltd., changed our name to IncrediMail Ltd. in November 2000 and in November 2011 changed our name to Perion Network
Ltd. We operate under the laws of the State of Israel. Our headquarters are located at 26 HaRokmim Street, Holon 5885849, Israel. Our
phone number is 972-73-398-1000. Our website address is www.perion.com. The information on our website does not constitute a part
of this annual report. Our agent for service in the United States is Intercept Interactive Inc. d/b/a Undertone, which is located at One
World Trade Center, 71st Floor, Suite J, New York, NY 10007.
We completed the initial public offering of our ordinary shares
in the United States on February 3, 2006. Since November 20, 2007, our ordinary shares are also traded on the TASE.
In the recent years, we completed several acquisitions, including
the acquisition of ClientConnect Ltd. in 2014, the acquisition of Interactive Holding Corp. in 2015, which we refer to, together with
its subsidiaries, as “Undertone”, the acquisition of Septa Communications LLC, also known as “Captain Growth”,
in March 2019, the acquisition of Content IQ LLC in January 2020, the acquisition of Pub Ocean in July 2020 and the acquisition of Vidazoo
in October 2021.
Our SEC filings are available to you on the SEC’s website
at http://www.sec.gov. This site contains reports, proxy and information statements, and other information regarding issuers that
file electronically with the SEC. The information on that website is not part of this annual report on Form 20-F and is not incorporated
by reference herein.
Principal Capital Expenditures
In 2020, 2021 and 2022, capital expenditures consisted of $0.5
million, $0.6 million and $1.1 million, respectively, mainly from investments in computer hardware and software.
39
To date, we have financed our general capital expenditures with
cash generated from operations and debt. To the extent we acquire new products and businesses, these acquisitions may be financed by any
of, or a combination of, cash generated from operations, or issuances of equity.
B.
BUSINESS OVERVIEW
Perion is a global technology innovator in the digital advertising ecosystem, providing
brands, agencies and publishers with the holistic ability to identify and measurably reach their most valuable customers – across
all numerous digital channels, including retail media – with high impact creative units that are orchestrated by its proprietary
Intelligent Hub (iHUB). The iHUB which connects the supply and demand sides of the marketplace, and as a result is capable of bringing
Perion and its client’s significant efficiencies.
Perion’s technology leadership leverages the Company’s
scale, operating across the three main pillars of digital advertising: ad search, social media, and display/video/CTV; which represents
an addressable market of $567 billion in 2022, with an expected growth of $836 billion by 2026, according to eMarketer. The presence across
the three pillars provides diversification of our revenue streams, a proprietary market agility that allows the Company to rapidly capitalize
on shifts in spending and budget allocation in a timely and efficient manner. The three pillars are represented by our search ad monetization,
which is a direct-response platform that works with a range of different publishers; cross-channel high impact advertising through the
open web, including video and CTV; social advertising through our actionable performance monitoring platform; and our content monetization
system.
The advanced technological solutions offered by Perion, which apply
to the majority of consumer journey and marketing funnel, including these capabilities, which enable the Company to continuously expand
its margin, demonstrating the effectiveness of its iHUB, which is further detailed below;
| 1. |
The ability to monetize search
traffic through our partnership with Microsoft Advertising (Bing), the effectiveness of which is reflected in the consistent growth of
our publisher network. This is particularly important given the growing shift to Direct Response units marketing, as search represents
the highest intent customers; |
| 2. |
The ability to meet advertiser demand for higher sustained user engagement with our high-impact Ad suite; |
| 3. |
The ability to monetize the fast-growing retail media segment; |
| 4. |
The ability to innovate in sectors that matter most to brands; this is manifest in SORT® which is
an effective and successful response to advertiser recognition of privacy matters and the upcoming deprecation of cookies by Google;
|
| 5. |
The ability to acquire and execute with strategic and operational discipline; and |
| 6. |
SORT®, Perion’s alternative to third party cookies, is first and foremost the result of our ability to analyze the complex
data signals that are derived from our assets that flow through our iHUB. |
SORT® - which stands for “Strategic Optimization of Relevant
Traits” – and which is covered by a provisional patent, not only eliminates the need for cookies, but is being demonstrated
by actual, real-time comparison tests made by Neutronian, a respected third-party research firm, to outperform first-party cookies.
Further, SORT® does not
collect or store any user data, the way other cookie-less solutions do. Giving SORT® a unique position as a superior, competitively
advantaged replacement for third-party cookies. While cookies are currently an essential part of the targeting infrastructure of the digital
advertising market, they are under increasing pressure for the manner in which they are perceived to violate user privacy. In fact, the
U.S. Congress is looking into cookies and considering further restrictions. Thus, SORT® provides a competitive solution that should
enable Perion to capture additional revenue as brands and advertisers move away from traditional methods such as cookies and other platforms,
i.e., Google that postponed its elimination of cookies until the end of 2024 presumably because they were unable to develop a satisfactory
replacement solution.
In addition, consumers are made aware that a brand campaign is
running through SORT®, and hence the ads are safe to click, thanks to a proprietary “Privacy Shield” graphic logo that
is incorporated into every ad unit running through SORT®. SORT® is a solution that provides consumers with visible confidence
they won’t be followed around the web as their behavior is being tracked.
To provide further details on our iHUB, this centralized and intelligent
hub, connects the supply side and demand side assets of Perion, processing billions of signals from across out network and properties.
This provides five levels of value: operational savings in the form of – shared resources; reduced traffic acquisition costs and
media buying optimization; increased customer value; market agility and creative firepower, as further described below.
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| 1. |
Operational Savings – Shared Resources |
The iHUB plays a central function role in Perion’s activities,
acting as a shared infrastructure resource consisting of an ad-server, as well as a central real-time bidding engine, a smart data layer,
and a sophisticated reporting mechanism. This efficiency eliminates excessive expenses that would otherwise be incurred if business units
had to develop separate infrastructures.
| 2. |
Traffic Acquisition Costs (TAC) Optimization |
The iHUB allows our business units to quickly balance and harmonize
demand and supply, providing optimum utilization of our owned operated supply, as well as what is available on the open web. This
enables us to serve direct demand in a closed loop, generating superior efficiency and hence performance.
This optimization is enhanced by our ability to offer publishers
and advertisers multiple ad products to support their marketing efforts which enables us to increase market share with current and new
clients.
| 3. |
Increased Customer Value |
Our advertisers benefit from
both the large scale and broad reach Perion offers, with enhanced matching based on a segment-by-segment method. This is made possible
by our cross-company data layer, which provides significant value to our publishers, delivering more opportunities to monetize their inventory
and generate incremental revenue. Our unified platform multiple ad products, from different business units, for ongoing, real-time
dynamic creative optimization.
| 4. |
Market Agility and Creative Firepower |
The COVID-19 pandemic, and the volatility of the post-pandemic
marketplace, have highlighted the importance of being able to respond to strategic shifts in advertising dollars allocated between video/CTV,
display and search media. Advertisers are more focused than before on executing flexible media spent strategies. This is where Perion’s
thrives, by providing diversified solutions portfolio, including our well-known high-impact ad formats, which provide advertising performance
and brand engagement across multiple platforms and channels, we are well positioned to capitalize on the inevitable changes in digital
advertising spending and quickly respond to the ever-changing needs of the market.
Strength Through Diversification
Perion is positioned to benefit
from the overall growth of the digital marketplace, through our diversified business solutions that cover the three main pillars of digital
advertising—our search ad monetization; cross-channel high-impact advertising, including through video and CTV; social advertising
through our actionable performance monitoring platform; and our content monetization system. We believe that Perion’s solutions
will be able to attract advertisers from less-effective competitors.
| 1. |
Intelligent High-Impact Solutions that Win the War for Attention |
Brands and advertisers are
in a war for attention, and it is getting more intense. Without delivering impactful creative through the proper channels, brands cannot
express a cohesive, creative campaign throughout the purchase funnel, nor can they achieve successful ROI (Return on Investment). Perion’s
High Impact Advertising, which includes rich media and engaging iCTV, is the breakthrough answer to effective creative expression. It
breaks through the clutter and ad blindness that conventional ad units struggle to overcome, enabling the upper and mid-funnel brand objectives
required by brands and agencies transforming awareness into performance. Some of our customers are world-class brands such as Mercedes-Benz,
IBM, Disney, Walmart, Albertson’s and Verizon.
We operationalize our proprietary,
creatively-led solutions based billions of data points delivered from years of user engagement and interactions with different kinds of
advertising units. These units are developed based on the requirements of our advertisers and our cultural insights. To assure that our
High Impact Advertising creative can be distributed to the right audiences, we have built and grown our curated network of publishers
where our High Impact Advertising are served. Our curated network is also important because advertisers are increasingly concerned
about “brand safety” - they don’t want their ads to appear alongside of questionable or controversial ads, which could
have a negative impact on their brand name and reputation.
41
As described above, our proprietary
cookie-less targeting solution, SORT®, enables superior performance that allows brands to reach optimal performance by predicting
how consumer groups will respond to our High Impact Advertising, at scale, without privacy-invasive practices of legacy third-party cookie-based
targeting. Our technology utilizes real-time, cookie-less data signals to identify users with shared traits and behaviors, then classifying
them into addressable and fully anonymous SmartGroups.
Perion’s technology is designed to continually balance the
right mix of channels – from display to video/CTV – to improve the Return on Ad Spend (“ROAS”). This complete
technological moat delivers robustly optimized campaigns that combine creativity, reach, and our proprietary targeting capabilities. This
moat also includes Perion’s white-glove client service and the turnkey provision of comprehensive, full-funnel solutions to all
brands and agencies.
| 2. |
Search monetization solution - Transforming Search into Revenue |
Capturing consumers at their moment of highest intent has been
well-established as the most ROI (Return on Investment) positive advertising channel, thus, it’s not surprising that advertisers
are increasingly allocating funds to search advertising.
Perion, through its publisher network, delivered approximately
18.5 million average daily searches in 2022 compared to 16.7 million daily searches in 2021, which represents an increase of 11% year-over-year.
Searching is a fundamental digital behavior that will continue
to grow, we are continuously innovating and advancing our solutions to provide more value to our publishers. We deploy advanced AI, neural
networks, and machine learning to optimize yield for our publishers and transform search into revenue. At Perion we are poised to seize
this shift, thanks to our longstanding relationship with Microsoft Bing and other leading search and content partners, across 62 countries.
According to eMarketer reports, U.S. search advertising market
reached $101 billion in 2022, and is estimated to reach over $108 billion in 2023, which represents 39% of U.S. digital ad spending.
Microsoft Advertising has been our partner since 2010, in November
2020 we extended our partnership for four additional years. In February 2022 we were named Microsoft Advertising’s 2021 Global Supply
Partner of the Year. This prestigious award goes to the business that has shown excellence in partnership with Microsoft Advertising across
all areas of collaboration. This recognition is based on key partnership results that include engagement, revenue growth, feature adoption
in Search and Native, and the scale of joint activities.
According to Statista and comScore, Microsoft BING had 1.2 billion
unique monthly global visitors as of May 2022, and delivered 14.7 billion monthly searches over PC as of June 2022. As of December 2022,
Microsoft BING had 8.95% worldwide PC market share. In addition, it generated approximately $11.5 billion in revenue in the 2022 fiscal
year.
Our Search monetization solution is comprised of the following
3 offerings:
Website Monetization - leveraging intent signals to deliver text
ads, shopping offers, and premium news that enable site owners to gain higher revenue and enhanced user engagement.
Search Mediation - enables media traders to monetize search demand
and achieve higher yields by leveraging the machine learning that drives our mediation platform.
App Monetization - using intent-based
search signals to monetize publishers' desktop and mobile apps, white-label search engines and more.
| 3. |
Video Monetization Revenue Management |
Online Video is by far the
fastest-growing category in ad spending over the last 5 years, as budgets continue to shift from traditional TV to online video and online
TV. As linear TV audiences shrink, marketers are investing more and more of their budgets in digital value. As budgets continue rising,
digital publishers recognize the incremental revenue opportunity they can capture, but that requires sophisticated video technology that
is capable of end-to-end management of their content delivery, ad serving and optimization.
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Vidazoo, our video monetization
platform, meets those needs by supporting publishers with best-in-class video technology and monetization. Through Vidazoo’s proprietary
video platform we offer a wide range of products, through which publishers can deliver an enhanced user experience, increase video content
consumption, and identify new monetization opportunities.
Vidazoo’s most commonly distributed technology products are:
Online Video Player, Content Monetization System, AdServer and Yield Ad Management Platform.
In addition, Vidazoo also provides monetization services and generates
revenue via an ad marketplace that connects 28 programmatic advertisers with exclusive high-quality and brand-safe opportunities for video
inventory across 99 publishers worldwide.
| 4. |
Content optimization Solution – Creating Opportunities for Publishers Seeking Growth |
The nature of today’s digital ecosystem, including the power
of Google and Facebook, makes audience growth challenging for publishers. This leaves them with fewer levers for increasing their audiences
and achieving profitable results, in a predictable and efficient manner.
Perion’s Content Monetization Platform (branded as Wildfire)
provides publishers with a profitable and strategic path to the future. In the face of declining revenue, Wildefire drives incremental
growth. The Wildfire platform uses intent signals to keep users continuously engaged, as it repeatedly optimizes content, advertising
and layout within owned and operated mini-sites. Our machine learning employs AI analysis and deploys tens of thousands of combinations
of content and advertising to achieve maximum user engagement and publisher profitability. Wildfire capabilities allow us to optimize
revenue-per-session as well as refine and inform our decision-making by identifying pockets of profitability and loss.
| 5. |
Paragone’s The Cross-Channel
Digital Advertising SaaS platform: Maximize Reach, Optimize Revenue and Improve Efficiency |
Paragone allows advertisers to observe, in real-time, their cross-channel
paid digital advertising activities, execute campaigns with one unified UI, and optimize budgets across channels using the platform AI
and rule-based techniques.
Under the hood, Paragone collects and centralizes previously siloed
advertising data, cleanse, normalizes and visualizes it, so that agencies and brands could manage cross-platform campaigns with ease.
The platform works with some of the largest social networks such as Meta’s networks, LinkedIn, Snapchat, Pinterest, Twitter, TikTok,
and Google, and synthesizes data from attribution vendors including Google Analytics and AT Internet. Marketers can also upload offline
data to the platform and cross-reference it with top of the funnel data so that marketers can get a full-funnel view of their ROAS.
Industry Overview
Our search and display advertising business, which addresses the
majority of digital ad spend, is supported by the integration of AI-based ad-tech, video, display, search, and social ad units.
Based on eMarketer reports, digital advertising spend accounted
for approximately 65% of total worldwide media advertising in 2022, reaching $567 billion and expected to increase to $836 billion and
approximately 73% of worldwide advertising spend by 2026. In 2022, U.S. display advertising spend, including banners, rich media, video
and social, was approximately $141 billion and is expected to increase by 64% and reach $232 billion in 2026, according to eMarketer.
We believe the continued growth of digital ad spend will, in part,
be driven by the convergence of television advertising and digital mediums, including instream and outstream digital video and CTV. Furthermore,
cross-channel technologies, which allows advertisers to connect brand messaging across television and digital channels, will further enable
the convergence of ad spend. Our solution positions us in the sweet spot of these trends by providing a connective technology layer, which
eliminates fragmentation and tracks the entire consumer journey and marketing funnel.
43
All advertisers are increasingly allocating media advertising budgets
to digital channels and formats. We work with some advertisers directly, but our primary customers are advertising and media agencies
– including the major holding companies - who are engaged by brands to develop and implement their creative and media plans. We
work with both sides of the market to plan, design, deliver, manage, and measure their digital advertising investments. We generally do
not enter into long-term contracts with our advertising customers, but respond to specific campaign requests, and are compensated based
on ad formats, campaign complexity, impressions, and creative requirements. We have a high revenue retention rate when serving our large
holding company clients, although the brand composition changes, depending on agency wins/losses and as specific brand campaign tactics
change along the purchasing funnel cycle.
We address the display advertising market through direct and programmatic
media sales as well as managed and self-service advertising campaign management tools. Programmatic customers benefit from advanced automation,
full transparency, and the resulting efficiency. Clients receive support throughout the campaign cycle, which starts with a consultative
sales process to shape the best offering for that customer.
Beyond ad-tech automation, advertisers are also increasingly looking
for unique ad formats and inventory that can tell impactful stories on digital, by utilizing content, rich media, and digital video/CTV.
“Banner fatigue”, which describes the fact that consumers are so overwhelmed by digital advertising that they stop paying
attention – is a well-known reality that Perion’s high-impact units overcome.
We believe the shift beyond standard banner ad formats is inevitable.
eMarketer reports that rich media, including our high-impact ad formats, as well as outstream and instream video accounted for $88 billion
of U.S. digital display ad spend in 2022 and is expected to increase by 81%, reaching approximately $159 billion in 2026, according to
eMarketer.
U.S. Digital video, including instream formats such as “pre-roll”
and outstream formats such as “inline”, represented the vast majority of rich media ad spend in 2022, topping $76 billion,
and is expected to reach $143 billion by 2026, representing an increase of 87%.
U.S. Connected TV ad spending accounted for $21 billion in 2022
and is expected to reach $44 billion by 2026, representing an increase of 106%.
Retail Media is another important sector for advertising, as retailer
data is highly leveraged to create advertising opportunities both on the retailer site and into the open web. Retail Media Networks are
thought to be the “third wave” of digital advertising. According to eMarketer, in 2022, Retail Media accounted for $37 billion
representing 15.0% of the U.S. digital ad spending, which is expected to increase by 48% and reach $55 billion by 2024, which would represent
17.8% of the U.S. digital ad spending. Perion’s Retail Media solutions provide a unique solution through advertising “Ads-as-a-platform”
that enable personalized, dynamic solutions in Perion’s signature high-impact approach, which are highly sought as grocers as other
retailers shift from print advertising to digital solutions.
Social networks are expected to continue playing a major platform
for digital advertising, and advertisers will look for emerging platforms such as TikTok to reach both existing and new audiences. According
to eMarketer, in 2022, social networks accounted for $65 billion representing 26.3% of the U.S. digital ad spending, which is expected
to increase by 21% and reach $79 billion of U.S. digital ad spending by 2024, which would represent 25.5% of the U.S. digital ad spending.
According to eMarketer, users in the U.S. are devoting a significant
amount of time to social networks, since 2021 approximately 75 minutes per day on social network, which is expected to remain at the same
level by 2024, representing approximately 15% of time spent on digital media during those years.
It is estimated that 92% of digital display ads will be transacted
through programmatic channels by 2024, including programmatic direct and real-time bidding (RTB) campaigns, according to eMarketer. Driven
by this trend, we continue to make significant investments in AI-based technologies, which optimize both the price and performance of
our digital advertising campaigns.
44
In light of regulatory developments, including GDPR, CCPA and CPRA,
as well as existing and planned limitations to be enacted by major web browser publishers, including Google, we expect advertisers to
increasingly seek alternatives to third-party “cookie”- based targeting. We are focusing investments and RD on expanding
our SORT® product.
In 2022, U.S. search advertising spend reached $101 billion and
is expected to increase by 45% reaching $147 billion in 2026, representing 38% of U.S. digital ad spending, according to eMarketer.
Search is the most intent-based form of advertising, as advertisements
are served in direct response to the search queries, resulting in relevant advertisements yielding significant revenue to the search engine
companies. Our search-related products address the market by engaging with premium search providers like Microsoft, and offer end users
the ability to search the internet via easily embedded search functionality in a wide variety of publisher sites.
The search engine market is highly competitive as providers such
as Google, Microsoft, Yahoo and other smaller players, seek to gain more market share. We believe such competition will increase the utilization
of our search solution, which enables search providers to increase their market share and monetization.
The ability of our search engine partners to increase their revenue
per search, is driven by the supply of search advertising inventory relative to demand, as well as internal pricing dynamics. As the search
market continues to grow and we continue to expand our solutions, revenue earned by us and our partners is expected to grow as well. An
example of such is the launch of our click-to-buy functionality within user search activity which positions us for future growth and revenue.
Growth Strategy
Our strategy is to grow our business by offering innovative and
diversified advertising, search, awareness and performance solutions to the world’s leading brands, agencies and publishers. These
solutions, driven by advanced technology, make each component of the funnel – awareness, consideration, intent and purchase –
operate more effectively.
We will achieve this by offering compelling data-driven, digital
advertising solutions and search monetization through holistic customer experiences and innovative platforms that cover the three main
pillars of digital advertising - ad search, social media and display / video / CTV.
Growth Through Innovation
Innovation, driven by the
introduction of new technologies, tools, services and offerings, will address one of our key priorities, which is to make our revenue
models more predictable, sustainable and resilient. We are expanding our product portfolio to provide added value to our clients without
adding silos and overhead, while always maintaining efficiency across our different business units. Our iHub is central to that efficiency. The
investments we have made in the scale and reach of our business have enabled us to develop our pioneering technology, SORT®.
To accelerate this process, we completed several acquisitions,
including the acquisitions of Septa Communication LLC in March 2019 (known as “Captain Growth”), the acquisition of Content
IQ LLC in January 2020, the acquisition of Pub Ocean in July 2020 and the acquisition of Vidazoo in October 2021, to allow us to expand
our capabilities and maximize our existing businesses.
Growth Through ChatGPT
Recently, Microsoft Bing announced the addition of ChatGPT to their
search offering. This AI-based conversational agent has the potential to significantly enhance the overall user search experience and
engagement. With ChatGPT, users can receive personalized responses to their queries, resulting in higher-quality and more relevant search
results. This can lead to increased user satisfaction and retention and potentially lead to an increase in the number of end users.
Moreover, ChatGPT can open new monetization opportunities for our
search offering. By integrating relevant ads into the conversation, we can provide a more targeted and effective advertising experience
for our advertisers, leading to higher click-through rates and conversions.
45
Growth Through Connected Devices
Our advertising offerings target brands that are highly focused
on their relationship with consumers. They recognize that their reputation and ability to compete are determined by meaningful connections
that are sequentially delivered by relevant, high-quality creative and advertising contexts, across all platforms, including video, CTV
and iCTV, in brand-safe environments.
Our growth strategy also recognizes the migration to 5G networks
and the growing access to high-speed internet. Streaming of video content that takes advantage of faster delivery, as well as the growth
of CTV and internet-connected devices, is something we are investing in so we will be able to take advantage of upgraded user experiences.
We also intend to continue investing in technology, partnerships
and sales that offer our advertising clients enhanced features and functionalities to reach their consumers.
Growth Through Retail Media
Media Network investment is growing dramatically, for retailers
this represents a new, high-growth, high-margin revenue stream. Commerce media networks will grow to be far larger than just the retailer
site because commerce media finds new customers beyond the retailer’s existing customers with CPG offers, it will reach all screens,
including DOOH.
Amazon made $31 Billion in revenue from advertising last year,
that pace puts advertising at 8% of their total annual revenue.
Retailers cannot and are unwilling
to use “shelf” solutions, they have much data about their customers and are not easily willing to share. For this reason,
retailers are looking for innovative partners and Perion is well-positioned to play an important role here, as we have the technological
capability to assist retailers in leveraging their data and capitalizing on it.
Growth Through iHUB
Our iHUB, connects supply and demand side assets, processing billions
of signals. Our advertisers benefit from both high scale and reach, as well as better matching on a segment basis. This is made possible
by our cross-company data layer. This same technology offers customer value to our publishers, delivering more opportunities to monetize
their inventory and generate incremental revenue - as we make multiple ad products from different business units available through our
unified platform.
Growth Through Search Monetization
Our search monetization solution
leverages our relationship with Microsoft Bing and other leading search and content partners, to drive innovation and revenue based on
AI and analytic tools as part of our ongoing effort to provide comprehensive and compelling search solutions and monetization tools to
diversified publishers around the globe. We do this through a variety of digital properties, including websites, apps, extensions and
search engines.
In addition to strategically diversifying our revenue sources and
extending our products suite and partners, we are embedding our search functionality in our new products, thus increasing our monetization
potential.
Detailed Background on Our Advertising Solutions
The technology backbone behind our Display Advertising solutions
is designed to connect brands with consumers via meaningful digital interactions and experiences. This is done through 8 key components:
1. Supply Management Platform;
2. Demand Management Platform;
3. Analytics Platform;
4. Creative Platform;
5. AI Platform;
6. Actionable Performance
Monitoring;
7. Online video player;
and
8. Content monetization
system.
Supply Management Platform
The Supply management platform operationalizes relationships with
our publishers by treating every impression in an optimal manner. Our platform is driven by the business requirements and monetary expectations,
which in turn determines which ads are allowed, what prices are expected, and the allowable frequency. All components in our supply management
platform are based on proprietary technology and are based on our specific needs and use cases.
46
Demand Management Platform
The demand management platform addresses the needs of advertisers
for campaign planning and design with a system that delivers a recommendation that will hit the specific goals of any advertiser. It recommends
advertising channels, audience targeting strategy and ad product mix which are all based on benchmarks and past experiences of the advertiser.
Once the plan is created, the data-driven platform pushes instructions to the campaign management system for execution, based on parameters
like dates, volume level, list of supply sources and campaign goal.
Analytics Platform
Our Analytics platform provides information and performance metrics
and insights, demonstrating the value of our solutions for our customers. This is flexible system reports all the required data, including
total budget; the delivery of reach and impressions; invested engagement metrics, etc. The analytics platform supports our data driven
culture – providing business stakeholders full visibility of KPI’s on key processes while facilitating data and reporting
in a self-service manner, with pre-build dashboards and reports.
Creative Platform
Perion’s creative platform
is a key component of our solution. It’s a robust rich media platform which leverages our proprietary ad units, and is tailored
to the needs of our advertisers, providing them with a comprehensive solution to create compelling, engaging, dynamic, cross-platform
and high-impact advertisements. We learn, we adjust, we continually iterate - allowing us to create engaging high-performing user experiences
that perform top-mid and bottom-funnel.
AI Platform
Our AI platform uses machine learning to bring deep intelligence
to the various phases of campaigns: planning, activation and reporting which utilize models built on top of our data platforms. Based
on campaign-to-campaign learnings and complex heuristics, the platform generates better performance for our customers and improved efficiency
by providing rules-based and budget optimizations.
Actionable Performance Monitoring
The Actionable Performance Monitoring platform supports the various
phases of campaign management across different channels. The platform manages each of the planning, execution, optimization and measurement
phases and simplifies the complexity of cross channel advertising for brands and agencies while optimizing performance through AI in one
unified, actionable holistic and intuitive dashboard.
Online video player (OVP)
Our proprietary online video player and integrated ad server allows
publishers and brands to upload, manage and stream video content. Vidazoo’s OVP is certified with the major advertising platforms
and compatible with all devices and video formats. The Vidazoo OVP is integrated with a proprietary ad server, ensuring a consistent user
experience by reducing latency and errors, adding to its inherent power and efficiency. Latency is recurring issue in video; consumers
are impatient and significant amounts of revenue is lost when users abandon a site.
Content Monetization System
The content monetization system
provides publishers the tools to maximize ad revenue from reader sessions, optimizing traffic that Perion can efficiently drive to a publisher
site. The system integrates ads within the content layouts, at the page level, constantly a/b testing for the most enhanced performance,
while maintaining a user-friendly experience. This system is powered by a highly customized header bidding technology which controls ad
delivery with optimal view ability measures as it leverages a variety of programmed sources.
47
Search Advertising Solution
The technology of our search solution is composed of the following systems:
1. Publisher
management system;
2. Search demand management system;
3. Monetization products; and
4. AI system.
Publisher Management System
The publisher management system provides publishers access to an
online dashboard providing analytics and performance optimization tools, as well as reports that enable them to maximize their distribution
and monetization.
Search Demand Management System
The search demand management system integrates and onboards demand
vendors to our monetization products. The integration supports multiple vendors according to predefined configurations and rules, enabling
various business models and offerings, and making it possible for Perion’s RD team to innovate on the “search stack.”
Monetization Products
Our monetization products are designed to deliver algorithmic search
results concurrently with sponsored listings, both of which are served for the same search queries. They can be operationalized in different
ways, including the transmission of search queries to search engines such as Bing, search Feed APIs operated on publishers’ domains
and an enriched and optimized hosted search results page which offers an enhanced user experience.
AI System
The AI technology behind our search solutions optimizes the various
phases of the funnel including intent detection and demand optimization to yield performance optimization and maximized consumer experience.
Products Under Development
Innovation is a core driver of our culture and operations and essential
for our growth. Hence, we invest substantial resources in research and development to develop new solutions, offerings, applications and
services, improve our core technologies and enhance our technology facilities and infrastructure and capabilities.
Our research and development activities are primarily
conducted in Israel and Europe, focusing on the development of new services and platforms solutions that will offer our customers (i)
standout brand experiences, building on our high-impact units and recognizing the move to video; (ii) effective distribution tools,
(iii) increased monetization capabilities through content features and applications, and (iv) enhanced optimization via powerful and reliable
data analytics driven by AI. In addition, we are continuously improving existing products through software updates and upgraded features.
Our research and development department is divided into groups based on scientific disciplines and types of applications and products.
Intellectual Property
Our research and development efforts and their underlying proprietary
technologies, solutions and products are meaningful to our operations and competitive advantage, we rely upon trade secret, trademark,
copyright, and patent laws in the United States and abroad to establish and protect our intellectual property.
Although we have a number of patents, copyrights, trademarks and
trade secrets and confidentiality and invention assignment agreements to protect our intellectual property rights, we believe that our
competitive advantage depends primarily on our brand awareness, client relationships, marketing, business development, services, applications,
know-how and ongoing research and development efforts. Accordingly, we believe that the expiration of any of our patents or patent licenses,
or the failure of any of our patent applications to result in issued patents, would not be material to our business or financial position.
Part of the components of our software products were developed
solely by us. We have licensed certain components of our software from third parties. We believe that the components we have licensed
are not material to the overall performance of our software and may be replaced without significant difficulty. We enter into licensing
arrangements with third parties for the use of software components, graphic, sound and multimedia content integrated into our products.
48
Our employees and consultants are required to execute confidentiality
covenants in connection with their employment and consulting relationships with us. These agreements also contain assignment and waiver
provisions relating to the employee’s or consultant’s rights in respect of inventions.
Competition
The markets in which we engage in are subject to intense competition.
We compete with many other companies offering solutions for online publishers and developers,
including search services and other.
The advertising technology industry is highly competitive. There
is a large number of digital media companies and advertising technology companies that offer services similar to those of our advertising
solution and that compete for finite advertiser/agency budgets and publisher inventory. There is a large number of niche companies that
are competitive with our advertising solution because they provide a subset of the services we provide.
Some of the competitors are larger and have more financial resources
than we have, including, Google, Facebook, Amazone and Microsoft – the latter is both a strategic partner and competitor in that
Bing generates organic traffic independent of our publisher network. We also compete with other companies that offer consumers the ability
to search outside of search engines themselves, such as IAC, System1and others.
As we evolve and introduce new solutions, and as our competitors
as well as other companies do the same, we may be subject to additional competition. Many of our current and potential competitors may
have significantly greater financial, research and development, back-end analytical systems, manufacturing, and sales and marketing resources
than we have. These competitors could potentially use their greater financial resources to acquire other companies to gain even further
enhanced name recognition and market share, as well as to develop new technologies, enhanced systems and analytical capabilities, products
or features that could effectively compete with our existing solutions, products and search services. Demand for our solutions, products
and search services could be diminished by solutions, products, services and technologies offered by competitors, whether or not their
solutions, products, services and technologies are equivalent or superior.
On the operational side, our ability to attract developers is largely
dependent on our ability to pay higher rates to our publishers and developers, our success in creating strong commercial relationships
with developers that have successful software, websites or distribution channels, and our ability to differentiate our distribution, monetization,
and optimization tools from those of our competitors.
Government Regulation
We are subject to a number of U.S. federal and state and foreign
laws and regulations that affect companies conducting business on the Internet. The manner in which existing laws and regulations will
be applied to the Internet in general, and how they will relate to our business in particular is unclear. Accordingly, we cannot be certain
how existing laws will be interpreted or how they will evolve in areas such as user privacy, data protection, content, use of “cookies,”
access changes, “net neutrality,” pricing, advertising, distribution of “spam,” intellectual property, distribution,
protection of minors, consumer protection, taxation and online payment services.
For example, we are subject to U.S. federal and state laws regarding
copyright infringement, privacy and protection of user data, many of which are subject to regulation by the Federal Trade Commission.
These laws include the CCPA, which provides data privacy rights for consumers and operational requirements for companies and amended by
the CPRA which imposes additional notice and opt out obligations, including an obligation to provide an opt-out for behavioral advertising.
The Digital Millennium Copyright Act, which aims to reduce the liability of online service providers for listing or linking to third-party
websites that include materials that infringe copyrights or the rights of others, and other federal laws that restrict online service
providers’ collection of user information on minors as well as distribution of materials deemed harmful to minors. Many U.S. states,
such as California, have adopted or are planning to adopt statutes that require online service providers to report certain security breaches
of personal data and to report to consumers when personal data will be disclosed to direct marketers. There are also a number of legislative
proposals pending before the U.S. Congress and various state legislative bodies concerning data protection which could affect us. The
interpretation of data protection laws, and their application to the Internet, is in certain cases unclear and in a state of flux. There
is a risk that these laws may be interpreted and applied in conflicting ways and in a manner that is not consistent with our current data
protection practices.
49
Foreign data protection, privacy and other laws
and regulations may affect our business, and such laws can be more restrictive than those in the United States. For example, in Israel,
privacy laws require that any request for personal information for use or retention in a database be accompanied by a notice that indicates:
whether a person is legally required to disclose such information or that such disclosure is made at such person’s free will and
consent; the purpose for which the information is requested; and to whom the information is to be delivered and for which purposes. A
breach of privacy under such laws is considered a civil wrong and subject to administrative fines as well as civil damages. Certain violations
of the law are considered criminal offences punishable by imprisonment. In the European Union, similar data protection rules exist as
well was privacy legislation restricting the use of cookies and similar technologies. Subject to some limited exceptions, the storing
of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed
on condition that the subscriber or user concerned has given his or her informed consent. Moreover, the GDPR has an extraterritorial scope
and the definition of personal data in broad and includes location data and online identifiers, and imposes more stringent user consent
requirements. Further, it includes stringent operational requirements for companies that process personal data and contains significant
penalties for non-compliance. Also in other relevant subject matters, such as cyber security, data, e-commerce, copyright and cookies,
new European initiatives have been announced by the European regulators and the European Commission and legislators. Further, to date,
member States have some flexibility when implementing European Directives and certain aspects of the General Data Protection Regulation,
which can lead to diverging and stricter national rules.
Because our services are accessible worldwide, certain foreign
jurisdictions may claim that we are required to comply with their laws, including in jurisdictions where we have no local entity, employees
or infrastructure.
These regulations result in significant compliance costs and could result in restricting
the growth and profitability of our business.
Recent Acquisitions
Acquisition of Vidazoo
On October 4, 2021, we entered into a Share Purchase Agreement,
for the acquisition of all the shares of Vidazoo, an Israeli privately held company founded in 2014. Vidazoo is a leading video technology
company that enables both advertisers and publishers to deliver high impact content and advertising to consumers. The acquisition was
made for a total consideration of $93.5 million, consisting of $35.0 million in cash upon closing with an additional of $58.5 million
structured as a performance earn-out, if certain EBITDA-based targets are achieved.
Acquisition of Content IQ
On January 14, 2020, we entered into and consummated a Membership Interest Purchase
Agreement, or MIPA, with Asaf Katzir and Ziv Yirmiyahu, or the Sellers, and Content IQ for the acquisition of all the shares of Content
IQ, a privately held company founded in 2014, based in New York City with offices in Tel Aviv. Content IQ has created data algorithm and
analytics tools that deconstruct content, revenue and distribution to solve digital publishing challenges. The acquisition was made for
a total consideration of $73.05 million, of which $15 million in cash was paid upon closing, with an additional maximum $11 million as
a retention incentive. The total consideration also includes maximum of $47.05 million in earn-outs over a period of two years tied to
revenue and EBITDA-based metrics. The agreement also contains customary representations, warranties, covenants and indemnification provisions.
As of the date of this report, the parties conduct a mediation with respect to the amount of earnout to be ultimately paid to the sellers.
On July 22, 2020, in connection with the acquisition of Pub Ocean,
as stated below, we amended the MIPA. Under the terms of the amended MIPA, it was agreed with the Sellers, that (i) revenue and EBITDA
of Pub Ocean will be attributed towards Sellers’ revenue and EBITDA targets under the MIPA with Perion; and (ii) Sellers will bear
40% of the cost of milestone payments that are ultimately payable to Pub Ocean under the Asset Purchase Agreement (as defined below),
which will be paid solely by deductions from their own earn-out payments and certain escrowed amounts.
Acquisition of Pub Ocean
On July 22, 2020, we entered into an agreement,
or the Asset Purchase Agreement, to acquire the assets of Pub Ocean, a digital publisher-focused technology company with scalable
content distribution and real-time revenue analytics technology. The acquisition was for an aggregate cash consideration of up to $22
million, of which (i) $4 million was paid upon signing, (ii) $17 million of earn-out payments tied to financial targets to be paid over
a two-year period, and (iii) an additional amount of $1 million in retention incentives to be paid over a two-year period. The agreement
also contains customary representations, warranties, covenants and indemnification provisions.
50
Search Services Agreement with Microsoft
In November 2020, we entered into a renewed agreement with Microsoft Ireland Operations
Limited effective from January 1, 2021, until December 31, 2024, which includes desktop and mobile distribution with limited exclusivity
in the United States and an extended geography distribution.
Diversity, Equity Inclusion
As a global company, with employees, customers, suppliers and shareholders across the
globe, we believe that a diverse and inclusive culture is the cornerstone for driving a successful company that creates value to our employees
and the communities in which we operate. We are committed to providing equal opportunity in all aspects of employment and will not tolerate
any illegal discrimination. As of December 31, 2022, 44% of our global employee base were women.
|
• |
Compensation Framework: we have implemented
a comprehensive framework which guides our pay decisions. We use an objective job and compensation evaluation methodology to reduce subjectivity
and bias in pay decisions, leading to greater equity and alignment with the market in employee compensation. |
|
• |
Community Outreach: We believe that improving
life quality of our employees as well as the communities in which they live, is of great value. We encourage our employees to participate
in volunteering programs. We allow our employees to volunteer for 40 hours per year during working hours. We make donations to nonprofit
organization such as Black Girls Code, “Cracking the glass ceiling”, holocaust survivors, youth organizations and many more
around our communities. |
C.
ORGANIZATIONAL STRUCTURE
The legal name of our Company is Perion Network Ltd. and we are organized under the
laws of the State of Israel.
The following table sets forth all of our subsidiaries, which are 100% owned directly
or indirectly by Perion Network Ltd.:
|
Name of Subsidiary |
Place of Incorporation |
|
Codefuel Ltd. |
Israel |
|
IncrediMail, Inc. |
Delaware |
|
Intercept Interactive, Inc. |
Delaware |
|
Vidazoo Ltd. |
Israel |
|
Content IQ LLC |
New York |
|
Pub Ocean Media UK Limited |
England and Wales |
|
Pub Ocean Inc. |
Delaware |
|
BT Media LLC |
Nevada |
|
Make Me Reach SAS, dba Paragone |
France |
|
Smilebox Inc. |
Washington |
51
D.
PROPERTY, PLANTS AND EQUIPMENT
Our headquarters are located in Holon, Israel.
As of December 31, 2022, we lease approximately 36,113 square feet, excluding office space which we currently sublease. The lease expires
in 2025, with an option to extend for two additional two-year periods at our sole discretion and upon 180-day prior written notice. Annual
net cost is approximately $0.8 million.
Undertone’s offices are located at the World
Trade Center (WTC) in New York. As of December 31, 2022, we lease approximately 9,500 square feet, excluding office space which we currently
sublease. The lease expires in 2025 and the annual net cost is approximately $0.7 million.
This excludes office spaces we currently sublease or short-term
rent in co-working spaces.
ITEM 4A. UNRESOLVED
STAFF COMMENTS
None.
ITEM 5. OPERATING
AND FINANCIAL REVIEW AND PROSPECTS
The following discussion of
our financial condition and results of operations should be read in conjunction with our consolidated Financial Statements. In addition
to historical financial information, the following discussion and analysis contains forward looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act, including, without limitation, statements regarding the
Company’s expectations, beliefs, intentions, or future strategies that are signified by the words “expects,” “anticipates,” “intends,”
“believes,” or similar language. These forward looking statements involve risks, uncertainties and assumptions. Our actual results
and timing of selected events may differ materially from those anticipated in these forward looking statements as a result of many factors,
including those discussed under Item 3.D. “Risk Factors” and elsewhere in this annual report.
Certain information called for by this Item
5, including a discussion of the year ended December 31, 2020 compared to the year ended December 31, 2021 has been reported
previously in our annual report on March 16, 2022 under Item 5 “Operating and Financial Review and Prospects”.
Company Overview
Perion is a global advertising technology company whose synergistic solutions are
delivered across the three primary channels of digital advertising – ad search, social media and display, including video and CTV
(connected TV) advertising. These channels are brought together by Perion’s iHUB, which integrates Perion’s business assets
from both sides of the open web, providing significant benefits to brands and publishers.
Our headquarters and primary research and development facilities
are located in Israel, we have our primary sales office in the United States and several other offices located in Europe.
A.
OPERATING RESULTS
Components of Statements of Operations
The following describes the nature of our principal items of income and expense:
Revenue
We generate our revenue primarily from two major sources, Display
Advertising and Search Advertising.
Display Advertising - the
Company generates Display Advertising revenue from delivering high impact ad formats through different channels – display, social
and video/CTV, creatively designed to capture consumer attention and drive engagement, across a hand-picked portfolio of websites and
mobile applications. The Company also generates Display Advertising revenue from content optimization solutions and services, which are
being recognizes once the advertisement partners serve their advertisement across owned and operated properties as well as those of our
publishers. In addition, the Company generates Display Advertising revenue from the use of its platform in online media channels which
connects video and display advertisements derived from advertising partners to advertising inventory available within its publisher’s
network.
52
Search Advertising - the
Company obtains its Search Advertising revenue from service agreements with its search partners. Search Advertising revenue is generated
primarily from monthly transaction volume-based fees earned by the Company for making its applications available to online publishers
and app developers on a revenue share basis relative to the revenue generated by the search partners.
Geographic Breakdown of
Revenue
Our Search Advertising and Display Advertising revenue are distributed
and sold throughout the world (mainly in North America and Europe). The following table shows the revenue, presented in our statement
of operations, generated by territory in the years ended December 31, 2021 and 2022.
|
2021 |
2022 |
|||||||||||||||
|
Search Advertising Revenue
|
Display Advertising
Revenue |
Search Advertising Revenue
|
Display Advertising
Revenue |
|||||||||||||
|
North America (Mainly U.S.) |
80 |
% |
95 |
% |
86 |
% |
89 |
% | ||||||||
|
Europe |
18 |
% |
4 |
% |
13 |
% |
10 |
% | ||||||||
|
Other |
2 |
% |
1 |
% |
1 |
% |
1 |
% | ||||||||
|
Total |
100 |
% |
100 |
% |
100 |
% |
100 |
% | ||||||||
Cost of Revenue
Cost of revenue consists primarily of expenses associated with
the operation of the Company’s server hosting, data verification and targeting, campaign creative, labor, as well as content acquisition
costs and customer support.
Traffic Acquisition Costs and Media Buy
Our traffic acquisition costs and media buy consist primarily of
payments to publishers and developers who distribute our search properties together with their products, as well as the cost of distributing
our own products. In addition, media buy costs consist of the costs of advertising inventory incurred to deliver ads. Traffic acquisition
costs are primarily based on revenue share agreements with our traffic sources and the media buy cost are primarily based on Cost Per
Click (“CPC”) and Cost Per Mille (“CPM”).
Research and Development Expenses (“RD”)
Our research and development expenses consist primarily of salaries
and other personnel-related expenses, allocated facilities costs, subcontractors and consulting fees. Research and development costs are
charged to the statement of income as incurred.
Selling and Marketing Expenses (“SM”)
Our selling and marketing expenses consist primarily of salaries
and other personnel-related expenses, allocated facilities costs, as well as other outsourced marketing activities.
General and Administrative Expenses (“GA”)
Our general and administrative expenses consist primarily of salaries
and other personnel-related expenses, allocated facilities costs, professional fees and other general corporate expenses.
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Depreciation and Amortization
Depreciation and amortization consist primarily of depreciation
of our property and equipment and the amortization of our intangible assets as a result of our acquisitions.
Financial Expenses (Income), Net
Financial expenses (income), net consists of mainly interest income,
foreign currency exchange gains or losses and foreign exchange forward transactions expenses. Interest income consists of interest earned
on our cash, cash equivalents and short and long-term bank deposits. We expect interest income to vary depending on our average investment
balances and market interest rates during each reporting period. Foreign currency exchange changes reflect gains or losses related to
transactions denominated in currencies other than the U.S. dollar.
Income Tax Expense
A significant portion of our income is taxed in Israel and, as
a result of previous acquisitions, in the United States. The standard corporate tax rate in Israel was 23% in 2021 and 2022. For our Israeli
operations we have elected to implement a tax incentive program pursuant to a 2011 Israeli tax reform, referred to as a “Preferred
Enterprise,” according to which a reduced tax rate of 16% has applied to our preferred income in 2016. Starting in 2017 and in 2018,
through 2022, we elected to implement the “Preferred Technological Enterprise” benefits pursuant to an amendment to the taxation
laws which went into effect in 2017, under which a tax rate of 12% is applied to a portion of our income which qualifies for the benefits.
Any other income which does not qualify for special benefits is subject to the standard corporate tax rate. With respect to U.S. tax,
we continue to utilize accumulated losses. The federal statutory income tax rate in the United States has been 21% since 2018. Subsidiaries
in Europe are taxed according to the tax laws in their respective countries of residence.
Comparison of Period to Period Results of Operations:
The following table sets forth our results of operations in dollars amounts and as a
percentage of revenue for the periods indicated (in thousands of U.S. dollars):
|
Year ended December 31, |
||||||||||||||||
|
2021 |
2022 |
|||||||||||||||
|
Amount |
% of Revenue |
Amount |
% of Revenue |
|||||||||||||
|
Revenue: |
||||||||||||||||
|
Display advertising |
$ |
265,323 |
55 |
% |
$ |
360,690 |
56 |
% | ||||||||
|
Search advertising |
213,175 |
45 |
279,566 |
44 |
||||||||||||
|
Total Revenue |
478,498 |
100 |
640,256 |
100 |
||||||||||||
|
|
||||||||||||||||
|
Costs and Expenses: |
||||||||||||||||
|
Cost of revenue |
25,197 |
5 |
30,404 |
5 |
||||||||||||
|
Traffic acquisition costs and media buy |
288,018 |
60 |
372,601 |
58 |
||||||||||||
|
Research and development |
35,348 |
8 |
34,424 |
5 |
||||||||||||
|
Selling and marketing |
53,209 |
11 |
56,014 |
9 |
||||||||||||
|
General and administrative |
20,933 |
4 |
23,813 |
4 |
||||||||||||
|
Depreciation and amortization |
9,897 |
2 |
13,838 |
2 |
||||||||||||
|
Total Costs and Expenses |
432,602 |
90 |
531,094 |
83 |
||||||||||||
|
|
||||||||||||||||
|
Income from Operations |
45,896 |
10 |
109,162 |
17 |
||||||||||||
|
Financial expense (income), net |
581 |
* |
) |
(4,502 |
) |
(1 |
) | |||||||||
|
|
||||||||||||||||
|
Income before Taxes on income |
45,315 |
10 |
113,664 |
18 |
||||||||||||
|
Taxes on income |
6,609 |
2 |
14,439 |
2 |
||||||||||||
|
|
||||||||||||||||
|
Net Income |
$ |
38,706 |
8 |
% |
$ |
99,225 |
16 |
% | ||||||||
(*) Represents amounts of less than 0.5%
54
Year Ended December 31, 2022 Compared to Year Ended December 31,
2021
Revenue. Revenue increased
by 34% (or 24% on a proforma basis) from $478.5 million in 2021 to $640.3 million in 2022.
Display Advertising revenue.
Display Advertising revenue increased by 36%, from $265.3 in 2021 to $360.7 in 2022, accounting for 56% of revenue in 2022. This increase
is mainly driven by 129% growth in video revenue, 108% growth in CTV revenue and 11% increase in the average deal size.
Search Advertising revenue.
Search Advertising revenue increased by 31%, from $213.2 in 2021 to $279.6 in 2022, accounting for 44% of revenue in 2022. This increase
is primarily due to a 21% increase in RPM and 11% increase in average daily searches.
Cost of revenue. Cost of
revenue increased by 21%, from $25.2 million in 2021 to $30.4 million in 2022 and remained stable at 5% of revenue in 2021 and 2022.
Cost of revenue expenses increased in 2022 compared to the prior year, primarily as a result of full year payroll and hosting expenses
related to the acquisition of Vidazoo (in October 2021) in addition to increase in our headcount and data verification and targeting software
expenses which was aligned with the increase in the company’s revenue.
The number of employees included in cost of revenue as of December
31, 2021 and 2022 were 83 and 91, respectively.
Traffic acquisition costs and
media buy. TAC amounted to $288.0 million, or 60% of revenue in 2021, compared with $372.6 million, or 58% of revenue in 2022.
The improvement in media margin was primarily due to a favorable product mix and our iHub which connect the supply and demand sides of
the marketplace, bringing Perion and its client’s significant efficiencies.
Research and development expenses.
RD decreased by 3% from $35.3 million, or 8% of revenue in 2021 to $34.4 million, or 5% of revenue in 2022. Our research and development
expenses in 2022 decreased compared to the prior year, primarily as a result of retention expenses related to MA transactions recorded
in 2021 offset by full year of payroll related to the acquisition of Vidazoo (in October 2021) and increase of stock-based compensation
expenses in 2022.
The number of employees in research and development were 115 and
121 as of December 31, 2021 and 2022, respectively.
Selling and marketing expenses.
SM expenses increased by 5%, from $53.2 million, or 11% of revenue in 2021 to $56.0 million, or 9% of revenue in 2022. The increase
was primarily as a result of full year of payroll and related expenses related to the acquisition of Vidazoo (in October 2021), as well
as increased expenses in marketing related and conferences expenses.
The number of employees in sales and marketing was 154 and 150
as of December 31, 2021 and 2022, respectively.
General and administrative expenses.
GA increased by 14%, from $20.9 million, or 4% of revenue in 2021 to $23.8 million, or 4% of revenue in 2022. The increase of our
general and administrative expenses resulted mainly from increased stock-based compensation expenses, increase in our headcount, management
consulting and other corporate services.
55
The number of GA employees was 68 and 78 as of December 31,
2021 and 2022, respectively.
Depreciation and amortization.
Depreciation and amortization expenses increased by 40%, from $9.9 million in 2021 to $13.8 million in 2022. The increase was primarily
as a result of full year of amortization of our intangible assets results from Vidazoo acquisition.
Financial Expenses (Income), Net.
Finance income increased by $5.1 million from a finance expense of $0.6 million in 2021 to finance income of $4.5 million in 2022.
The increase in financial income was primarily a result of interest income driven from higher cash balances invested in bank deposits
along with higher yield rates in 2022.
Taxes on income (benefit). Our
tax expenses increased from $6.6 million, or 2% of revenue in 2021 to $14.4 million, or 2% of revenue in 2022. The increase in tax expense
resulted primarily from higher pre-tax income in 2022. In addition, the decrease of the effective tax rate derived from increases in tax
deductible costs and the impact of foreign exchange fluctuations on non-USD tax assets and liabilities.
B.
LIQUIDITY AND CAPITAL RESOURCES
To date, we have financed our general capital expenditures with
cash generated from operations, debt and equity offerings. To the extent we acquire new businesses, these acquisitions may be financed
by any of, or a combination of, current cash balance, cash generated from operations, debt or issuances of equity.
As of December 31, 2022, we had $429.6 million in cash, cash equivalents
and short-term deposits, compared to $321.6 million at December 31, 2021. The $108.0 million increase is primarily result of $122.1 million
cash provided by operating activities offset by $9.6 million cash paid in connection with acquisitions.
We believe that our current working capital and cash flow from
operation, in addition to proceeds from our 2021 public offerings, are sufficient to meet our operating cash requirements for at least
the next twelve months. Our cash requirements have principally been for working capital, capital expenditures and acquisitions.
The following table presents the major components of net cash flows
for the periods presented (in thousands of U.S. dollars):
|
Year ended December 31, |
||||||||
|
2021 |
2022 |
|||||||
|
Net cash provided by operating activities |
$ |
71,106 |
$ |
122,119 |
||||
|
Net cash used in investing activities |
(243,470 |
) |
(46,816 |
) | ||||
|
Net cash provided by (used in) financing activities |
229,054 |
(3,258 |
) | |||||
|
Effect of exchange rate changes on cash and cash equivalents |
(33 |
) |
(59 |
) | ||||
|
Net increase in cash and cash equivalents and restricted cash |
$ |
56,657 |
$ |
71,986 |
||||
Net cash provided by operating activities
In 2022, our operating activities provided cash in the amount of
$122.1 million, primarily as result of income in the amount of $99.2 million, decreased by non-cash expenses, depreciation and amortization
of $13.8 million, stock-based compensation expenses of $11.6, and net change of $2.7 million in operating assets and liabilities offset
by change in accrued interest, net of $3.6 million and change in deferred taxes of $1.4 million.
In 2021, our operating activities provided cash in the amount of
$71.1 million, primarily as result of income in the amount of $38.7 million, decreased by non-cash expenses, depreciation and amortization
of $9.9 million, stock-based compensation expenses of $7.0 and net change of $17.7 million in operating assets and liabilities million
offset by change in deferred taxes of $2.8 million.
56
Net cash used in investing activities
In 2022, we used in our investing activities $46.8 million cash,
primarily due to $36.2 million investment in short-term deposits, $9.6 million cash paid in connection to acquisitions and $1.1 million
purchase of property plant and equipment.
In 2021, we used in our investing activities $243.5
million cash, primarily due to $204.5 million investment in short-term deposits, $38.4 million cash paid in connection to acquisitions
and $0.6 million purchase of property plant and equipment.
Net cash used in financing activities
In 2022, we used in our financing activities $3.3 million, primarily
due to $9.1 million payment of contingent consideration, offset by $5.8 million proceeds from exercise of options.
In 2021, our financing activities provided cash in the amount of
$229.1 million, primarily due to $230.5 million issuance of shares in private placement, net, and $6.9 million proceeds from exercise
of options, offset by $8.3 million repayment of our long-term loan.
Bank Mizrahi Credit Facility
On December 17, 2018, ClientConnect Ltd. (“ClientConnect”),
a former Israeli subsidiary of Perion, which merged into Perion on June 30, 2020, executed a new loan facility with Bank Mizrahi in the
amount of $25 million. As of March 8, 2021, this credit facility was repaid in full.
Off Balance
Sheet Arrangements
We do not have off-balance sheet arrangements (as such term is
defined by applicable SEC regulations) that have or are reasonably likely to have a current or future effect on our financial condition,
changes in financial conditions, revenue or expenses, results of operations, liquidity, capital expenditures or capital resources that
are material to investors.
C.
RESEARCH, DEVELOPMENT, PATENTS AND LICENSES, ETC.
We conduct our research and development activities primarily in
Israel. As of December 31, 2022, our research and development department included 121 employees. Research and development expenses were
$35.3 million and $34.4 million in the years ended December 31, 2021 and 2022, respectively. In 2022, our efforts were focused on adapting,
extending and maintaining compatibility with the ever-changing business landscapes and automation of our platforms and operating systems.
For a discussion of our intellectual property and how we protect
it, see “Business Overview—Intellectual Property” under Item 4.B. above.
D.
TREND INFORMATION
Industry trends expected to affect our revenue,
income from continuing operations, profitability and liquidity or capital resources:
1. The digital advertising environment is very crowded and consumers
suffer from over exposure to advertising promotions. This in turn has brought on a certain level of blindness to advertising, decreasing
their effectiveness and value to advertisers. We are therefore concentrating on unique stand-out quality ad formats with great creative
execution that grabs the attention of consumers, increasing the effectiveness of the ad and ultimately the value to advertisers.
2. The macroeconomic downturn during 2022 forced advertisers to
reassess their digital advertising budget allocations and shift budgets from social platforms and standard ad units to direct response
platforms such as search advertising and high-impact ad units for video and display, including CTV and retail. Those actions are intended
to increase customer engagement, thus enhancing their brand equity and increasing return on investment (ROI). Through its business diversification
strategy, Perion operates in the three main pillars of digital advertising – social media, search advertising and display/video/CTV–
and can rapidly react to those budget shifts and capitalize on them by focusing efforts and resources to where budgets are shifting.
57
3. Retail media is a fast-growing market segment, as retailers
are looking into leveraging the first-party data they manage to create advertising opportunities both on the retailer site and into the
open web. According to eMarketer, Retail media accounted for $37 billion in 2022, 15.0% of the U.S. digital ad spending, and is expected
to increase by 48% to $55 billion by 2024, which would represent 17.8% of the U.S. digital ad spending. Perion’s Retail Media solutions
provide a unique solution through advertising “Ads-as-a-platform” that enable personalized, dynamic solutions in Perion’s
signature high-impact approach, which are highly sought as grocers as other retailers shift from print advertising to digital solutions.
Perion also offers retailers an “always on” solution, ensuring retailers constant advertising that maintains high brand awareness
along ongoing performance campaigns on one hand, and generates a steady revenue stream for Perion along the year.
4. Advertisers and consumers are becoming increasingly aware of
user online privacy matters, recognizing the need protect user privacy ahead of the expected deprecation of cookies by Google. This is
evident in the continuous increase in customer adoption of Perion’s cookieless SORT® solution, as 59% of our agencies and brand
customers adopted our SORT® solution in Q4 2022.
5. Another trend we are seeing is a shift from linear TV to digital
Connected TV (CTV). Though traditional linear TV ad spending dominates the market, CTV advertising is growing at a much faster rate. According
to eMarketer, CTV ad spending is expected to increase from $19 billion in 2022 to $39 billion in 2026, while linear TV ad spending is
expected to decrease by $720 million during that period. Perion’s CTV business continued to gain traction, growing by 42% year-over-year
in 2022, representing 10% of the total display advertising revenue.
6. The digital advertising environment is complex and fragmented.
As a result, it is increasingly difficult for advertisers, including brands and agencies, as well as investors, to discern the difference
between the offerings, and this situation requires advertisers to maintain only small number of relationships which provide a comprehensive
and holistic solution and service. In addition, advertisers are looking for clean, safe and transparent solutions. We are attempting to
address these needs in our various revenue streams by providing robust, scalable and differentiated products across multiple platforms.
Our solution offers a full suite of services for the advertising brand and agency, including the entire advertising process from creative
through analytic data collection and processing which is also utilized through programmatic capabilities which has an increasing demand.
Through Content IQ, we provide advertisers the ability to serve advertisements which are targeted to the end-user’s interests alongside
relevant optimized content and page-level reader engagement. Our solution also includes a technology platform for buying media on social
and mobile platforms which helps optimize the money spent by agencies and advertisers. In turn, we also provide the publisher a solution
for creating new advertising inventory and increasing their revenue.
7. Our search monetization revenue is predominantly
within the desktop computer environment. The transition in recent years of consumer consumption of applications, services and content
from desktop towards mobile platforms has accelerated and, as a result, an increasing share of advertising campaigns are channeled towards
mobile platforms resulting in fewer consumer software downloadable products are being developed. To address this trend, we have shifted
the growth focus of all parts of this business away from downloadable desktop software towards the monetization of other search assets.
8. The most recent trend that is shaking up internet
in general and search advertising in particular, is generative AI and Microsoft’s Bing integration of the AI-driven ChatGPT. Though
generative AI is expected to change the way we consume internet, ChatGPT, designed and developed by OpenAI as a conversational AI model
that was released in late 2022, gained traction fast, reaching 1 million users in just 5 days. Though the technology is still evolving,
and developers are working to correct existing bugs, popularity keeps growing as the new AI-powered Bing search engine reached 100 million
daily active users during March 2023 with roughly one third was new to Bing while engagement was on the rise. It is expected that ChatGPT
will revolutionize Bing search capabilities by providing more advanced and intuitive search experiences for its users, better meeting
their needs and expectations. We believe that such superior search results will increase advertiser spending and as a result, we expect
a potential positive impact on our search business.
9. In past years the browser companies, particularly Google and
Microsoft, as well as others, have been instituting policy changes, regulations and technologies that is making it increasingly difficult
to change a browser’s settings even with user consent, including the ability to change a browser’s default search settings.
Changing such settings has been a major part of the Company’s monetization model and until now we have been successful in dealing
with these measures, within the framework allowed by these companies We continue to believe, as supported by the level of revenue over
the last couple of years, that as the market continues to consolidate around accepted marketing practices, there remains sufficient business
at a level sufficient to generate significant revenue and profits.
58
For more information on uncertainties, demands, commitments or
events that are reasonably likely to have a material effect on our business, see Item 3.D “Key Information—Risk Factors.”
For additional trend information, see the discussion in Item 5.A.
“Operating and Financial Review and Prospects—Operating Results.”
E.
CONTRACTUAL OBLIGATIONS AND COMMITMENTS
Accrued Severance Pay
As of December 31, 2022 our accrued severance pay amounted to $2.3
million and consisted of prior notice to our executive employees as well as severance pay obligations to our Israeli employees, as required
under Israeli labor law and as set forth in employment agreements, are payable only upon termination, retirement or death of the respective
employee and for which we are unable to reasonably estimate the ultimate amount and timing of settlement. Of this amount, $2.0 million
is unfunded as of December 31, 2022. See also Note 2 to our consolidated financial statements appearing in “ITEM 18. Financial Statements”
of this annual report.
Uncertain Tax Positions (ASC-740)
As of December 31, 2022 our accruals for uncertain tax positions
amounted to $9.4 million and consisted of accruals for certain income tax positions under ASC 740 that are paid upon settlement with tax
authorities, and for which we are unable to reasonably estimate the ultimate amount and timing of settlement. See Note 13(h) to our consolidated
financial statements included in ITEM 18 of this annual report for further information regarding our liability under ASC 740.
Operating Leases
We have various non-cancelable operating leases for our headquarters
in Holon, Israel and Undertone offices in New York.
The lease of our offices in Holon expires in 2025, with an option
to extend for two additional two-year periods at its sole discretion and upon 180-day prior written notice.
The lease of Undertone offices in New York expires in 2025.
As of December 31, 2022, the aggregate future financial obligations
under these lease agreements were $12.7 million, of which $4.6 million is due in the next twelve months.
F.
CRITICAL ACCOUNTING ESTIMATES
We have provided a summary of our significant accounting policies,
estimates and judgments in Note 2 to our consolidated financial statements, which are included elsewhere in this Annual Report. The following
critical accounting discussion pertains to accounting policies management believes are most critical to the portrayal of our historical
financial condition and results of operations and that require significant, difficult, subjective or complex judgments. Other companies
in similar businesses may use different estimation policies and methodologies, which may impact the comparability of our financial condition,
results of operations and cash flows to those of other companies.
Revenue recognition
The Company applies the provisions of Accounting
Standards Codification 606, Revenue from Contracts with Customers (“ASC 606”or “Topic 606”“=). The Company
applies the practical expedient for incremental costs of obtaining contracts when the associated revenue is recognized over less than
one year.
59
The Company generates
revenue primarily from two major sources, Display Advertising Revenue and Search Advertising Revenue. The Company evaluates whether Search
Advertising Revenue and Display Advertising Revenue should be presented on a gross basis, which is the amount that a customer pays for
the service, or on a net basis, which is the amount of the customer payment less amounts the Company pays to publishers. In making that
evaluation, the Company considers whether it controls the promised good or service before transferring that good or service to the customer.
The Company considers indicators such as whether the Company is the primary obligor in the arrangement and assumes risks and rewards as
a principal or an agent, whether it changes the products or performs part of the service, whether the Company has discretion in establishing
prices and whether it controls the underlying advertising space. The evaluation of these factors is subject to significant judgment and
subjectivity. Generally, in cases in which the Company controls the specified good or service before it is transferred to a customer,
revenue is recorded on a gross basis.
Stock-Based Compensation
The Company accounts for share-based compensation
under ASC 718, “Compensation - Stock Compensation”, which requires the measurement and recognition of compensation expense
based on estimated fair values for all share-based payment awards made to employees, contractors and directors. ASC 718 requires companies
to estimate the fair value of equity-based awards on the date of grant, using an option-pricing model. The value of the portion of the
award that is ultimately expected to vest is recognized as an expense over the requisite service periods in the Company's consolidated
statement of income. The Company estimates forfeitures to be estimated at the time of grant, and revised if necessary in subsequent periods,
if actual forfeitures differ from those estimates.
The Company recognizes compensation expenses for the value of its
awards, which have graded vesting based on service conditions, using the straight-line method, over the requisite service period of each
of the awards, net of estimated forfeitures. Estimated forfeitures are based on actual historical pre-vesting forfeitures. For performance-based
share units, the Company recognizes compensation expenses for the value of such awards, if and when the Company concludes that it is probable
that a performance condition will be achieved based on the accelerated attribution method over the requisite service period. The Company
reassess the probability of vesting at each reporting period for awards with performance conditions and adjust compensation cost based
on its probability assessment.
We account for changes in award terms as a modification in accordance
with ASC 718. A modification to the terms of an award should be treated as an exchange of the original award for a new award with total
compensation cost equal to the grant-date fair value of the original award plus the incremental value measured at the same date. Under
ASC 718, the calculation of the incremental value is based on the excess of the fair value of the new (modified) award based on current
circumstances over the fair value of the original award measured immediately before its terms are modified based on current circumstances.
Total stock-based compensation expense recorded during 2022 was
$11.6 million, of which $0.5 million was included in cost of revenue, $2.1 million in research and development costs, $4.5 million in
selling and marketing expenses, and $4.5 million in general and administrative expenses.
As of December 31, 2022, the maximum total compensation cost related
to options and RSU’s, granted to employees and directors not yet recognized amounted to $20.7 million. This cost is expected to
be recognized over a weighted average period of 1.57 years.
We estimate the fair value of standard stock options granted using
the Binomial method option-pricing model. The option-pricing model requires a number of assumptions, of which the most significant is
expected stock price volatility. Expected volatility was calculated based upon actual historical stock price movements of our stock. The
risk-free interest rate is based on the yield from U.S. Treasury zero-coupon bonds with an equivalent term. The fair value of restricted
share units is based on the market value of the underlying shares at the date of grant.
Taxes on Income
We are subject to income taxes primarily in Israel and the United
States. Significant judgment is required in evaluating our uncertain tax positions and determining our provision for income taxes. Based
on the guidance in ASC 740 “Income Taxes”, we use a two-step approach to recognizing and measuring uncertain tax positions.
The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is
more likely than not that the position will be sustained upon examination by the relevant tax authority, including resolution of related
appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely
of being realized upon settlement.
60
Although we believe we have adequately reserved for our uncertain
tax positions, no assurance can be given that the final tax outcome of these matters will not be different. We adjust these reserves in
light of changing facts and circumstances, such as the closing of a tax examination, the refinement of an estimate or changes in tax laws.
To the extent that the final tax outcome of these matters is different than the amounts recorded, such differences will impact the provision
for income taxes in the period in which such determination is made. The provision for income taxes includes the impact of reserve provisions
and changes to reserves that are considered appropriate.
Accounting for tax positions requires judgments, including estimating
reserves for potential uncertainties. We also assess our ability to utilize tax attributes, including those in the form of carry forwards
for which the benefits have already been reflected in the financial statements. We record valuation allowances for deferred tax assets
that we believe are not more likely than not to be realized in future periods. While we believe the resulting tax balances as of December
31, 2022 are appropriately accounted for, the ultimate outcome of such matters could result in favorable or unfavorable adjustments to
our consolidated financial statements and such adjustments could be material. See Note 13 of the Financial Statements for further information
regarding income taxes. We have filed or are in the process of filing local and foreign tax returns that are subject to audit by the respective
tax authorities. The amount of income tax we pay is subject to ongoing audits by the tax authorities, which often result in proposed assessments.
We believe that we adequately provided for any reasonably foreseeable outcomes related to tax audits and settlement. However, our future
results may include favorable or unfavorable adjustments to our estimated tax liabilities in the period the assessments are made or resolved,
audits are closed or when statutes of limitation on potential assessments expire.
Business Combinations
We account for our business combinations using the acquisition
method of accounting, which requires, among other things, allocation of the fair value of purchase consideration to the tangible and intangible
assets acquired and liabilities assumed at their estimated fair values on the acquisition date. The excess of the fair value of purchase
consideration over the values of these identifiable assets and liabilities is recorded as goodwill. When determining the fair value of
assets acquired and liabilities assumed, we make estimates and assumptions, especially with respect to intangible assets. Our estimates
of fair value are based upon assumptions believed to be reasonable, but which are inherently uncertain and unpredictable, and, as a result,
actual results may differ from estimates. During the measurement period, not to exceed one year from the date of acquisition, we may record
adjustments to the assets acquired and liabilities assumed, with a corresponding offset to goodwill if new information is obtained related
to facts and circumstances that existed as of the acquisition date. Acquisition costs, such as legal and consulting fees, are expensed
as incurred.
Goodwill and Other Intangible Assets
Goodwill and certain other purchased intangible assets have been
recorded in our financial statements as a result of acquisitions. In business combinations, in accordance with ASC Topic 805, “Business
Combination,” we allocate the fair value of purchase consideration to the tangible assets acquired, liabilities assumed, and intangible
assets acquired based on their estimated fair values. Such valuations require us to make significant estimates, assumptions, and judgments,
especially with respect to intangible assets. The estimated fair values and useful lives of identifiable intangible assets are based on
many factors, including estimates and assumptions of future operating performance and cash flows of the acquired business, market conditions,
technological developments and specific characteristics of the identified intangible assets. The allocation of the consideration transferred
in certain cases may be subject to revision based on the final determination of fair values during the measurement period, which may be
up to one year from the acquisition date.
Goodwill represents excess of the purchase price in a business
combination over the fair value of identifiable tangible and intangible assets acquired. Goodwill is not amortized, but rather is subject
to an impairment test.
ASC No. 350, “Intangible—Goodwill and Other”
requires goodwill to be tested for impairment at least annually and, in certain circumstances, between annual tests. The accounting guidance
gives the option to perform a qualitative assessment to determine whether further impairment testing is necessary. The qualitative assessment
includes judgement and considers events and circumstances that might indicate that a reporting unit’s fair value is less than its
carrying amount.
61
For the years ended December 31, 2021 and 2022, no impairment losses
were recorded.
Impairment of Long-Lived Assets
We are required to assess the impairment of tangible and intangible
long-lived assets and right-of-use assets subject to amortization, under ASC 360 “Property, Plant and Equipment”, on a periodic
basis and when events or changes in circumstances indicate that the carrying value may not be recoverable. Impairment indicators include
any significant changes in the manner of our use of the assets or the strategy of our overall business, significant negative industry
or economic trends and significant decline in our share price for a sustained period.
Upon determination that the carrying value of a long-lived asset
may not be recoverable based upon a comparison of aggregate undiscounted projected future cash flows from the use of the asset or asset
group to the carrying amount of the asset, an impairment charge is recorded for the excess of carrying amount over the fair value. We
measure fair value using discounted projected future cash flows. We base our fair value estimates on assumptions we believe to be reasonable,
but these estimates are unpredictable and inherently uncertain. If these estimates or their related assumptions change in the future,
we may be required to record impairment charges for our tangible and intangible long-lived assets subject to amortization.
For the years ended December 31, 2021 and 2022, no impairment of
long lived assets were recorded.
Derivative and Hedge Accounting
During fiscal 2021 and 2022, approximately 9%, of our operating
expenses, were denominated in NIS. In order to mitigate the potential adverse impact on cash flows resulting from fluctuations in the
NIS exchange rate, we started to hedge portions of our NIS forecasted expenses with derivatives contracts. We implement hedge accounting
under ASC-815, therefore, the effective portion of the change in fair value on the derivatives is reported as a component of other comprehensive
income and gains or losses are reclassified into the relevant period earnings. We recognize in “financial expenses (income), net”
the ineffective portion of a derivative change in fair value, if any, as well as the change in fair value of all non-designated under
hedge accounting derivatives.
Establishing and accounting for foreign exchange contracts involve
judgments, such as determining the fair value of the contracts, determining the nature of the exposure, assessing its amount and timing,
and evaluating the effectiveness of the hedging arrangement.
Although we believe that our estimates are accurate and meet the
requirement of hedge accounting, if actual results differ from these estimates, such difference could cause fluctuation of our recorded
expenses.
Recent Accounting Standards
In October 2021 the FASB ASU 2021-08, Topic 805 “Business
Combinations” – Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The amendments in this
update require that an entity (acquirer) recognize and measure contract assets and contract liabilities acquired in a business combination
in accordance with Topic 606. At the acquisition date, an acquirer should account for the related revenue contracts in accordance with
Topic 606 as if it had originated the contracts. To achieve this, an acquirer may assess how the acquiree applied Topic 606 to determine
what to record for the acquired revenue contracts. The amendments in this update are effective for fiscal years beginning after December
15, 2022, including interim periods within those fiscal years, and early adoption is permitted. The adoption of the new guidance will
have an immaterial impact on its consolidated financial statements
62
ITEM 6. DIRECTORS,
SENIOR MANAGEMENT AND EMPLOYEES
A.
DIRECTORS AND SENIOR MANAGEMENT
The following table sets forth information regarding our executive officers and directors
as of March 6, 2022:
|
Name
|
Age
|
Position
|
|
Eyal Kaplan*(1)(2)
|
63 |
Chairman of the Board of Directors |
|
Doron Gerstel |
62 |
Chief Executive Officer; Director |
|
Tal Jacobson |
48 |
General Manager, CodeFuel |
|
Maoz Sigron |
45 |
Chief Financial Officer |
|
Michal Drayman*(1)(4)
|
50 |
Director |
|
Amir Guy*(1)(3)
|
53 |
Director |
|
Rami Schwartz*(4)
|
64 |
Director |
|
Michael Vorhaus*(2)(3)(4)
|
65 |
Director |
|
Joy Marcus*(2)(3)
|
61 |
Director |
|
Daniel E. Aks |
62 |
President, Undertone |
|
Daniel Slivkin |
39 |
Chief Executive Officer, Vidazoo |
|
Gal Dagan |
38 |
VP RD, Vidazoo |
* “Independent director” under the Nasdaq Listing Rules.
(1) Member of our investment committee.
(2) Member of our nominating and governance committee.
(3) Member of our compensation committee.
(4) Member of our audit committee.
We recently announced entering a CEO transition period, as Tal Jacobson
will be promoted to Chief Executive Officer on August 1, 2023. Following Mr. Jacobson’s promotion, Mr. Gerstel will step down from
the executive team and remain on our Board of Directors.
There are no arrangements or understandings between any of our
directors or executive officers and any other person pursuant to which our directors or executive officers were selected.
Eyal Kaplan has
served as the chairperson of the board of directors of the Company since May 2018. He is also the chairperson of Medial Earlysign, a privately
held company in the healthcare technology field, since 2016. Mr. Kaplan is also engaged in advisory and consulting, focusing on growth-through-innovation
and corporate strategies. Prior to that, he was Managing General Partner with Walden Israel, a venture capital firm, during which time
he was Director and chairperson of numerous portfolio companies. In 1990 he co-founded Geotek Communications, an international wireless
communications company, and served as senior vice president with broad strategic, managerial and operational responsibilities until 1995. Mr.
Kaplan has been a member of the Technion (Israel Institute of Technology) Council (executive board) since January 2014, where he chaired
(and is currently a member of) the Finance Committee, and is a member of the Endowment Investment Committee. Since 2012 he has been a
member of the Technion Board of Governors, a body of some 300 high-profile visionaries and decision makers with outstanding achievements
in the fields of science, technology, economy, industry, culture and society. From 2007 to 2012, Mr. Kaplan was a member of the Advisory
Committee of Caesarea Center for Capital Markets Risk Management, and from 2005 to 2014, he was a member of the Advisory Committee
of the Global Consulting Practicum at the Wharton School of the University of Pennsylvania. Mr. Kaplan holds an MBA from the Wharton School
of the University of Pennsylvania, a Master of Arts in International Studies from the Lauder Institute of the University of Pennsylvania,
and a Bachelor of Science degree (with Honors) in economics and management from the Technion - Israel Institute of Technology.
63
Doron Gerstel has
been a director of the Company since May 2018, and the Chief Executive Officer of the Company since April 2017. In his previous role as
CEO of Panaya Ltd., Mr. Gerstel led a company turnaround that saw an increase in annual revenue and the company’s acquisition by
Infosys Limited. Mr. Gerstel has also held CEO positions at Nolio Ltd., Syneron Medical Ltd. and Zend Technologies Ltd. Mr. Gerstel holds
a BSc. in Economics and Management from the Technion Institute of Technology in Haifa, and an MBA from Tel Aviv University.
Tal Jacobson has
served as the General Manager of CodeFuel since November 2018. Mr. Jacobson has been an executive in the Israeli high-tech industry for
over 20 years. Previously to joining Perion, Mr. Jacobson served as the Chief Revenue Officer and Chief Business Development Officer at
SimilarWeb. He also founded Monotizer, which provided a technology for generating traffic to online retailers. Previously, Mr. Jacobson
was the VP of Business at McCann Erickson as well as held the position of CEO at Watchitoo - a video collaboration platform. Mr. Jacobson
was also the Director of Business Development at AOL as part of the IM division (ICQ).
Maoz Sigron has
served as the Chief Financial Officer of the Company since February 2018. Prior to that, from September 2017 until February 2018,
Mr. Sigron served as our VP Finance. Previously, he served in various finance leadership and senior accounting positions at Tnuva Dairy
Corporation, Allot Communications Ltd. (Nasdaq:ALLT) and Stratasys Ltd. (Nasdaq:SSYS) as well served as a CPA with PwC. Mr. Sigron holds
a B.A in accounting and Economics from the College of Management, Israel.
Michal
Drayman has served as a director of the Company since June 2022. Ms. Drayman is a venture partner in JVP Foodtech Impact Fund
L.P., the Foodtech and Agtech investment arm of the Jerusalem Venture Partners VC (JVP), an Israeli venture capital fund. Ms. Drayman
serves as a director of privately held companies including Innovopro Ltd., Kinoko Tech Ltd., Agrint Ltd., Greeneye – Centure application
Ltd. BioBetter Ltd , aVISI Ltd and MetzerPlast. From 2005 to 2020 Ms. Drayman served as a director of Epitomee Medical Ltd. (EPIT). From
2005 to 2014 Ms. Drayman served as a CFO and VP business development at the European High Tech Capital, a privately held investment firm
which is focused on healthcare investments. From 2001 to 2004 Ms. Drayman served as the VP Finance America of Lumenis Inc., a California
based company. From 1994 to 2001 Ms. Drayman served in different financial positions in Lumenis Ltd. (previously, Nasdaq:LMNS). Ms.
Drayman holds a BA in Economics and Accounting from Haifa University and an MBA, with honors, from The College of Management, Rishon Letzion,
Israel, Biomedical Management Track.
Amir
Guy has served as a director of the Company since June 2022. Mr. Guy spent most of his career, more than 26 years, in the
advertising industry, both in corporate and entrepreneurial settings. Mr. Guy is the founder of togetherr (a Fiverr company) since March
2021. Mr. Guy serves as a director of Adler-Chomski Group/ Grey Israel. Prior to joining Adler-Chomski Group, Mr. Guy served in various
accounting roles, including Wunderman Thompson LLC and other private advertising companies. Mr. Guy holds a B.B.A in marketing and finance
from the College of Management in Israel and an MBA from the Kellog School of Management at Northwestern University.
Rami Schwartz has
served as a director of the Company since January 2019. Mr. Schwartz joined The Portland Trust as Managing Director of the Tel Aviv office
in April 2018. Mr. Schwartz also serves as an advisory board member of Algosec. Previously, Mr. Schwartz was the President of the Amdocs
Products and Amdocs Delivery groups for 7 years. Prior to joining Amdocs, Mr. Schwartz was the chairperson of Olive Software (acquired
by ESW Capital), and Comply, the co-founder and CEO of Zizio and DigiHOO, and an EIR at Cedar Fund. Mr. Schwartz was CEO and director
of Exanet (acquired by Dell) and General Manager of Precise Software (acquired by Veritas software). Mr. Schwartz holds a B.Sc. in excellence,
in Mathematics and Computer Science from the Hebrew University in Jerusalem.
64
Michael Vorhaus has
served as a director of the Company since April 2015. Mr. Vorhaus also serves as a director of Altimar Acquisitions Corporation I
and II (both on Nasdaq) and he is currently a director of Altimar III (NYSE: ATAQ). Mr. Vorhaus also serves as a Director of Popreach
(TSE: POPR). Starting December of 2018, Mr. Vorhaus has founded Vorhaus Advisors and is CEO of the firm. From 1994 to November
2018, he was in a variety of positions at of Frank N. Magid Associates, Inc., a research-based strategic consulting firm. From
1994 to 2008, he served as its Senior Vice President and Managing Director and from 2008 to 2018 he served as the President of Magid Advisor,
a unit of Magid Associates. From 2013 to 2014, Mr. Vorhaus served as a director of Grow Mobile. In 1987, he founded Vorhaus Investments.
Vorhaus advises a number of start-ups and venture capital firms. He also has a wide variety of early stage investments primarily in media
and related areas. Mr. Vorhaus holds a B.A. in Psychology from Wesleyan University and completed the Management Development Program at
the University of California, Berkeley’s Haas School of Business.
Joy Marcus has been
a director of the Company since November 2019. Ms. Marcus has a wealth of experience in the media industry, including EVP and GM
Digital Video at Condé Nast Entertainment, CEO of Bloglovin’ (acquired by Impact), SVP Global Marketing Solutions at Time Warner
(now WarnerMedia), VP International at MTV Networks, a division of Viacom (now Paramount) and GM North America of DailyMotion (acquired
by Orange/France Telecom) and VP Business Development at BN.com (IPO). She sits on the Boards of digital media companies BBC Maestro
and Qwire, and the nonprofits New York Tech Alliance and MOUSE. Joy is the Co-Founder and Managing Director of The 98, a venture fund
that invests in women led tech enabled businesses. She is a full time Lecturer on Entrepreneurship at Princeton University where
she was the James Wei Visiting Professor in Entrepreneurship in 2014 and is a Venture Fellow at Jerusalem Venture Partners. Joy graduated
Magna Cum Laude, Phi Beta Kappa, from Princeton University and has a JD from NYU Law School and completed the management course in Finance
Accounting at Columbia University Graduate School of Business.
Daniel E. Aks has
served as President of Undertone since August 2019 and an external director of the Company from August 2018 until August 2019. Since December
2017, Mr. Aks is the Chief Executive Officer of Antenna International, a story-maker and creative technology company devoted to cultural,
iconic site and commercial attractions. Prior to Antenna, from December 2010 to December 2017 he was the owner of C3 Multimedia LLC.,
a consulting firm in the fields of information, education K-16 and media and during his term with C3 was, inter-alia, the Acting Chief
Operating Officer for the Educational Records Bureau (ERB), a K-12 assessment organization serving private education and high performing
public institutions (from March 2015 until December 2017). From January 2014 until December 2017, Mr. Aks was the Co-Founder of The EdTech
Fund, an investment vehicle for seed capital investments in educational technologies. He also served as the Senior Vice President and
Chief of Staff for McGraw-Hill Education (MHE) from September 2008 until November 2010 where he was responsible for information technology,
public relations, strategy and business development, K-12 differentiated instruction pilots, and content management system development.
From July 2007 until April 2008 he served as the Chief Operating Officer and Executive Vice President at The Greenspun Companies, where
he had general management responsibility of the company’s magazine and companion web site businesses. Prior to that from January
2006 to July 2007, he held positions with MTV Networks (MTVN) as a Senior Vice President of both Operations and Consumer Products. Prior
to MTVN from August 1999 to June 2004, Mr. Ask served PRIMEDIA’s Consumer Magazine Group as Chief Operating Officer, where he managed
the Direct Response Advertising Group, Manufacturing, Production, Distribution, IT, Strategy, Business Development, Global Sourcing, and
at times Circulation. He was also President of PRIMEDIA Consumer Magazine Internet Group during that term. Prior to joining PRIMEDIA,
Mr. Aks was a partner with the Booz Allen Hamilton consulting firm where he specialized in business growth, operations strategy and restructuring
in the media, education, telecommunications and consumer goods industries. Mr. Aks holds a BS in Manufacturing/Industrial Engineering
and a B.A. in Business Administration from Rutgers University and earned an MBA from the Harvard University Graduate School of Business
Administration, where he graduated with second-year honors.
Daniel Slivkin
is co-founder and Chief Executive Officer of Vidazoo, which was acquired by us in October 2021. Mr. Slivkin has been leading Vidazoo’s
business and general management since 2014. Since Vidazoo’s acquisition by Perion, Mr. Slivkin has been responsible for the growth
and strategy of the online video business monetization at Perion. Prior to co-founding Vidazoo, Mr. Slivkin was involved in several
startups and has worked in several key business and marketing roles in private technology companies. Mr. Slivkin holds a B.A. in Business
Management from the University of Derby, IL.
65
Gal Dagan
is co-founder and VP Research and Development of Vidazoo. Since Vidazoo’s acquisition by Perion in October 2021, Mr. Dagan has been
leading the Product Technology vision of Vidazoo. Mr. Dagan holds a B.Sc. Engineering Management, major in IT systems and
B.Sc. Economics Management, both from the Technion – Israel Institute of Technology (graduated with honors).
There are no family relationships between any of our directors or executive officers.
B.
COMPENSATION
The aggregate direct compensation we paid to our directors and
officers as a group (15 persons) for the year ended December 31, 2022, was approximately $13.2 million, which included approximately
$0.5 million that was set aside or accrued to provide for pension, retirement, severance or similar benefits. This amount includes bonuses
paid to our officers pursuant to our executive bonus plan based on company performance measures, in accordance with our Compensation Policy
for Directors and Officers. This amount does not include expenses we incurred for other payments, including dues for professional and
business associations, business travel and other expenses, and other benefits commonly reimbursed or paid by companies in Israel. In addition,
our directors are reimbursed for expenses incurred in order to attend board of directors or committee meetings.
In the year ended December 31, 2022, we granted our officers (i)
264,000 restricted share units (“RSUs”), which vest over a three-year period; and (ii) 264,000 performance-based share units
(“PSUs”), linked to certain financial KPI’s. These awards were granted under our Equity Incentive Plan, as amended,
formerly known as the 2003 Israeli Share Option Plan (the “Incentive Plan”).
In 2022, we paid each of our non-executive directors $56,250
(following update of the annual fee of our non-executive directors to $62,500, as approved by our shareholders as of June 30, 2022) per
year. Following the approval of the annual general meeting of our shareholders held on December 23, 2020, the annual equity grant structure
to our non-executive directors has been changed from a grant of options to a grant of RSUs, with a variable value based on the role held
by such member of the board of directors. With respect to new appointed directors, such grant shall be made initially upon the initial
election or appointment and on each anniversary of such date. With respect to our incumbent non-executive directors, the initial grant,
was made on February 6, 2021, the date of the first anniversary of the most recent option grant. Such RSU grant was made in lieu (and
not in addition) to the scheduled grant of options to our directors. The RSUs granted are subject to the terms and conditions of the Incentive
Plan and the RSU agreement pursuant to the Incentive Plan. The RSUs shall vest on a quarterly basis, in equal tranches, during the year
following the grant. All unvested RSUs held by a director in office will automatically vest upon a change of control of the Company, which
is defined for this purpose as (i) a merger, acquisition or reorganization of the Company with one or more other entities in which the
Company is not the surviving entity, (ii) a sale of all or substantially all of the assets of the Company, or (iii) a transaction or a
series of related transactions as a result of which more than 50% of the outstanding shares or the voting rights of the Company are beneficially
owned by one person or group (as defined in the SEC rules) (the “Change of Control”). Accordingly, each non-executive director
was granted with an annual RSU grant according to his/her role, with a value as follows:
| • |
chairperson of our audit committee: $110,000; |
| • |
chairperson of our compensation committee: $107,500; |
| • |
chairperson of our nominating and governance committee: $105,000; and |
| • |
other non-executive directors: $97,500. |
The compensation we paid to our chairman of the board of directors,
Mr. Kaplan, for the year ended December 31, 2022 was $112,500, (following update of the annual fee of our chairman of the board of
directors to $125,000, as approved by our shareholders as of June 30, 2022) plus VAT, paid in four quarterly payments and reimbursement
of out-of-pocket expenses incurred in connection with Mr. Kaplan’s services as chairman. Mr. Kaplan is also entitled for indemnification
and liability insurance as provided to other members of the board of directors. Mr. Kaplan’s services agreement also includes customary
non-disclosure, non-compete, and ownership assignment of intellectual property undertakings.
Following the approval of the extraordinary general meeting of
our shareholders held on August 2, 2018, Mr. Kaplan was granted with a one-time grant of options to purchase 66,666 Ordinary Shares, with
a 3-year vesting schedule, commencing on May 9, 2018 (the “August 2018 Grant”). In addition, following the approval of the
annual general meeting of our shareholders held on February 6, 2020, and subject to the continued engagement as our chairman of the board
of directors, Mr. Kaplan was granted with a one-time grant of options to purchase 90,000 Ordinary Shares with a 3-year vesting schedule
(the options will vest quarterly in equal tranches over a three-year period), commencing on May 9, 2021, at an exercise price per share
equal to the average stock market price of the 90 days period preceding the date of the general meeting of our shareholders, as reported
by the Nasdaq Stock Market (together with August 2018 Grant, the “Chairperson’s Previous Grants”). The options granted
are subject to the terms and conditions of the Incentive Plan and the option agreement pursuant to the Incentive Plan. Upon removal of
Mr. Kaplan from office either by a vote of the board of directors or by a vote of the Company’s shareholders, either (i) as a direct
result of the negotiation of a Change of Control; or (ii) within six months following a Change of Control event (for the avoidance of
doubt, in both (i) and (ii), other than for “cause” – as such term defined in the Incentive Plan) all unvested options
shall automatically be accelerated and become fully vested on the effective date of any such event described in either (i) or (ii).
66
Following the approval of the annual general meeting of our shareholders
held on December 23, 2020, the equity grant structure to Mr. Kaplan, our chairperson of the board of directors, was changed as well, from
grant of option to grant of RSUs. Accordingly, Mr. Kaplan was granted an annual grant with a value of up to $200,000, such annual grant,
which shall be made in the form of RSUs, shall be equal to the difference between the fair market value per vesting annum of the Chairperson’s
Previous Grants and the approved cap of $200,000. The initial grant was made on February 6, 2021. With respect to new appointed chairperson
of our board of directors, such grant shall be made initially upon the initial election or appointment and on each anniversary of such
date. The RSUs granted are subject to the terms and conditions of the Incentive Plan and the RSU agreement pursuant to the Incentive Plan.
The RSUs shall vest on a quarterly basis, in equal tranches, during the year following the grant. All unvested RSUs held by a chairperson
in office will automatically vest upon a Change of Control event. In addition, the Company’s shareholders approved a one-time special
grant of 19,000 fully vested RSUs. The grant date of the special grant is the date of our board of directors’ approval which occurred
on October 27, 2020.
The table below reflects the compensation granted to our five most
highly compensated office holders during or with respect to the year ended December 31, 2022. We refer to the five individuals for
whom disclosure is provided herein as our “Covered Executives.”
For purposes of the table below, “compensation” includes
salary cost, bonuses, equity-based compensation, retirement or termination payments, benefits and perquisites such as car, phone and social
benefits and any undertaking to provide such compensation. All amounts reported in the table are in terms of cost to the Company, as recognized
in our financial statements for the year ended December 31, 2022, including the compensation paid to such Covered Executive following
the end of the year in respect of services provided during the year. Each of the Covered Executives was covered by our DO liability
insurance policy and was entitled to indemnification and exculpation in accordance with applicable law and our articles of association.
All numbers below are in US Dollars in thousands.
|
Name and Principal Position (1)
|
Salary Cost (2)
|
Bonus (3)
|
Equity-Based
Compensation (4) |
Total |
||||||||||||
|
Doron Gerstel, Chief Executive Officer |
755 |
1,312 |
1,711 |
3,778 |
||||||||||||
|
Tal Jacobson, General Manager, CodeFuel Business Unit
|
455 |
826 |
549 |
1,830 |
||||||||||||
|
Maoz Sigron, Chief Financial Officer |
368 |
560 |
837 |
1,765 |
||||||||||||
|
Daniel E. Aks, President, Undertone Business Unit |
540 |
625 |
459 |
1,624 |
||||||||||||
|
Gal Dagan, Co-Founder and VP RD, Vidazoo Business Unit
|
486 |
273 |
675 |
1,435 |
||||||||||||
(1) Unless otherwise indicated herein, all Covered Executives are employed on a full-time
(100%) basis.
67
(2) Salary cost includes the Covered Executive’s gross salary plus payment of
social benefits made by the Company on behalf of such Covered Executive. Such benefits may include, to the extent applicable to the
Covered Executive, payments, contributions and/or allocations for savings funds (e.g., Managers’
Life Insurance Policy), education funds (referred to in Hebrew as “keren hishtalmut”),
pension, severance, risk insurances (e.g., life, or work disability insurance), payments for social
security and tax gross-up payments, vacation, car, medical insurances and benefits, phone, convalescence or recreation pay and other benefits
and perquisites consistent with the Company’s policies.
(3) Annual bonuses granted to the Covered Executives based on formulas set forth in
the annual compensation plan approved by compensation committee and of the board and the board of directors.
(4) Represents the equity-based compensation expenses recorded in our consolidated
financial statements for the year ended December 31, 2022. Such numbers are based on the RSU or option grant date fair value in accordance
with accounting guidance for equity-based compensation and does not necessarily reflect the cash proceeds to be received by the applicable
officer upon the vesting and sale of the underlying shares. For a discussion of the assumptions used in reaching this valuation, see Note
2 to our Financial Statements.
Compensation Terms of our Chief Executive Officer
Doron Gerstel has served as our Chief Executive Officer since April 2017 and as a director
of the Company since May 2018. On February 8, 2023, Doron Gerstel announced his intention to step down from his position as our Chief
Executive Officer effective as of August 1, 2023, and is expected to maintain his position as member of our board of directors. As the
Chief Executive Officer, Doron Gerstel’s monthly base salary is NIS 160,000 (equivalent to approximately $45,467), effective as
of June 30, 2022, as approved by the annual general meeting of our shareholders held on June 30, 2022. Mr. Gerstel is also entitled
to customary benefits (including those mandated by applicable law and/or generally provided to other executive officers of the Company),
including managers’ insurance or pension arrangement, disability insurance, severance pay (pursuant to Section 14 of the Severance
Pay Law), educational savings fund, private health insurance, indemnification, liability insurance (including for the period of seven
years following termination), convalescence pay, meal plan, cellular telephone. personal computer and travel expenses. Mr. Gerstel is
not compensated for his role as director.
Mr. Gerstel is also entitled to a target annual cash bonus of up to
a maximum of twelve (12) monthly salaries, or eighteen (18) in case of over achievement, subject to performance matrix to be approved
by the Company’s compensation committee and board of directors on an annual basis, while up to 25% of such annual bonus may be discretionary
and not subject to measurable performance indexes. In addition, our compensation committee and the board of directors are authorized to
grant Mr. Gerstel, from time to time, a special bonus in accordance with and subject to our Compensation Policy for Directors and Officers.
At the annual general
meeting of our shareholders held on June 30, 2022, Mr. Gerstel was granted (i) 150,000 RSUs, which vest over a three-year period commencing
as of April 1, 2022, with a 12-month cliff after which the balance of the RSUs vests on a quarterly basis over the following eight (8)
quarters. (the “2022 RSU Grant”) and (ii) 150,000 PSUs, which vest based on certain financial KPIs. The calculation of the
actual achievement (and accordingly, the actual vesting) for a fiscal year will be made as part of the approval of the Company’s
year-end financial results (as approved by the Board) provided, however, that the PSUs conditioned on the Company's performance in fiscal
year 2022 shall not vest earlier than the first anniversary of the date of grant (the “2022 PSU Grant”). The vesting schedule
of the 2022 RSU Grant and the 2022 PSU Grant fully accelerate in accordance with the acceleration provisions of the awards previously
granted to Mr. Gerstel (with Change in Board Event measured as of the date of the shareholders meeting). Consistent with the previous
awards granted to Mr. Gerstel, the 2022 RSU Grant and 2022 PSU Grant are generally subject to the same terms and conditions of prior grants,
the terms and conditions of the Company’s Incentive Plan and the terms of the grant agreements issued to Mr. Gerstel pursuant to
the Company’s Incentive Plan.
For the purpose of Mr. Gerstel’s employment agreement, “Transaction”
means the occurrence and closing, in a single transaction or in a series of related transactions, of any one or more of the following
events pursuant to the approval or recommendation of the board of directors: (i) a sale or other disposition of 90% or more of the consolidated
assets of the Company and its subsidiaries; (ii) a sale or other disposition of 90% of more of the outstanding securities of the Company
resulting in a Change of Control; or (iii) a merger, consolidation or similar transaction involving 90% of more of the outstanding securities
of the Company, resulting in a Change of Control.
68
“Change of Control” will occur if any person or “group”
of persons becomes the “beneficial owner” (as such terms are used for purposes of Section 13(d) of the U.S. Securities Exchange
Act of 1934, as amended), directly or indirectly, of 35% or more of the outstanding share capital of the Company, excluding a reorganization
resulting in the Company being held by an entity beneficially owned by the holders of the Company’s share capital immediately prior
to the transaction or any Change in Board Event (as defined below).
“Change in Board Event” shall mean any time at which
individuals who, as of April 2, 2017, constitute the board of directors (the “Incumbent Board”) cease for any reason to constitute
at least a majority of the board of directors; provided, however, that any individual becoming a director subsequent to April 2, 2017
whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board but excluding,
for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened (in writing) election
contest with respect to the election or removal of directors or other actual or threatened (in writing) solicitation of proxies or consents
by or on behalf of a person other than the board of directors.
The agreement also includes customary covenants regarding confidentiality,
IP assignment, non-competition and non-solicitation.
The employment term is for an indefinite period. We may terminate
the employment upon 12 months’ prior notice and Mr. Gerstel may resign upon nine months’ prior notice. During the notice period,
Mr. Gerstel will be entitled to all benefits under the employment agreement, including the continued vesting of stock options and RSUs,
even if the Company waives its right to continued service. In the event of termination for “Cause” (as defined in the employment
agreement), we may terminate the employee without prior notice.
We also have employment agreements with our other executive officers.
These agreements usually do not contain any change of control provisions and otherwise contain salary, benefit and non-competition provisions
that we believe to be customary in our industry.
C.
BOARD PRACTICES
Corporate Governance Practices
We are incorporated in Israel and therefore are subject to various
corporate governance practices under the Companies Law, relating to such matters as external directors (or, to the extent applicable,
the provisions of the opt-out from external directors), the audit committee, the internal auditor and approvals of interested party transactions.
These matters are in addition to the ongoing listing conditions of Nasdaq and other relevant provisions of U.S. securities laws. Under
the Nasdaq Listing Rules, a foreign private issuer may generally follow its home country rules of corporate governance in lieu of the
comparable Nasdaq requirements, except for certain matters such as composition and responsibilities of the audit committee. For further
information, see Item 16.G “Corporate Governance.”
Nasdaq Requirements
As required by the Nasdaq Listing Rules, a majority of our directors
are “independent directors” as defined in the Nasdaq Listing Rules.
As contemplated by the Nasdaq Listing Rules, we have an audit committee,
a compensation committee and a nominating and governance committee, all of whose members are independent directors.
See Item 16.G. “Corporate Governance” for exemptions that we have taken
from certain Nasdaq Listing Rule requirements.
Israeli Companies Law
Board of Directors
According to the Companies Law and our articles of association, our board of directors
is responsible, among other things, for:
| • |
establishing our policies and overseeing the performance and activities of our chief executive officer; |
69
| • |
convening shareholders’ meetings; |
| • |
approving our financial statements; |
| • |
determining our plans of action, principles for funding them and the priorities among them, our organizational structure and examining
our financial status; and |
| • |
issuing securities and distributing dividends. |
Our board of directors may exercise all powers and may take all
actions that are not specifically granted to our shareholders. Our board of directors also appoints and may remove our chief executive
officer and may appoint or remove other executive officers, subject to any rights that the executive officers may have under their employment
agreements.
As of March 6, 2023, our board of directors consists of seven directors.
Our directors (other than the directors who were in the position of external directors until August 2019) are elected in three staggered
classes by the vote of a majority of the ordinary shares present and entitled to vote at meetings of our shareholders at which directors
are elected. The members of only one staggered class will be elected at each annual meeting for a three-year term, so that the regular
term of only one class of directors expires annually. Our annual meeting of shareholders is required to be held at least once during every
calendar year and not more than fifteen months after the last preceding meeting. Effective as of August 2019, following our adoption of
the exemption under the Israeli Companies Regulations (Reliefs for Public Companies whose Shares are Listed on a Stock Exchange Outside
of Israel), 2000, or the Regulation, our then director in office who was elected and classified as external directors, Ms. Sarit Firon,
was no longer classified as such under the Companies Law. The transition rules set forth under the Regulation provide that such directors
have the right to remain in office as our directors at their option after the exemption under the Regulation is adopted until the earlier
of such directors’ original end of term of office or the second annual meeting of shareholders after the adoption of the exemption
under the Regulation. Ms. Firon’s term of office expired in January 2020, accordingly our board of directors has re-appointed Ms.
Firon with the term of office that expired as of our 2021 annual meeting of shareholders. Ms. Sarit Firon was re-elected on our 2021 annual
general meeting of shareholders to serve as our director until our 2024 annual general meeting of shareholders, and on June 15, 2022 Ms.
Firon resigned from the Board of Directors.
If the number of directors constituting our board of directors
is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as
nearly equal as possible, but in no case will a decrease in the number of directors constituting our board of directors reduce the term
of any then current director.
Our board of directors may appoint any other person as a director,
whether to fill a vacancy or as an addition to the then current number of directors, provided that the total number of directors shall
not, at any time, exceed seven directors. Any director so appointed shall hold office until the annual meeting of shareholders at which
the term of his class expires, unless otherwise determined by our board of directors. There is no limitation on the number of terms that
a non-external director may serve.
Shareholders may remove a non-external director from office by
a resolution passed at a meeting of shareholders by a vote of the holders of more than two-thirds of our voting power.
A resolution proposed at any meeting of our board of directors
is deemed adopted if approved by a majority of the directors present and voting on the matter. Under the Companies Law, our board of directors
must determine the minimum number of directors having financial and accounting expertise, as defined in the regulations that our board
of directors should have. In determining the number of directors required to have such expertise, the board of directors must consider,
among other things, the type and size of the company and the scope and complexity of its business and operations. Our board of directors
has determined that we require at least one director with the requisite financial and accounting expertise and that Ms. Michal Drayman
has such expertise.
Under the Companies Law, a person, who is, directly or indirectly
subordinated to the chief executive officer of a public company, may not serve as the chairman of its board of directors. In addition,
neither the chief executive officer nor his relative is eligible to serve as chairman of the board of directors (and vice versa), unless
such nomination was approved by a majority of the company’s shareholders for a term not exceeding three years, and either: (i) such
majority included the majority of the voting shareholders (shares held by abstaining shareholders are not considered) which are not controlling
shareholders and have not personal interest regarding the decision; or (ii) the aggregate number of shares voting against the proposal
did not exceed 2% of company voting shareholders. The term can be extended for additional three year terms, in the same manner.
70
External Directors
Under the Companies Law, Israeli companies whose shares have been
offered to the public in or outside of Israel are required to appoint at least two individuals to serve as external directors.
Pursuant to regulations promulgated under the Companies Law, companies
with shares traded on a U.S. stock exchange, including the Nasdaq Global Select Market, may, subject to certain conditions, “opt
out” from the Companies Law requirements to appoint external directors and related Companies Law rules concerning the composition
of the audit committee and compensation committee of the board of directors. In accordance with these regulations, in August 2019, we
elected to “opt out” from the Companies Law requirements to appoint external directors and related Companies Law rules concerning
the composition of the audit committee and compensation committee of the board of directors (the “Opt-Out”).
Under these regulations, the exemptions from such Companies Law
requirements will continue to be available to us so long as: (i) we do not have a “controlling shareholder” (as such term
is defined under the Companies Law), (ii) our shares are traded on a U.S. stock exchange, including the Nasdaq Global Select Market, and
(iii) we comply with the director independence requirements, the audit committee and the compensation committee composition requirements,
under U.S. laws (including applicable Nasdaq Rules) applicable to U.S. domestic issuers.
Committees of the Board of Directors
Our board of directors has established an audit committee, a compensation
committee, an investment committee and a nominating and governance committee.
Audit Committee
Our audit committee is comprised of Ms. Michal Drayman (chairperson),
Mr. Michael Vorhaus and Mr. Rami Schwartz, and operates pursuant to a written charter.
Nasdaq Requirements
Under the listing requirements of the Nasdaq Stock Market, a foreign
private issuer is required to maintain an audit committee that has certain responsibilities and authority. The Nasdaq Listing Rules require
that all members of the audit committee must satisfy certain independence requirements, subject to certain limited exceptions. We have
adopted an audit committee charter as required by the Nasdaq Listing Rules. Our audit committee assists the board of directors in fulfilling
its responsibility for oversight of the quality and integrity of our accounting, auditing and financial reporting practices and financial
statements. Our audit committee is also responsible for the establishment of policies and procedures for review and pre-approval by the
committee of all audit services and permissible non-audit services to be performed by our independent auditor, in order to ensure that
such services do not impair our auditor’s independence. For more information see Item 16.C “Principal Accountant Fees and
Services.” Under the Nasdaq Listing Rules, the approval of the audit committee is also required to effect related-party transactions
that would be required to be disclosed in our annual report.
Companies Law Requirements
Under the Companies Law, the board of directors of a public company
must establish an audit committee. The audit committee must consist of at least three directors who meet certain independence criteria.
The responsibilities of the audit committee under the Companies Law include to identify and address problems in the management of the
company, review and approve interested party transactions, establish whistleblower procedures and procedures for considering controlling
party transactions and oversee the company’s internal audit system and the performance of the internal auditor.
71
Compensation Committee
Pursuant to the Companies Law, the compensation committee of a
public company must be comprised of at least three directors, include all of the external directors (and also the chairman is required
to be an external director), and any other members must satisfy certain independence standards under the Companies Law. Following the
Opt-Out, our compensation committee is comprised of Ms. Joy Marcus (chairperson), Mr. Michael Vorhaus and Mr. Amir Guy, all of whom
satisfy the respective “independence” requirements of the Companies Law, SEC and Nasdaq Listing Rules for compensation committee
members. Our compensation committee meets at least once each quarter, with additional special meetings scheduled when required.
Our compensation committee is authorized to, among other things,
review, approve and recommend to our board of directors base salaries, incentive bonuses, including the specific goals and amounts, stock
option grants, employment agreements, and any other benefits, compensation or arrangements of our executive officers and directors. In
addition, our compensation committee is required to propose for shareholder approval by a special majority, a compensation policy governing
the compensation of office holders based on specified criteria, to review, from time to time, modifications to the said compensation policy
and examine its implementation, and to approve the actual compensation terms of office holders prior to approval thereof by the board
of directors. Our shareholders adopted a new Compensation Policy for Directors and Officers on June 30, 2022. Our compensation committee
also oversees the administration of our Incentive Plan.
Investment Committee
Our investment committee is comprised of Mr. Eyal Kaplan (chairperson),
Ms. Michal Drayman and Mr. Amir Guy. The Investment Committee is responsible for formulating the overall investment policies
of the Company, and establishing investment guidelines in furtherance of those policies. The Committee monitors the management of the
portfolio for compliance with the investment policies and guidelines and for meeting performance objectives over time as well as assist
the board of directors in fulfilling its oversight responsibility for the investment of assets of the company.
Nominating and Governance Committee
Our nominating and governance committee is comprised of Mr. Michael
Vorhaus (chairperson), Mr. Eyal Kaplan, and Ms. Joy Marcus, and operates pursuant to a written charter. It is responsible for making recommendations
to the board of directors regarding candidates for directorships and the size and composition of the board. In addition, the committee
is responsible for overseeing our corporate governance guidelines and reporting and making recommendations to the board concerning corporate
governance matters. Under the Companies Law, nominations for director are generally made by our board of directors but may be made by
one or more of our shareholders pursuant to applicable law and our articles of association.
Internal Auditor
Under the Companies Law, the board of directors of a public company
must appoint an internal auditor nominated based on the audit committee’s recommendation. The role of the internal auditor is to
examine whether a company’s actions comply with the law and proper business procedure. The internal auditor may be an employee of
the company employed specifically to perform internal audit functions but may not be an interested party or office holder, or a relative
of any interested party or office holder, and may not be a member of the company’s independent accounting firm or its representative.
The Companies Law defines an interested party as a substantial shareholder of 5% or more of the shares or voting rights of a company,
any person or entity that has the right to nominate or appoint at least one director or the general manager of the company or any person
who serves as a director or as the general manager of a company. The internal auditor’s term of office shall not be terminated without
his or her consent, nor shall he or she be suspended from such position unless the board of directors has so resolved after hearing the
opinion of the audit committee and after giving the internal auditor a reasonable opportunity to present his or her position to the board
and to the audit committee. Our internal auditor is Ms. Linur Dloomy, CPA, of Brightman Almagor Zohar Co., a member of Deloitte
Touche Tohmatsu.
72
D.
EMPLOYEES
The breakdown of our employees, by department, as of the end of
each of the past three fiscal years is as follows:
|
December 31, |
||||||||||||
|
2020 |
2021 |
2022 |
||||||||||
|
Cost of sales |
73 |
83 |
91 |
|||||||||
|
Research and development |
135 |
115 |
121 |
|||||||||
|
Selling and marketing |
146 |
154 |
150 |
|||||||||
|
General and administration |
63 |
68 |
78 |
|||||||||
|
Total |
417 |
420 |
440 |
|||||||||
As of December 31, 2022, 230 of our employees were located in Israel,
168 of our employees were located in the United States and 42 employees were located in Europe.
In Israel we are subject to certain labor statutes and national
labor court precedent rulings, as well as to some provisions of the collective bargaining agreements. These provisions of collective bargaining
agreements apply to our Israeli employees by virtue of extension orders issued in accordance with relevant labor laws by the Israeli Ministry
of Economy and Industry, and which apply such provisions under the extension orders to certain or all Israeli employees including our
employees even though they are not directly part of a union that has signed a collective bargaining agreement. The laws and labor court
rulings that apply to our employees principally concern, among others, minimum wage laws, procedures for dismissing employees, determination
of severance pay, leaves of absence (such as annual vacation or maternity leave), sick pay and other conditions for employment. The extension
orders which apply to our employees principally concern, among others, the requirement for the length of the workday and the work-week,
annual recuperation pay and commuting expenses, and payments to pension funds. As mentioned above, we are required to insure all of our
employees by a comprehensive pension plan or a managers’ insurance according to the terms and the rates detailed in the extension
order. In addition, Israeli laws determine minimum wages for workers, minimum paid leave or vacation, sick leave, working hours and days
of rest, insurance for work-related accidents, determination of severance pay, the duty to give notice of dismissal or resignation and
other benefits and terms of employment. We have never experienced a work stoppage, and we believe our relations with our employees are
good.
Israeli law generally requires the payment of severance by employers
upon the retirement or death of an employee or upon termination of employment by the employer or, in certain circumstances, by the employee.
Substantially all of our agreements with employees in Israel contain an arrangement made in accordance with Section 14 of the Severance
Pay Law, 1963 (“Section 14”), where our contributions for severance pay are paid in lieu of any severance liability. Upon
termination of employment, for any reason, and subject to contribution of the employee’s entire monthly salary as of the commencement
date of his/her employment, and release of the policy to the employee, no additional severance payments are required to be made by us
to the employee. Additionally, the related obligation and amounts deposited pursuant to such obligation are not stated on the balance
sheet, as we are legally released from any obligation to employees once the deposit amounts have been paid.
Furthermore, Israeli employees and employers are required to pay
predetermined sums to the National Insurance Institute, which covers, amongst other benefits, payments for state retirement benefits and
survivor benefits (similar to the United States Social Security Administration), as well as state unemployment benefits. These amounts
also include payments for national health insurance. The payments to the National Insurance Institute can equal up to approximately 19.6%
of wages subject to a cap if an employee’s monthly wages exceed a specified amount, of which the employee contributes up to approximately
12% and the employer contributes approximately 7.6%.
E.
SHARE OWNERSHIP
Security Ownership of Directors and Executive Officers
The following table sets forth information regarding the beneficial
ownership of our ordinary shares as of March 6, 2023 by all of our directors and executive officers as a group and by each officer and
director who beneficially owns 1% or more of our outstanding ordinary shares.
Beneficial ownership of shares is determined in accordance with
the rules of the SEC and generally includes any shares over which a person exercises sole or shared voting or investment power. Ordinary
shares that are subject to warrants, RSUs or stock options that are vested or will vest within 60 days of a specified date are deemed
to be outstanding and beneficially owned by the person holding the stock options for the purpose of computing the percentage ownership
of that person, but are not treated as outstanding for the purpose of computing the percentage of any other person.
73
Except as indicated in the footnotes to this table, each officer
and director in the table has sole voting and investment power for the shares shown as beneficially owned by them. Percentage ownership
is based on 46,524,574 ordinary shares outstanding as of March 6, 2023 (such amount excludes 115,339 Ordinary Shares held by the Company).
|
Name |
Number of Ordinary Shares Beneficially Owned |
Percentage of Ordinary Shares Outstanding |
||||||
|
All directors and officers as a group (12 persons) (1)
|
457,685 |
0.98 |
% | |||||
| (1) |
Includes 279,754 RSUs and options to purchase ordinary shares that are vested or will vest within 60 days of March 6, 2023.
|
Employee Benefit Plans
The Incentive Plan, our current equity incentive plan, was initially
adopted in 2003, providing certain tax benefits in connection with stock-based compensation under the tax laws of Israel and the United
States. On November 8, 2022 our board of directors approved to extend the term of the Incentive Plan for an additional period of two years,
expiring on December 9, 2024. Please also see Note 11 to our Financial Statements for information on the options and RSUs issued
under the Incentive Plan.
Under the Incentive Plan, as amended from time to time, we may
grant to our directors, officers, employees, consultants, advisers, service providers and controlling shareholders options to purchase
our ordinary shares, restricted shares and RSUs. As of December 31, 2022, a total of 3,657,185 ordinary shares were subject to the
Incentive Plan. As of March 6, 2023, 3,572,969 RSUs and options to purchase our ordinary shares were outstanding under our Incentive Plan,
of which RSUs and options to purchase a total of 1,191,373 ordinary shares were held by our directors and officers (12 persons) as a group.
The outstanding options are exercisable at purchase prices which range from $5.35 to $6.56 per share. RSUs are exercisable at a price
of $0.01 per share. Any expired or cancelled options or RSUs are available for reissuance under the Incentive Plan.
Our Israeli employees and directors may be granted awards under
Section 102 (“Section 102”) of the Israeli Income Tax Ordinance [New Version], 1961 (the “Ordinance”), which provides
them with beneficial tax treatment, and non-employees (such as service providers, consultants and advisers) and controlling shareholders
may only be granted awards under section 3(i) of the Ordinance, which does not provide for similar tax benefits. In order to be eligible
for tax benefits under Section 102, the securities must be issued through a trustee, and if held by the trustee for the minimum required
period, the employees and directors are entitled to defer any taxable event with respect to the award until the earlier of (the “Exercise
Date”) (i) the transfer of securities from the trustee to the employee or director or (ii) the sale of securities to a third
party. Our board of directors has resolved to elect the “Capital Gains Route” (under Section 102) for the grant of awards
to Israeli grantees under the Company's incentive plan. Based on such election, and subject to the fulfillment of the conditions of Section
102, under the Capital Gains Route, gains realized from the sale of shares issued pursuant to the Incentive Plan will generally be taxed
at the capital gain tax rate of 25%, provided the trustee holds the securities for 24 months following the date of grant of the award.
To the extent the conditions of Section 102 are not met, tax will be payable at the Exercise Date at the marginal income tax rate applicable
to the employee or director (47% in 2023 and additional National Security contributions). In addition, in certain circumstances, an excess
tax of 3% will be imposed as well. We are not entitled to deduct for Israeli tax purposes the expenses recorded with respect to grant
of awards on the “Capital Gains Route.” However, in case the employee has an ordinary income component under section 102(b)(3)
of the Ordinance, that component is deductible by the company for tax purposes. The voting rights of any shares held by the trustee under
Section 102 remain with the trustee.
74
The Incentive Plan contains a U.S. addendum that provides for the
grant of awards to U.S. citizens and resident aliens of the United States for U.S. tax purposes. Pursuant to the approval of our board
of directors and shareholders, stock options granted to U.S. citizens and resident aliens may be either incentive stock options under
the Internal Revenue Code of 1986, as amended (the “Code”) or nonqualified options that do not qualify as incentive stock
options. Subject to the fulfillment of the applicable conditions of the Code, an incentive stock option may provide tax benefits to the
holder in that it converts ordinary income into income taxed at capital gain rates and defers the tax until the sale of the underlying
share. In that event, we would not recognize a tax deduction with respect to such capital gain. The incentive stock options issued under
our Incentive Plan are not qualified stock options under the Code.
Our board of directors has the authority to administer, and to grant awards, under the
Incentive Plan. However, the compensation committee appointed by the board provides recommendations to the board with respect to the administration
of the plan. Generally, RSUs and options granted under the Incentive Plan vest over a period of three years following the grant date
See Item 6.B. “Compensation” for a description of awards granted under the
Incentive Plan to our directors and officers in 2022.
ITEM 7. MAJOR
SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A.
MAJOR SHAREHOLDERS
The following table sets forth information with respect to the
beneficial ownership of our shares as of March 6, 2023, by each person or entity known by us to beneficially own 5% or more of our outstanding
Ordinary Shares.
Beneficial ownership of shares is determined in accordance with
the Exchange Act and the rules promulgated thereunder, and generally includes any shares over which a person exercises sole or shared
voting or investment power. Ordinary Shares that are issuable pursuant to an outstanding right within 60 days of a specified date are
deemed to be outstanding and beneficially owned by the person holding the right for the purpose of computing the percentage ownership
of that person, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
For the purpose of calculating the percentage of shares beneficially
owned by any shareholder, this table lists the applicable percentage ownership based on 46,524,574 Ordinary Shares issued and outstanding
as March 6, 2023 (such amount excludes 115,339 Ordinary Shares held by the Company).
Except as indicated in the footnotes to this table, to our knowledge,
the shareholder in the table has voting and investment power for the shares shown as beneficially owned by such shareholder, except to
the extent the power is shared by spouses under community property law. Our major shareholder does not have different voting rights than
our other shareholders. The information in the table below with respect to the beneficial ownership of shareholders is based on the public
filings of such shareholders with the SEC through March 6, 2023 and information provided to us by such shareholders.
|
Name of Beneficial Owner |
Shares Beneficially Owned |
|||||||
|
Number |
Percentage |
|||||||
|
Harel Insurance Investments Financial Services Ltd.
(1) |
2,352,922 |
5.06 |
% | |||||
(1) Based solely upon, and qualified in its entirety with reference to, Amendment
No.1 to Schedule 13G/A filed with the SEC on January 17, 2023, by Harel Insurance Investments Financial Services Ltd. of the 2,352,922
Ordinary Shares reported as beneficially owned by Harel Insurance Investments Financial Services Ltd. (i) 2,317,967 Ordinary Shares
are held for members of the public through, among others, provident funds and/or mutual funds and/or pension funds and/or insurance policies
and/or exchange traded funds, which are managed by subsidiaries of Harel Insurance Investments Financial Services Ltd., each of
which subsidiaries operates under independent management and makes independent voting and investment decisions, (ii) 34,712 Ordinary Shares
are held by third-party client accounts managed by a subsidiary of Harel Insurance Investments Financial Services Ltd. as portfolio
managers, which subsidiary operates under independent management and makes independent investment decisions and has no voting power in
the securities held in such client accounts, and (iii) 243 Ordinary Shares are beneficially held for its own account. The address of Harel
Insurance Investments Financial Services Ltd. is Harel House; 3 Aba Hillel Street; Ramat Gan 52118, Israel.
75
To our knowledge, the significant changes in the
percentage of ownership held by our major shareholders during the past three years preceding the date of this annual report on Form 20-F
have been: (i) the increase in the percentage of ownership by Harel Insurance Investments Financial Services Ltd. and its third-party
client accounts and various direct or indirect, majority or wholly-owned subsidiaries, above 5% during the year 2022; (ii) the increase
in the percentage of ownership by the Phoenix Holdings Ltd. and its various direct or indirect, majority or wholly-owned subsidiaries,
above 10% and the decrease in the percentage of ownership below 10% during the year 2022 and further decrease in their ownership percentage
below 5% during 2023, according to a written notice provided to us by Phoenix Holdings Ltd. on February 21, 2023; (ii) the decrease in
the percentage of ownership held by Renaissance Technologies LLC and Renaissance Technologies Holdings Corporation below 5% during the
year 2021; (ii) the decrease in the percentage of ownership held by Private Capital Management, LLC below the 5% during the year 2021;
(vi) the decrease in the percentage of ownership held by Benchmark Israel II, L.P. below the 5% during the year 2020; (viii) the increase
in the percentage of ownership held by Private Capital Management, LLC above 5% in 2020; (ix) the increase in the percentage of ownership
held by The Phoenix Holdings Ltd., and its various direct or indirect, majority or wholly-owned subsidiaries, above 5% during the year
2020; and (x) the decrease in the percentage of ownership held by EA2K Ltd. below the 5% during the year 2020.
To our knowledge, as of March 6, 2023, we had 5 shareholders of
record (excluding the Depository Trust Company) all of which were registered with addresses in the United States. These U.S. holders were,
as of such date, the holders of record of approximately 0.02% of our outstanding shares. The number of record holders in the United States
is not representative of the number of beneficial holders nor is it representative of where such beneficial holders are resident since
many of these ordinary shares were held of record by brokers or other nominees.
B.
RELATED PARTY TRANSACTIONS
It is our policy that transactions with office holders or transactions
in which an office holder has a personal interest will be on terms that, on the whole, are no less favorable to us than could be obtained
from independent parties.
See Exhibit 2.1 to this annual report on Form 20-F, which is incorporated
by reference into this annual report on Form 20-F, for a discussion of the requirements of Israeli law regarding special approvals for
transactions involving directors, officers or controlling shareholders.
The following is a description of some of the transactions with
related parties to which we are party and which were in effect within the past three fiscal years. The descriptions provided below are
summaries of the terms of such agreements and do not purport to be complete and are qualified in their entirety by the complete agreements.
Indemnification Agreements
Our articles of association permit us to exculpate, indemnify and
insure our directors and officeholders to the fullest extent permitted by the Companies Law. We have obtained directors’ and officers’
insurance for each of our officers and directors and have entered into indemnification agreements with all of our current officers and
directors.
We have entered into indemnification and exculpation agreements
with each of our current office holders and directors exculpating them to the fullest extent permitted by the law and our articles of
association and undertaking to indemnify them to the fullest extent permitted by the law and our articles of association, including with
respect to liabilities resulting from this annual report, to the extent such liabilities are not covered by insurance. See also Item 10.B.
“Related Party Transactions—Indemnification Agreements.”
Employment and Consulting Agreements
We have or have had employment, consulting or related agreements
with each member of our senior management. For more information on employment and consulting agreements see Item 6.B. “Compensation.”
C.
INTERESTS OF EXPERTS AND COUNSEL
Not applicable.
76
ITEM 8. FINANCIAL
INFORMATION
A.
CONSOLIDATED STATEMENTS AND OTHER FINANCIAL INFORMATION
Our Financial Statements are included in this annual report pursuant to Item 18.
Legal Proceedings
On December 22, 2015, Adtile Technologies Inc. (“Adtile”)
filed a lawsuit against Perion and its wholly-owned subsidiary, Intercept Interactive Inc. (“Intercept”) in the United States
District Court for the District of Delaware. The lawsuit alleges various causes of action against Perion and Intercept related to Intercept’s
alleged unauthorized use and misappropriation of Adtile’s proprietary information and trade secrets. Since Adtile has not commenced
an arbitration or otherwise taken any steps to prosecute its claims, on September 22, 2022, the court has granted Intercept’s motion
and ruled that the case is dismissed without prejudice.
Policy on Dividend Distribution
It is currently our policy not to distribute dividends.
B. SIGNIFICANT CHANGES
None.
ITEM 9. THE
OFFER AND LISTING
A.
OFFER AND LISTING DETAILS
Our ordinary shares have been listed on the Nasdaq Stock Market
since January 2006. Our ordinary shares commenced trading on the TASE on December 4, 2007. Our trading symbol on Nasdaq is “PERI”
and on TASE is “PERION.”
B.
PLAN OF DISTRIBUTION
Not applicable.
C.
MARKETS
See “—Listing Details” above.
D.
SELLING SHAREHOLDERS
Not applicable.
E.
DILUTION
Not applicable.
F.
EXPENSES OF THE ISSUE
Not applicable.
ITEM 10. ADDITIONAL
INFORMATION
A.
SHARE CAPITAL
Not applicable
B.
MEMORANDUM AND ARTICLES OF ASSOCIATION
A copy of our amended and restated articles of association is attached
as Exhibit 1.1 to this annual report on Form 20-F. The information called for by this Item is set forth in Exhibit 2.1 to this annual
report on Form 20-F and is incorporated by reference into this annual report on Form 20-F.
77
C.
MATERIAL CONTRACTS
We have not entered into any material contract within the three
years prior to the date of this Annual Report, other than contracts entered into in the ordinary course of business, or as otherwise described
herein in Item 4.A “History and Development of the Company,” Item 4.B “Business
Overview,” Item 5.B “Operating and Financial Review and Prospects—Liquidity
and Capital Resources,” Item 6.C “Board Practices” and Item 7.B “Related
Party Transactions.”
Bank Mizrahi Credit Facility
On May 10, 2017, ClientConnect, a former Israeli subsidiary of
Perion, which merged into Perion on June 30, 2020, executed a credit facility with Mizrahi Tefahot Bank Ltd. (“Bank Mizrahi”),
an Israeli bank, pursuant to which ClientConnect was permitted to borrow up to $17.5 million. This facility was repaid in full from the
proceeds of the new Bank Mizrahi facility.
On December 17, 2018, ClientConnect executed a new loan facility
with Bank Mizrahi in the amount of $25 million. Proceeds of the loan facility were applied to the refinancing of existing debt of ClientConnect
with Bank Mizrahi as well as existing debt of Undertone with SunTrust Bank. As of March 8, 2021, this credit facility was repaid in full.
Bank Mizrahi 2020 Credit Line
On May 19, 2020, we entered into a short-term secured credit line
in the amount of up to $20 million with Bank Mizrahi, which was scheduled to mature on May 18, 2021. On August 11, 2020, we withdrawn
an amount of $12.5 million from this credit line. Such a withdrawal was a short-term revolving loan for a three-month period. As of December
21, 2020, this credit facility was repaid in full.
D.
EXCHANGE CONTROLS
Non-residents of Israel who hold our ordinary shares are able to
receive any dividends, and any amounts payable upon the dissolution, liquidation and winding up of our affairs, freely repatriable in
non-Israeli currency at the rate of exchange prevailing at the time of conversion. However, Israeli income tax is required to have been
paid or withheld on these amounts. In addition, the statutory framework for the potential imposition of exchange controls has not been
eliminated, and may be restored at any time by administrative action.
E.
TAXATION
The following is a general summary only and should not be considered
as income tax advice or relied upon for tax planning purposes.
ISRAELI TAXATION
THE FOLLOWING DESCRIPTION IS NOT INTENDED TO CONSTITUTE A COMPLETE
ANALYSIS OF ALL TAX CONSEQUENCES RELATING TO THE OWNERSHIP OR DISPOSITION OF OUR ORDINARY SHARES. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR
CONCERNING THE TAX CONSEQUENCES OF YOUR PARTICULAR SITUATION, AS WELL AS ANY TAX CONSEQUENCES THAT MAY ARISE UNDER THE LAWS OF ANY STATE,
LOCAL, FOREIGN OR OTHER TAXING JURISDICTION.
The following is a summary of the material Israeli tax laws applicable
to us, and some Israeli Government programs benefiting us. This section also contains a discussion of some Israeli tax consequences to
persons acquiring our ordinary shares. This summary does not discuss all the aspects of Israeli tax law that may be relevant to a particular
investor in light of his or her personal investment circumstances or to some types of investors subject to special treatment under Israeli
law. Examples of this kind of investor include residents of Israel or traders in securities who are subject to special tax regimes not
covered in this discussion. Since some parts of this discussion are based on new tax legislation that has not yet been subject to judicial
or administrative interpretation, we cannot assure you that the appropriate tax authorities or the courts will accept the views expressed
in this discussion.
The discussion below should not be construed
as legal or professional tax advice and does not cover all possible tax considerations. Potential investors are urged to consult
their own tax advisors as to the Israeli or other tax consequences of the purchase, ownership and disposition of our ordinary shares,
including, in particular, the effect of any foreign, state or local taxes.
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General Corporate Tax Structure in Israel
Taxable income of Israeli companies is generally subject to corporate
tax at the rate of 23% for 2018 and subsequent tax years. However, the effective tax rate payable by a company that derives income from
a Preferred Enterprise (as further discussed below) may be considerably lower.
Under Israeli tax legislation, a corporation is considered as an
“Israeli resident company” under the Ordinance if it meets one of the following: (i) it was incorporated in Israel; or (ii)
the control and management of its business are exercised in Israel.
Foreign Currency Regulations
We are permitted to measure our Israeli taxable income in U.S.
dollars pursuant to regulations published by the Israeli Minister of Finance, which provide the conditions for doing so. We believe that
we meet and will continue to meet, the necessary conditions and as such, we measure our results for tax purposes based on the U.S. dollar/NIS
exchange rate as of December 31st of each year.
Law for the Encouragement of Capital Investments, 1959
The Law for Encouragement of Capital Investments, 1959 (the “Investment
Law”) provides tax benefits for income of Israeli companies meeting certain requirements and criteria. The Investment Law has undergone
certain amendments and reforms in recent years.
The Israeli parliament enacted a reform to the Investment Law,
effective January 2011 (the “2011 Amendment”). The reform introduced new benefits for “Preferred Enterprises”
instead of the benefits granted in accordance with the provisions of the Investment Law in effect prior to the 2011 Amendment. However,
companies entitled to benefits under the Investment Law in effect up to January 1, 2011, which were referred to as an Approved Enterprise
and Benefited Enterprise, were entitled to choose to continue to enjoy such benefits, provided that certain conditions were met, or elect
instead, irrevocably, to forego such benefits and elect the benefits of the Preferred Enterprise. The 2017 Amendment introduced new benefits
for Technological Enterprises, alongside the existing Preferred Enterprise tax benefits. According to the 2011 Amendment, a flat rate
tax applies to companies eligible for the Preferred Enterprise status. In order to be eligible for Preferred Enterprise status, a company
must meet minimum requirements to establish that it contributes to the country’s economic growth and is a competitive factor for
the Gross Domestic Product (a competitive enterprise).
We elected Preferred Enterprise status commencing in 2011 and one
of our Israeli subsidiaries became a Preferred Enterprise in 2017. We believe that the Company and certain of its Israeli subsidiaries,
qualify as a Preferred Technological Enterprise in 2022 and therefore, the portion of the income derived from Preferred Technology Income,
as defined in the Investment Law, which qualifies for the benefits, is subject to a lower tax rate of 12% according to Amendment 73 to
the Law, as described below.
In 2020 the Company elected to implement “Preferred Technological
Enterprise” benefit.
Benefits granted to a Preferred Enterprise’s Preferred Income
include reduced tax rates. In peripheral regions (Development Area A) the reduced tax rate was 7.5% starting from 2017 and thereafter.
In other regions the tax rate was 16% in 2015 and thereafter. Preferred Enterprises in peripheral regions will be eligible for grants
from the Israeli Authority for Investments and Development of the Industry and Economy (the “Investment Center”), as well
as the applicable reduced tax rates.
A dividend distribution from a Preferred Enterprise out of the
“Preferred Income” would be generally subject to 20% withholding tax (in the case of non-Israeli shareholders - subject to
the receipt in advance of a valid certificate from the Israel Tax Authority ("ITA") allowing for such withholding tax rate, 20% or such
lower rate as may be provided under an applicable double tax treaty). Dividend distributions out of “Preferred Income” to
an Israeli company, are not subject to withholding tax (although, if such dividends are subsequently distributed to individuals or a non-Israeli
company the aforesaid will apply).
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In December 2016, the Economic Efficiency Law (Legislative Amendments
for Applying the Economic Policy for the 2017 and 2018 Budget Years), 2016, which includes Amendment 73 to the Law for the Encouragement
of Capital Investments, was published. Amendment 73 prescribes special tax tracks for technological enterprises as described below, and
is in addition to the other existing tax beneficial programs under the Investment Law. On June 30, 2021, certain grandfather rules in
Amendment 73 pertaining the preferred enterprises have expired, most significantly the limitation of Preferred Income to exclude such
which is generated by intangible assets not related to the manufacturing or such that would not have been recognized as Preferred Technological
Income.
Tax benefits under Amendment 73 that became effective on January
1, 2017.
Amendment 73 provides tax benefits for two types of “Technological
Enterprises”, as described below, and is in addition to the other existing tax beneficial programs under the Investment Law.
Amendment 73 applies to “Preferred Technological Enterprise” that meet certain
condition, including, inter-alia, the following:
| ● |
A company's average RD expenses in the three years prior to the current tax year must be greater than or equal to 7% of its
total revenue or exceed NIS 75 million (approximately $22 million) per year; and |
| ● |
A company must also satisfy one of the following conditions: (1) at least 20% of the workforce (or at least 200 employees) are employed
in RD; (2) a venture capital investment of an amount approximately equivalent to at least NIS 8 million was previously made in the
company, and the company did not change its type of business after such investment; (3) growth in sales or workforce by an average of
25% over the three years preceding the tax year provided that the company's turnover in the tax year and in each of the previous three
years was at least NIS 10 million; or (4) the number of the company’s employees increased by 25% (on average) or more in the course
of three years, provided that the company employed at least 50 employees in the tax year and in each of the previous three years.
|
| ● |
Companies that do not meet one of the above two conditions may request preliminary approval from the National Authority for Technological
Innovation regarding being companies that own an innovation-promoting enterprise. |
| ● |
A company must qualify as a “Competitive Enterprise” as described under the Investment Law. |
A “Special Preferred Technological Enterprise” is an
enterprise that meets conditions one and two above, and in addition is a part of a group of companies that have total annual consolidated
revenue in excess of NIS 10 billion (approximately $2.9 billion).
A “Preferred Technological Enterprise” satisfying the
required conditions will thereby enjoy a reduced corporate tax rate of 12% on income that qualifies as “Preferred Technological
Income,” as defined in the Investment Law. The tax rate is further reduced to 7.5% for a Preferred Technological Enterprise located
in development area A. In addition, a Preferred Technological Enterprise will enjoy a reduced corporate tax rate of 12% on capital gain
derived from the sale of certain “Benefitted Intangible Assets” (as defined in the Investment Law) to a related foreign company
if the Benefitted Intangible Assets were acquired from a foreign company on or after January 1, 2017 for at least NIS 200 million, and
the sale receives prior approval from the National Authority for Technological Innovation (previously known as the Israeli Office of the
Chief Scientist), to which we refer as IIA.
A “Special Preferred Technological Enterprise” satisfying
the required conditions, will thereby enjoy a reduced corporate tax rate of 6% on “Preferred Technological Income” regardless
of the company’s geographic location within Israel. In addition, a Special Preferred Technological Enterprise will enjoy a reduced
corporate tax rate of 6% on capital gain derived from the sale of certain “Benefitted Intangible Assets” to a related foreign
company if the Benefitted Intangible Assets were either developed by the Special Preferred Technological Enterprise or acquired from a
foreign company on or after January 1, 2017, and the sale received prior approval from IIA. A Special Preferred Technological Enterprise
that acquires Benefitted Intangible Assets from a foreign company for more than NIS 500 million will be eligible for these benefits for
at least ten years, subject to certain approvals as specified in the Investment Law.
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Dividends distributed to Israeli shareholders by a Preferred Technological
Enterprise or a Special Preferred Technological Enterprise, paid out of Preferred Technological Income, are generally subject to withholding
tax at source at the rate of 20% (in the case of non-Israeli shareholders - subject to the receipt in advance of a valid certificate from
the ITA allowing for such withholding tax rate or such lower rate as may be provided in an applicable tax treaty). However, if such dividends
are paid to an Israeli company, no tax is required to be withheld (although, if such dividends are subsequently distributed to individuals
or a non-Israeli company the aforesaid will apply). If more than 90% of the Preferred Technological Enterprise or Special Preferred Technological
Enterprise are held by foreign company shareholders and other conditions are met, such dividends, distributed to a foreign company, will
be subject to a 4% withholding tax rate (or a lower rate under a tax treaty, if applicable, subject to the receipt in advance of a valid
certificate from the ITA allowing for a reduced tax rate).
We believe that we and our Israeli subsidiary Vidazoo are qualified
as a “Preferred Technological Enterprise” in 2021 and 2022, and subject to a lower tax rate of 12% according to Amendment
73 to the Law, as described above.
Law for the Encouragement of Industry (Taxes), 1969
We believe that we currently qualify as an “Industrial Company”
within the meaning of the Law for the Encouragement of Industry (Taxes), 1969, or the Industry Encouragement Law. The Industry Encouragement
Law defines “Industrial Company” as a company resident of Israel which was incorporated in Israel, of which 90% or more of
its income in any tax year, other than of income from defense loans, is derived from an “Industrial Enterprise” owned by it
and located in Israel or in the “Area”, in accordance with the definition in section 3A of the Ordinance. An “Industrial
Enterprise” is defined as an enterprise whose major activity in a given tax year is industrial production.
The following corporate tax benefits, among others, are available to Industrial Companies:
| • |
Amortization of the cost of purchased know-how, patents, and right to use patent or know how, which are used for the development
or promotion of the Industrial Enterprise, over an eight-year period; |
| • |
Under specified conditions, an election to file consolidated tax returns with additional related Israeli Industrial Companies; and
|
| • |
Deduction of expenses related to a public offering in equal amounts over three years. |
Eligibility for the benefits under the Industry Encouragement Law
is not subject to receipt of prior approval from any governmental authority. We cannot assure that we qualify or will continue to qualify
as an “Industrial Company” or that the benefits described above will be available in the future.
Taxation of our Shareholders
Capital Gains Taxes Applicable
to Non-Israeli Resident Shareholders. The Ordinance, generally imposes a capital gains tax on the disposition of capital assets
by non-Israeli tax residents if those assets (i) are located in Israel, (ii) are shares or a right to shares in an Israeli resident corporation,
or (iii) represent, directly or indirectly, rights to assets located in Israel, unless a specific exemption is available or unless a tax
treaty between Israel and the shareholder’s country of residence provides otherwise. The Ordinance distinguishes between real capital
gain and inflationary surplus. The inflationary surplus is a portion of the total capital gain equivalent to the increase of the relevant
asset’s tax basis attributable to an increase in the Israeli consumer price index or, in certain circumstances, a foreign currency
exchange rate, between the date of purchase and the date of disposition. Inflationary surplus is not currently subject to tax in Israel.
The real capital gain is the excess of the total capital gain over the inflationary surplus.
Generally, a non-Israeli resident (whether an individual or a corporation)
who derives capital gains from the sale of shares in an Israeli resident company purchased upon or after the registration of the shares
on the TASE or on a regulated market outside of Israel (such as Nasdaq) should be exempt from Israeli capital gains tax unless, among
others, (i) the shares were held through a permanent establishment that the non-Israeli resident shareholder maintains in Israel, or (ii)
the Israeli resident company is classified as a real estate investment trust or ceased to be a real estate investment trust (as defined
in the Ordinance). If not exempt, a non-Israeli resident shareholder would generally be subject to tax on capital gain at the ordinary
corporate tax rate (23% in 2022), if generated by a company, or at the rate of 25%, if generated by an individual, or 30%, if generated
by an individual who is a “substantial shareholder” (as defined under the Ordinance), at the time of sale or at any time
during the preceding 12-month period (or if the shareholder claims a deduction for interest and linkage differences expenses in connection
with the purchase and holding of such shares). A “substantial shareholder” is generally a person who alone or together with
such person’s relative or another person who collaborates with such person on a permanent basis, holds, directly or indirectly,
at least 10% of any of the “means of control” of the corporation. “Means of control” generally include, among
others, the right to vote, receive profits, nominate a director or an executive officer, receive assets upon liquidation, or order someone
who holds any of the aforesaid rights how to act, regardless of the source of such right. Individual and corporate shareholders dealing
in securities in Israel are taxed at the tax rates applicable to business income (a corporate tax rate for a corporation (23% in 2022)
and a marginal tax rate of up to 47% for an individual in 2022 (excluding excess tax as discussed below)) unless contrary provisions in
a relevant tax treaty apply. Non-Israeli entities (including corporations) will not be entitled to the foregoing exemption if Israeli
residents, whether directly or indirectly: (i) have a controlling interest of more than 25% in such non-Israeli entity or (ii) are the
beneficiaries of, or are entitled to, 25% or more of the revenue or profits of such non-Israeli entity. Such exemption is not applicable,
inter alia, to a person whose gains from selling or otherwise disposing of the shares are deemed to be business income.
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Additionally, a sale of shares by a non-Israeli resident may be
exempt from Israeli capital gains tax under the provisions of an applicable tax treaty between Israel and the shareholder’s country
of residence. For example, under the Convention Between the Government of the United States and the Government of the State of Israel
with respect to Taxes of Income, as amended, or the United States-Israel Tax Treaty, the disposition of shares by a shareholder who (i)
is a U.S. resident (for purposes of the United States-Israel Tax Treaty), (ii) holds the shares as a capital asset, and (iii) is entitled
to claim the benefits afforded to such person by the United States-Israel Tax Treaty, is generally exempt from Israeli capital gains tax.
Such exemption will not apply, inter alia, if (a) the capital gain arising from such sale, exchange or disposition is attributed to a
permanent establishment that the shareholder maintains in Israel, (b) the shareholder holds, directly or indirectly, shares representing
10% or more of the voting capital of the company at any time in the 12-month period preceding such sale, exchange or disposition, subject
to certain conditions, (c) such U.S. resident is an individual and was present in Israel for a period or periods aggregating to 183 days
or more during the relevant taxable year, (d) the capital gains arising from such sale, exchange or disposition is attributed to real
estate located in Israel, or (e) the capital gain arising from such sale, exchange or disposition is attributed to royalties. In each
case, the sale, exchange or disposition of our ordinary shares would be subject to Israeli tax, to the extent applicable.
Regardless of whether non-Israeli shareholders may be liable for
Israeli capital gains tax on the sale of our ordinary shares, the payment of the consideration may be subject to the withholding of Israeli
tax at source. Shareholders may be required to demonstrate that they are exempt from tax on their capital gains in order to avoid withholding
at source at the time of sale. Specifically, in transactions involving a sale of all of the shares of an Israeli resident company, in
the form of a merger or otherwise, the ITA may require from shareholders who are not liable for Israeli tax to sign declarations in forms
specified by this authority or obtain a specific exemption from the ITA to confirm their status as non-Israeli tax residents, and, in
the absence of such declarations or exemptions, may require the purchaser of the shares to withhold taxes at source.
In addition, with respect to mergers involving an exchange of shares,
Israeli tax law allows for tax deferral in certain circumstances but makes the deferral contingent on the fulfillment of a number of conditions,
including, in some cases, a holding period of two years from the date of the transaction during which sales and dispositions of shares
of the participating companies are subject to certain restrictions. Moreover, with respect to certain share swap transactions in which
the sellers receive shares in the acquiring entity that are publicly traded on a stock exchange, the tax deferral is limited in time,
and when such time expires, the tax becomes payable even if no disposition of such shares has occurred. In order to benefit from the tax
deferral, a pre-ruling from the ITA might be required.
Taxation of Non-Israeli Resident
Shareholders on Receipt of Dividends. Non-Israeli residents (whether individuals or corporations) are generally subject to
Israeli income tax on the receipt of dividends paid on our ordinary shares at the rate of 25%, unless relief is provided under the provisions
of an applicable tax treaty between Israel and the shareholder’s country of residence (provided that a certificate from the ITA
allowing for a reduced withholding tax rate or a tax exemption is obtained in advance). With respect to a person who is a “substantial
shareholder” (described above) at the time of receiving the dividend or on any time during the preceding 12 months, the applicable
tax rate is 30%. Dividends paid on publicly traded shares, like our ordinary shares, to non-Israeli residents, are generally subject to
Israeli withholding tax at a rate of 25%, so long as the shares are registered with a nominee company (whether or not the recipient is
a substantial shareholder), unless a lower rate is provided under an applicable tax treaty (provided that a certificate from the ITA allowing
for a reduced withholding tax rate is obtained in advance). However, a distribution of dividends to non-Israeli residents is generally
subject to withholding tax at source at a rate of 20% if the dividend is distributed from income attributed to a “Preferred Enterprise”
(as such terms are defined in the Law for the Encouragement of Capital Investments, 5719-1959, or the Encouragement Law), subject to the
receipt in advance of a valid certificate from the ITA allowing for a reduced tax rate, or such lower rate as may be provided under an
applicable tax treaty. If such dividends are distributed by a “Preferred Technological Enterprise” or a “Special Preferred
Technological Enterprise”, paid out of “Preferred Technological Income” (as such terms are defined under the Encouragement
Law), to a non-Israeli company that holds, alone or together with other foreign companies, 90% or more in the Israeli company and other
conditions are met, the withholding tax rate will be 4% (or a lower rate under a tax treaty, if applicable, subject to the receipt in
advance of a valid certificate from ITA allowing for a reduced tax rate).
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For example, under the United States-Israel Tax Treaty and subject
to the eligibility to the benefits under such treaty, the maximum rate of tax withheld at source in Israel on dividends paid to a holder
of our ordinary shares who is a U.S. resident (for purposes of the United States-Israel Tax Treaty) is 25%. However, for dividends not
generated by an Preferred Enterprises and paid to a U.S. corporation holding 10% or more of the outstanding voting capital throughout
the tax year in which the dividend is distributed as well as during the previous tax year, the maximum rate of withholding tax is generally
12.5%, provided that not more than 25% of the gross income of the Israeli resident paying corporation for such preceding year consists
of certain types of dividends and interest. Notwithstanding the foregoing, dividends distributed from income attributed to an Preferred
Enterprise are not entitled to such reduction under such tax treaty but are subject to withholding tax at the rate of 20% for such a United
States corporate shareholder (subject to the receipt in advance of a valid certificate from the ITA allowing for a reduced tax rate),
provided that the conditions related to the holding of 10% of our voting capital and to our gross income for the previous year (as set
forth in the previous sentence) are met. The aforementioned rates under the United States-Israel Tax Treaty would not apply if the dividend
income is derived through a permanent establishment of the U.S. resident in Israel.
If the dividend is attributable partly to income derived from a
Preferred Enterprise, and partly to other sources of income, the withholding rate will be a blended rate reflecting the relative portions
of the two types of income. U.S. residents (for purposes of the United States-Israel Tax Treaty) who are subject to Israeli withholding
tax on a dividend may be entitled to a credit or deduction for United States federal income tax purposes up to the amount of the taxes
withheld, subject to detailed rules contained in U.S. tax law.
We cannot assure you that we will designate the profits that we
may distribute in a way that will reduce shareholders’ tax liability.
A non-Israeli resident who receives dividends from which tax was
withheld is generally exempt from the obligation to file tax returns in Israel in respect of such income, provided, inter alia, that (i)
such income was not derived from a business conducted in Israel by the taxpayer, (ii) the taxpayer has no other taxable sources of income
in Israel with respect to which a tax return is required to be filed and (iii) the taxpayer is not obliged to pay excess tax (as further
explained below).
Excess Tax. Individuals
who are subject to tax in Israel (whether any such individual is an Israeli resident or non-Israeli resident) are also subject to an additional
tax at a rate of 3% on annual income exceeding NIS 663,240 for 2022 (which amount is linked to the annual change in the Israeli consumer
price index), including, but not limited to, dividends, interest and capital gain.
Estate and Gift Tax. Israeli tax law
presently does not impose estate or gift taxes.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a description of material U.S. federal income
tax consequences to the U.S. Holders described below of owning and disposing of our ordinary shares, but this discussion does not purport
to be a comprehensive description of all of the tax considerations that may be relevant to a particular person’s decision to own,
or dispose of, our ordinary shares.
This discussion applies only to a U.S. Holder that holds the ordinary
shares as capital assets for U.S. federal income tax purposes (generally, property held for investment). It does not describe all of the
tax consequences that may be relevant in light of a U.S. Holder’s particular circumstances, including the alternative minimum tax,
the Medicare contribution tax on net investment income and tax consequences applicable to U.S. Holders subject to special rules, such
as:
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certain financial institutions; |
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| • |
dealers or traders in securities that use a mark-to-market method of tax accounting; |
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persons holding ordinary shares as part of a straddle, integrated or similar transaction; |
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persons whose functional currency for U.S. federal income tax purposes is not the U.S. dollar; |
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entities classified as partnerships for U.S. federal income tax purposes and their partners; |
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tax-exempt entities, “individual retirement accounts” or “Roth IRAs”; |
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persons who acquired our ordinary shares pursuant to the exercise of an employee stock option or otherwise as compensation;
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persons that own or are deemed to own 10% or more of our stock by voting power or value; or |
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• |
persons holding ordinary shares
in connection with a trade or business outside the United States .If a partnership (or other entity that is classified as a partnership
for U.S. federal income tax purposes) owns ordinary shares, the U.S. federal income tax treatment of a partner will generally depend on
the status of the partner and the activities of the partnership. Partnerships owning ordinary shares and their partners should consult
their tax advisers as to their particular U.S. federal income tax consequences of owning and disposing of ordinary shares.
|
This discussion is based on the Code, administrative pronouncements,
judicial decisions, final, temporary and proposed Treasury regulations, and the income tax treaty between the United States and Israel,
or the Treaty, all as of the date hereof, any of which is subject to change, possibly with retroactive effect.
As used herein, a “U.S. Holder” is a person that is
eligible for the benefits of the Treaty and is, for U.S. federal income tax purposes, a beneficial owner of ordinary shares and:
| • |
a citizen or individual resident of the United States; |
| • |
a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state
therein or the District of Columbia; or |
| • |
an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source. |
This discussion does not address any U.S. federal taxes (such as
estate or gift taxes) other than income taxes, nor does it address any state, local or non-U.S. tax considerations. U.S. Holders should
consult their tax advisers concerning the U.S. federal, state, local and non-U.S. tax consequences of owning and disposing of our ordinary
shares in their particular circumstances.
Taxation of Distributions
This discussion is subject to the discussion under “—Passive Foreign Investment
Company Rules” below.
We currently do not intend to make distributions on the ordinary
shares. Any distributions (other than certain pro rata distributions of ordinary shares) will be treated as dividends to the extent paid
out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Because we do not maintain
calculations of our earnings and profits under U.S. federal income tax principles, it is expected that distributions generally will be
reported to U.S. Holders as dividends. Dividends will not be eligible for the dividends-received deduction generally available to U.S.
corporations under the Code. Subject to applicable limitations, dividends paid on our ordinary shares to certain non-corporate U.S. Holders
may be taxable at a favorable rate, provided that we are not (and are not treated with respect to any U.S. Holder as) a passive foreign
investment company, or PFIC, for our taxable year in which the dividend is paid or the preceding taxable year. Non-corporate U.S. Holders
should consult their tax advisers regarding the availability of this favorable rate in their particular circumstances.
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Dividends will generally be included in a U.S. Holder’s income
on the date of receipt. If any dividend is paid in NIS, the amount of dividend income will be the U.S. dollar amount of the dividend calculated
by reference to the exchange rate in effect on the date of receipt, regardless of whether the payment is in fact converted into U.S. dollars.
If the dividend is converted into U.S. dollars on the date of receipt, a U.S. Holder should not be required to recognize foreign currency
gain or loss in respect of the dividend income. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into
U.S. dollars after the date of receipt. Such gain or loss will generally be treated as U.S.-source ordinary income or loss.
Dividend income will
include any amounts withheld in respect of Israeli taxes and will be treated as foreign-source income. Subject to applicable limitations,
some of which vary depending upon the U.S. Holder’s circumstances, Israeli taxes withheld from dividends on our ordinary shares
generally will be creditable against the U.S. Holder’s U.S. federal income tax liability. The rules governing foreign tax credits
are complex. For example, recently published Treasury regulations provide that, in the absence of an election to apply the benefits
of an applicable income tax treaty, in order for foreign income taxes to be creditable the relevant foreign income tax rules
must be consistent with certain U.S. federal income tax principles, and we have not determined whether the Isreali income tax system
meets these requirements. U.S. Holders should consult their tax advisers regarding the creditability of Israeli taxes in their particular
circumstances. In lieu of claiming a non-U.S. tax credit, U.S. Holders may elect to deduct non-U.S. taxes (including Israeli taxes) in
computing their taxable income, subject to applicable limitations. An election to deduct creditable non-U.S. taxes instead of claiming
foreign tax credits applies to all such non-U.S. taxes paid or accrued in the taxable year.
Sale or Other Taxable Disposition of Ordinary Shares
This discussion is subject to the discussion under “—Passive
Foreign Investment Company Rules” below.
Gain or loss realized on the sale or other taxable disposition
of our ordinary shares will be capital gain or loss and will be long-term capital gain or loss if the U.S. Holder has owned the ordinary
shares for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the
ordinary shares disposed of and the amount realized on the disposition, in each case as determined in U.S. dollars. This gain or loss
will generally be U.S.-source gain or loss for foreign tax credit purposes. The deductibility of capital losses is subject to limitations.
Israeli taxes on capital gains will generally not be eligible for foreign tax credits. U.S. Holders should consult their tax advisers
with respect to the creditability or deductibility of Israeli taxes, if any, on disposition gains in their particular circumstances.
Passive Foreign Investment Company Rules
In general, a non-U.S. corporation is a PFIC for any taxable year
in which (i) 75% or more of its gross income consists of passive income or (ii) 50% or more of the value of its assets (generally determined
on an average quarterly basis) consists of assets that produce, or are held for the production of, passive income. For purposes of the
above calculations, a non-U.S. corporation that owns (or is treated as owning for U.S. federal income tax purposes), directly or indirectly,
at least 25% by value of the shares or equity interests of another corporation or partnership is treated as if it held its proportionate
share of the assets of the other corporation or partnership and received directly its proportionate share of the income of the other corporation
or partnership. Passive income generally includes dividends, interest, rents, royalties and certain gains. Cash is generally a passive
asset for these purposes. Goodwill is generally characterized as a non-passive or passive asset based on the nature of the income produced
in the activity to which the goodwill relates.
We believe that we were not a PFIC for our 2022 taxable year. However,
there can be no assurance that we will not be a PFIC for the current or any future taxable year because our PFIC status is an annual determination
that can be made only after the end of the relevant taxable year and will depend on the composition of our income and assets and the value
of our assets from time to time (including the value of our goodwill, which may be determined, in large part, by reference to the market
price of our ordinary shares, which has been, and may continue to be, volatile). Because the value of our goodwill may be determined by
reference to our market capitalization from time to time, and because we hold and may continue to hold significant amounts of cash and
cash equivalents, our risk of being or becoming a PFIC for any taxable year will increase if our market capitalization declines.
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If we are a PFIC for any taxable year and any of our non-U.S. subsidiaries
or other companies in which we own equity interests is also a PFIC (any such entity, a “Lower-tier PFIC”), a U.S. Holder will
be deemed to own a proportionate amount (by value) of the shares of any Lower-tier PFIC and will be subject to U.S. federal income tax
according to the rules described in the subsequent paragraph on (i) certain distributions by the Lower-tier PFIC and (ii) dispositions
of shares of the Lower-tier PFIC, in each case as if the U.S. Holder held such shares directly, even though the U.S. Holder will not receive
the proceeds of those distributions or dispositions.
In general, if we are a PFIC for any taxable year during which
a U.S. Holder holds ordinary shares, gain recognized by such U.S. Holder on a sale or other disposition (including certain pledges) of
its ordinary shares will be allocated ratably over the U.S. Holder’s holding period. The amounts allocated to the taxable year of
the sale or disposition and to any year before we became a PFIC will be taxed as ordinary income. The amount allocated to each other taxable
year will be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and
an interest charge will be imposed on the resulting tax liability for each such year. Furthermore, to the extent that distributions received
by a U.S. Holder in any taxable year on its ordinary shares exceed 125% of the average of the annual distributions on the ordinary shares
received during the preceding three taxable years or the U.S. Holder’s holding period, whichever is shorter, such distributions
will be subject to taxation in the same manner. If we are a PFIC for any taxable year during which a U.S. Holder owns ordinary shares,
we will generally continue to be treated as a PFIC with respect to the U.S. Holder for all succeeding taxable years during which the U.S.
Holder owns the ordinary shares, even if we cease to meet the threshold requirements for PFIC status. If we are a PFIC for any taxable
year but cease to be a PFIC for subsequent taxable years, U.S. Holders should consult their tax advisers regarding the advisability of
making a “deemed sale” election that will allow them to eliminate the continuing PFIC status under certain circumstances.
Alternatively, if we are a PFIC for any taxable year and if our
ordinary shares are “regularly traded” on a “qualified exchange,” a U.S. Holder can make a mark-to-market election
that will result in tax treatment different from the general tax treatment for PFICs described above. The ordinary shares will be treated
as “regularly traded” for any calendar year in which more than a de minimis quantity of the ordinary shares are traded on
a qualified exchange on at least 15 days during each calendar quarter. Nasdaq, where the ordinary shares are listed, is a qualified exchange
for this purpose. If a U.S. Holder of ordinary shares makes a timely mark-to-market election, the U.S. Holder generally will recognize
as ordinary income any excess of the fair market value of the ordinary shares at the end of each taxable year over their adjusted tax
basis, and will recognize an ordinary loss in respect of any excess of the adjusted tax basis of the ordinary shares over their fair market
value at the end of the taxable year (but only to the extent of the net amount of income previously included as a result of the mark-
to-market election). If a U.S. Holder makes the election, the U.S. Holder’s tax basis in the ordinary shares will be adjusted to
reflect the income or loss amounts recognized. Any gain recognized on the sale or other disposition of ordinary shares in a year in which
we are a PFIC will be treated as ordinary income and any loss will be treated as an ordinary loss (but only to the extent of the net amount
of income previously included as a result of the mark-to-market election, with any excess treated as a capital loss). If a U.S. Holder
of ordinary shares makes a timely mark-to-market election, distributions paid on ordinary shares will be treated as discussed under “—Taxation
of Distributions” above. U.S. Holders should consult their tax advisers regarding the availability and advisability of making a
mark-to-market election in their particular circumstances. In particular, U.S. Holders should consider carefully the impact of a mark-to-market
election with respect to their ordinary shares given that we may have Lower-tier PFICs and that there is no provision in the Code, Treasury
regulations or other official guidance that would permit them to make a mark-to-market election with respect to any Lower-tier PFIC the
shares of which are not “regularly traded” as described above.
We do not intend to provide information necessary for U.S. Holders
to make “qualified electing fund” elections which, if available, would result in tax treatment different from the general
tax treatment for PFICs described above.
If we are a PFIC for any taxable year during which a U.S. Holder owns any ordinary shares,
the U.S. Holder will generally be required to file annual reports with the Internal Revenue Service. U.S. Holders should consult their
tax advisers regarding the determination of whether we are a PFIC for any taxable year and the potential application of the PFIC rules
to their ownership of our ordinary shares.
Information Reporting and Backup Withholding
Payments of dividends and sales proceeds that are made within the
United States or through certain U.S.-related intermediaries may be subject to information reporting and backup withholding, unless (i)
the U.S. Holder is a corporation or other “exempt recipient” and (ii) in the case of backup withholding, the U.S. Holder provides
a correct taxpayer identification number and certifies that it is not subject to backup withholding. Backup withholding is not an additional
tax. The amount of any backup withholding from a payment to a U.S. Holder will be allowed as a credit against the U.S. Holder’s
U.S. federal income tax liability and may entitle it to a refund, provided that the required information is timely furnished to the Internal
Revenue Service.
Certain U.S. Holders who are individuals (or certain specified
entities) may be required to report information relating to their ownership of ordinary shares or non-U.S. accounts through which the
ordinary shares are held. U.S. Holders should consult their tax advisers regarding their reporting obligations with respect to our ordinary
shares.
86
F.
DIVIDENDS AND PAYING AGENTS
Not applicable.
G.
STATEMENT BY EXPERTS
Not applicable.
H.
DOCUMENTS ON DISPLAY
We are subject to the informational requirements of the Exchange
Act that are applicable to foreign private issuers, and under those requirements file reports with the SEC. Those other reports or other
information may be inspected without charge at the locations described above. As a foreign private issuer, we are exempt from the rules
under the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal shareholders
will be exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition,
we are not required under the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC as frequently
or as promptly as United States companies whose securities are registered under the Exchange Act. However, we will file with the SEC,
within 120 days after the end of each subsequent fiscal year, or such applicable time as required by the SEC, an annual report on Form
20-F containing financial statements audited by an independent registered public accounting firm, and will submit to the SEC reports on
Form 6-K containing unaudited quarterly financial information.
Our filings with the SEC are also available to the public through
the SEC’s website at http://www.sec.gov. This site contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC. The information on that website is not part of this annual report on Form 20-F
and is not incorporated by reference herein.
I.
SUBSIDIARY INFORMATION
Not applicable.
J.
ANNUAL REPORT TO SECURITY HOLDERS
Not applicable.
ITEM 11. QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Exchange Rate Risk. A
portion of our revenue and expenses are denominated in foreign currencies. As a result, numerous balances are denominated or linked to
these currencies. Foreign currency related fluctuations resulted in $1.5 million net losses in 2020, $0.5 million net losses in 2021 and
$0.3 million in 2022. These losses are included in financial expenses, net, as presented in our statements of income.
87
As of December 31, 2022, balance sheet financial items in U.S.
dollars, our functional currency, and those currencies other than the U.S. dollars were as follows:
|
U.S. dollars |
NIS |
Other Currencies |
Total |
|||||||||||||
|
In thousands of U.S. dollars |
||||||||||||||||
|
Current assets |
589,485 |
9,013 |
4,960 |
603,458 |
||||||||||||
|
Long-term assets |
1,213 |
3,714 |
901 |
5,828 |
||||||||||||
|
Current liabilities |
(210,074 |
) |
(20,895 |
) |
(1,262 |
) |
(232,231 |
) | ||||||||
|
Long-term liabilities |
(48,239 |
) |
(3,757 |
) |
(480 |
) |
(52,476 |
) | ||||||||
|
Total |
332,385 |
(11,925 |
) |
4,119 |
324,579 |
|||||||||||
In addition, in territories where our prices are based on local
currencies, fluctuations in the dollar exchange rate could affect our gross profit margin. We may compensate for such fluctuations by
changing product prices accordingly. We also hold a small part of our financial investments in other currencies, mainly NIS and Euro.
The dollar value of those investments may decline. A revaluation of 1% of the foreign currencies (i.e. other than U.S. dollar) would not
have a material effect on our income before taxes possibly reducing it by $0.4 million.
A significant portion of our costs, including salaries and office
expenses are incurred in NIS. Inflation in Israel may have the effect of increasing the U.S. dollar cost of our operations in Israel.
If the U.S. dollar declines in value in relation to the New Israeli Shekel, it will become more expensive for us to fund our operations
in Israel. A revaluation of 1% of the New Israeli Shekel will affect our income before tax by approximately 0.4% The exchange rate of
the U.S. dollar to the New Israeli Shekel, based on exchange rates published by the Bank of Israel, was as follows:
|
Year Ended December 31, |
||||||||||||
|
2020 |
2021 |
2022 |
||||||||||
|
Average rate for period |
3.437 |
3.231 |
3.359 |
|||||||||
|
Rate at year-end |
3.215 |
3.110 |
3.519 |
|||||||||
ITEM 12. DESCRIPTION
OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
PART II
ITEM 13. DEFAULTS,
DIVIDEND ARREARAGES AND DELINQUENCIES
None.
ITEM 14. MATERIAL
MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
None.
ITEM 15. CONTROLS
AND PROCEDURES
| (a) |
Disclosure controls and procedures |
Our chief executive officer and chief financial officer, after
evaluating the effectiveness of our disclosure controls and procedures as of December 31, 2022, have concluded that, as of such date,
our disclosure controls and procedures were effective and ensured that information required to be disclosed by us in reports that we file
or submit under the Exchange Act is accumulated and communicated to our management, including our interim chief executive officer and
chief financial officer, to allow timely decisions regarding required disclosure and is recorded, processed, summarized and reported within
the time periods specified by the SEC’s rules and forms.
88
| (b) |
Management annual report on internal control over financial reporting |
Our management is responsible for establishing and maintaining
adequate internal control over our financial reporting and has assessed the effectiveness of our internal control over financial reporting
as of December 31, 2022. In making this assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations
of the Treadway Commission (COSO) in “Internal Control – Integrated Framework” (2013 framework). Our management has
concluded, based on its assessment, that our internal control over financial reporting was effective as of December 31, 2022.
| (c) |
Attestation Report of the Registered Public Accounting Firm |
Kost Forer Gabbay Kasierer, an independent registered accounting
firm and a member firm of Ernst Young, has issued an attestation report on the effectiveness of our internal control over financial
reporting, as stated in their report included herein. See “Report of Independent Registered Public Accounting Firm” on page
F-2.
| (d) |
Changes in internal control over financial reporting |
During the period covered by this report, no changes in our internal
control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) have occurred that
have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 16. RESERVED
ITEM 16A.
AUDIT COMMITTEE FINANCIAL EXPERT
Our board of directors has determined that Ms. Michal Drayman,
who is an independent director (as defined in the Nasdaq Listing Rules) and serves as our chairperson of the audit committee, qualifies
as an “audit committee financial expert” as defined in Item 16A of Form 20-F.
ITEM 16B. CODE
OF ETHICS
Our board of directors has adopted a code of business conduct and
ethics (which was amended in February 2017) applicable to all of our directors, officers and employees as required by the Nasdaq Listing
Rules, which also complies with the definition of a “code of ethics” set out in Section 406(c) of the Sarbanes-Oxley Act of
2002. A copy of the code of ethics can be found on our website at: http://www.perion.com/governance-documents. We granted no waivers
under our code of business conduct and ethics in 2021.
ITEM 16C. PRINCIPAL
ACCOUNTANTING FEES AND SERVICES
Fees for the professional services rendered by our independent
accountants Kost Forer Gabbay Kasierer, a member of Ernst Young Global, for each of the last two fiscal years were as follows
(in thousands):
|
2021 |
2022 |
|||||||
|
Audit Fees |
$ |
568 |
$ |
643 |
||||
|
Tax Fees |
181 |
109 |
||||||
|
Audit Related fees |
394 |
288 |
||||||
|
Total |
$ |
1,143 |
$ |
1,040 |
||||
Audit fees include
fees for professional services rendered by our principal accountant in connection with the annual audit, review of quarterly consolidated
financial data, internationally required statutory audits, consents and assistance with review of documents filed with the SEC.
Tax fees include services
related to tax compliance and claims for refunds, tax planning and advice, including assistance with tax audits and appeals, advice related
to additional efforts required in connection with mergers and acquisitions and assistance with respect to requests for rulings from tax
authorities.
89
Audit-related fees principally
include assistance with audit services and consultations, mainly related to follow-on public offerings, mergers and acquisitions.
Our audit committee provides assistance to our board of directors
in fulfilling its legal and fiduciary obligations in matters involving our accounting, auditing, financial reporting, internal control
and legal compliance functions by pre-approving the services performed by our independent accountants and reviewing their reports regarding
our accounting practices and systems of internal control over financial reporting. Our audit committee also oversees the audit efforts
of our independent accountants and takes those actions that it deems necessary to satisfy itself that the accountants are independent
of management. Our audit committee has authorized all auditing and non-auditing services provided by our independent accountants during 2021
and 2022 and the fees paid for such services.
ITEM 16D. EXEMPTIONS
FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
None.
ITEM 16E. PURCHASES
OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
Not applicable.
ITEM 16F. CHANGE
IN REGISTRANT’S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 16G. CORPORATE
GOVERNANCE
We are a foreign private issuer whose ordinary shares are listed
on the Nasdaq Global Select Market. As such, we are required to comply with U.S. federal securities laws, including the Sarbanes-Oxley
Act, and the Nasdaq Listing Rules, including the Nasdaq corporate governance requirements. The Nasdaq Listing Rules provide that foreign
private issuers may follow home country practice in lieu of certain qualitative listing requirements subject to certain exceptions and
except to the extent that such exemptions would be contrary to U.S. federal securities laws, so long as the foreign private issuer discloses
that it does not follow such listing requirement and describes the home country practice followed in its reports filed with the SEC. Below
is a concise summary of the significant ways in which our corporate governance practices differ from the corporate governance requirements
of Nasdaq applicable to domestic U.S. listed companies:
Shareholder Approval. Although
the Nasdaq Listing Rules generally require shareholder approval of equity compensation plans and material amendments thereto, we follow
Israeli practice, which is to have such plans and amendments approved only by the board of directors, unless such arrangements are for
the compensation of chief executive officer or directors, in which case they also require the approval of the compensation committee and
the shareholders.
In addition, rather than follow the Nasdaq Listing Rules requiring
shareholder approval for the issuance of securities in certain circumstances, we follow Israeli law, under which a private placement of
securities requires approval by our board of directors and shareholders if it will cause a person to become a controlling shareholder
(generally presumed at 25% ownership) or if:
| • |
the securities issued amount to 20% or more of our outstanding voting rights before the issuance; |
| • |
some or all of the consideration is other than cash or listed securities or the transaction is not on market terms; and |
| • |
the transaction will increase the relative holdings of a shareholder that holds 5% or more of our outstanding share capital or voting
rights or will cause any person to become, as a result of the issuance, a holder of more than 5% of our outstanding share capital or voting
rights. |
Shareholder Quorum. The
Nasdaq Listing Rules require that an issuer have a quorum requirement for shareholders meetings of at least one-third of the outstanding
shares of the issuer’s common voting stock. We have chosen to follow home country practice with respect to the quorum requirements
of an adjourned shareholders meeting. Our articles of association, as permitted under the Companies Law, provide that if at the adjourned
meeting a legal quorum is not present after 30 minutes from the time specified for the commencement of the adjourned meeting, then the
meeting shall take place regardless of the number of members present and in such event the required quorum shall consist of any number
of shareholders present in person or by proxy.
90
Executive Sessions. While
the Nasdaq Listing Rules require that “independent directors,” as defined in the Nasdaq Listing Rules, must have regularly
scheduled meetings at which only “independent directors” are present. Israeli law does not require, nor do our independent
directors necessarily conduct, regularly scheduled meetings at which only they are present.
Approval of Related Party Transactions. Although
the Nasdaq Listing Rules require the approval of the audit committee or another independent body of a Company’s board of directors
for all “related party transactions” required to be disclosed pursuant to Item 7.B. of Form 20-F, we follow the provisions
of the Israeli Companies Law. Specifically, that all related party transactions are approved in accordance with the requirements and procedures
for approval of interested party acts and transactions, set forth in sections 268 to 275 of the Israeli Companies Law, and the regulations
promulgated thereunder, which allow for the approval of certain related party transactions, which are immaterial, in the normal course
of business and on market terms, by the board of directors. Other specified transactions can require audit committee approval and shareholder
approval, as well as board approval. See also Exhibit 2.1 to this annual report on Form 20-F, which is incorporated by reference into
this annual report on Form 20-F, for the definition and procedures for the approval of related party transactions.
ITEM 16H. MINE
SAFETY DISCLOSURE
Not applicable.
ITEM 16I. DISCLOSURE
REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTION
Not applicable.
PART III
ITEM 17. FINANCIAL
STATEMENTS
Not applicable.
ITEM 18. FINANCIAL
STATEMENTS
The following financial statements and related auditors’ report are filed as part
of this annual report on Form 20-F:
91
CONSOLIDATED
FINANCIAL STATEMENTS
AS
OF DECEMBER 31, 2022
IN
U.S. DOLLARS
INDEX
|
Page
| |
|
F-2
| |
|
F-6
| |
|
F-7
| |
|
F-8
| |
|
F-9
| |
|
F-10
| |
|
F-12
|
 |
Kost
Forer Gabbay & Kasierer
144
Menachem Begin Road, Building A,
Tel-Aviv
6492102, Israel |
Tel:
+972-3-6232525
Fax:
+972-3-5622555
ey.com
|
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the
Shareholders and the Board of directors of Perion Network Ltd.
Opinion
on the Financial Statements
We
have audited the accompanying consolidated balance sheets of Perion Network Ltd. And its subsidiaries (the Company) as of December 31,
2022 and 2021, the related consolidated statements of income, comprehensive income, changes in shareholders' equity and cash flows for
each of the three years in the period ended December 31, 2022, and the related notes (collectively referred to as the "consolidated financial
statements"). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of
the Company at December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the three years in the period
ended December 31, 2022, in conformity with U.S. generally accepted accounting principles.
We
also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's
internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control-Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), and our report dated March 15, 2023,
expressed an unqualified opinion thereon.
Basis
for Opinion
These
financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s
financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent
with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities
and Exchange Commission and the PCAOB.
We
conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits
included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud,
and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts
and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates
made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable
basis for our opinion.
F
- 2
Critical
Audit Matters
The
critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated
or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial
statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matter does
not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical
audit matter below, providing separate opinions on the critical audit matter or on the accounts or disclosures to which it relate.
|
Revenue
Recognition Gross versus Net presentation | ||
|
Description
of the Matter |
As described in Note
2 to the consolidated financial statements, the Company’s revenue are comprised primarily of Search Advertising Revenue and Display
Advertising Revenue. To determine whether Search Advertising and Display Advertising revenue should be presented on a gross or net basis,
the Company considers whether it controls the promised good or service before transferring that good or service to the customer.
Auditing
the Company's gross or net basis evaluation was complex and required a high degree of auditor judgment due to the significant judgment
and subjectivity used by the Company in determining whether revenue should be presented on a gross or net basis. The significant judgment
was primarily due to the evaluation, for each contract, of whether the Company is the primary obligor in the arrangement.
| |
|
How
We Addressed the Matter in Our Audit |
We
obtained an understanding, evaluated the design and tested the operating effectiveness of internal controls over the Company’s revenue
recognition process, including controls over the review of contracts and assessment of principal versus agent, and controls over the completeness
and accuracy of data.
Our
substantive audit procedures included, among others, reviewing, on a sample basis, the terms of contracts with publishers, evaluating
management’s assessment on the principal versus agent analysis, discussing the terms of contracts with legal and finance personnel
responsible for managing the contractual arrangements and evaluating the related disclosures in the consolidated financial statements.
|
/s/
KOST FORER GABBAY & KASIERER
A
Member of Ernst & Young Global
We
have served as the Company‘s auditor since 2004.
Tel-Aviv,
Israel
March
15, 2023
F
- 3
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the
Shareholders and Board of Directors of Perion Network Ltd.
Opinion
on Internal Control over Financial Reporting
We
have audited Perion Network Ltd. and it's subsidiaries' internal control over financial reporting as of December 31, 2022, based on criteria
established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission
(2013 framework), (the COSO criteria). In our opinion, Perion Network Ltd. And it's subsidiaries' (the Company) maintained, in all material
respects, effective internal control over financial reporting as of December 31, 2022, based on the COSO criteria.
We
also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated
balance sheets of the Company as of December 31, 2022 and 2021, the related consolidated statements of income, comprehensive income, changes
in shareholders' equity and cash flows for each of the three years in the period ended December 31, 2022, and the related notes, and our
report dated March 15, 2023, expressed an unqualified opinion thereon.
Basis
for Opinion
The
Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of
the effectiveness of internal control over financial reporting included in the accompanying Management's Annual Report on Internal Control
over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting
based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company
in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission
and the PCAOB.
We
conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our
audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists,
testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other
procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
F
- 4
Definition
and Limitations of Internal Control Over Financial Reporting
A
company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance
with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because
of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures may deteriorate.
/s/
KOST FORER GABBAY & KASIERER
A
Member of Ernst & Young Global
March
15, 2023
F
- 5
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
BALANCE SHEETS
U.S.
dollars in thousands (except share data)
|
December
31, |
||||||||
|
2022
|
2021
|
|||||||
|
Assets
|
||||||||
|
Current
Assets: |
||||||||
|
Cash
and cash equivalents |
$
|
|
$
|
|
||||
|
Restricted
cash |
|
|
||||||
|
Short-term
bank deposits |
|
|
||||||
|
Accounts
receivable (net of allowance of $ |
|
|
||||||
|
Prepaid
expenses and other current assets |
|
|
||||||
|
Total
Current Assets |
|
|
||||||
|
Property
and equipment, net |
|
|
||||||
|
Operating
lease right-of-use assets |
|
|
||||||
|
Intangible
assets, net |
|
|
||||||
|
Goodwill
|
|
|
||||||
|
Deferred
taxes |
|
|
||||||
|
Other
assets |
|
|
||||||
|
Total
Assets |
$
|
|
$
|
|
||||
|
Liabilities
and Shareholders' Equity |
||||||||
|
Current
Liabilities: |
||||||||
|
Accounts
payable |
$
|
|
$
|
|
||||
|
Accrued
expenses and other liabilities |
|
|
||||||
|
Short-term
operating lease liability |
|
|
||||||
|
Deferred
revenue |
|
|
||||||
|
Short-term
payment obligation related to acquisitions |
|
|
||||||
|
Total
Current Liabilities |
|
|
||||||
|
Long-Term
Liabilities: |
||||||||
|
Long-term
operating lease liability |
|
|
||||||
|
Payment
obligation related to acquisition |
|
|
||||||
|
Other
long-term liabilities |
|
|
||||||
|
Total
Liabilities |
|
|
||||||
|
Commitments
and Contingencies |
||||||||
|
Shareholders'
Equity: |
||||||||
|
Ordinary
shares of ILS |
|
|
||||||
|
Additional
paid-in capital |
|
|
||||||
|
Treasury
shares at cost ( |
(
|
)
|
(
|
)
| ||||
|
Accumulated
other comprehensive loss |
(
|
)
|
(
|
)
| ||||
|
Retained
earnings (Accumulated deficit) |
|
(
|
)
| |||||
|
Total
Shareholders' Equity |
|
|
||||||
|
Total
Liabilities and Shareholders' Equity |
$
|
|
$
|
The
accompanying notes are an integral part of the consolidated financial statements.
F
- 6
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF INCOME
U.S.
dollars in thousands (except share and per share data)
|
|
|
Year
ended December 31, |
| |||||||||
|
|
|
2022
|
|
|
2021
|
|
|
2020
|
| |||
|
Revenue:
|
|
|
|
|
|
|
|
|
| |||
|
Display
Advertising |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
Search
Advertising |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Revenue |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs
and Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of revenue |
|
|
|
|
|
|
|
|
|
|
|
|
|
Traffic
acquisition costs and media buy |
|
|
|
|
|
|
|
|
|
|
|
|
|
Research
and development |
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling
and marketing |
|
|
|
|
|
|
|
|
|
|
|
|
|
General
and administrative |
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
and amortization |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Costs and Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
from Operations |
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial
expenses (income), net |
|
|
(
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
before Taxes on Income |
|
|
|
|
|
|
|
|
|
|
|
|
|
Taxes
on income (benefit) |
|
|
|
|
|
|
|
|
|
|
(
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Income |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Earnings per Share - Basic: |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Earnings per Share - Diluted: |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average number of shares – Basic: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average number of shares – Diluted: |
|
|
|
|
|
|
|
|
|
|
|
|
The
accompanying notes are an integral part of the consolidated financial statements.
F
- 7
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
STATEMENT OF COMPREHENSIVE INCOME
U.S.
dollars in thousands
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Net
income |
$
|
|
$
|
|
$
|
|
||||||
|
Other
comprehensive income (loss): |
||||||||||||
|
Change
in foreign currency translation adjustment |
(
|
)
|
(
|
)
|
|
|||||||
|
Cash
Flow Hedge: |
||||||||||||
|
Unrealized
gain (loss) from cash flow hedges |
(
|
)
|
|
|
||||||||
|
Less:
reclassification adjustment for net gain (loss) included in net income |
|
(
|
)
|
(
|
)
| |||||||
|
Net
change |
(
|
)
|
|
(
|
)
| |||||||
|
Other
comprehensive loss |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Comprehensive
income |
$
|
|
$
|
|
$
|
|
||||||
The
accompanying notes are an integral part of the consolidated financial statements.
F
- 8
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
U.S.
dollars in thousands (except share data)
|
Common
shares |
Additional
paid-in
capital
|
Accumulated
Other
Comprehensive
income
(loss) |
Retained
earnings
(Accumulated
deficit)
|
Treasury
shares
|
Total
shareholders’
equity
|
|||||||||||||||||||||||
|
Number
of
Shares
|
$
|
$
|
$
|
$
|
$
|
$
|
||||||||||||||||||||||
|
Balance
as of December 31, 2019 |
|
|
|
|
(
|
)
|
(
|
)
|
|
|||||||||||||||||||
|
Stock-based
compensation |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Exercise
of stock-based compensation |
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Other
comprehensive loss |
-
|
|
|
(
|
)
|
|
|
(
|
)
| |||||||||||||||||||
|
Net
income |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Balance
as of December 31, 2020 |
|
|
|
|
(
|
)
|
(
|
)
|
|
|||||||||||||||||||
|
Issuance
of shares - Offering |
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Stock-based
compensation |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Exercise
of stock-based compensation |
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Other
comprehensive loss |
-
|
|
|
(
|
)
|
|
|
(
|
)
| |||||||||||||||||||
|
Net
income |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Balance
as of December 31, 2021 |
|
|
|
(
|
)
|
(
|
)
|
(
|
)
|
|
||||||||||||||||||
|
Stock-based
compensation |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Exercise
of stock-based compensation |
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Other
comprehensive loss |
-
|
|
|
(
|
)
|
|
|
(
|
)
| |||||||||||||||||||
|
Net
income |
-
|
|
|
|
|
|
|
|||||||||||||||||||||
|
Balance
as of December 31, 2022 |
|
|
|
(
|
)
|
|
(
|
)
|
|
|||||||||||||||||||
The
accompanying notes are an integral part of the consolidated financial statements.
F
- 9
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF CASH FLOWS
U.S.
dollars in thousands
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Operating
activities: |
||||||||||||
|
Net
income |
$
|
|
$
|
|
$
|
|
||||||
|
Adjustments
required to reconcile net income to net cash provided by operating activities: |
||||||||||||
|
Depreciation
and amortization |
|
|
|
|||||||||
|
Stock-based
compensation expense |
|
|
|
|||||||||
|
Foreign
currency translation |
|
(
|
)
|
|
||||||||
|
Accrued
interest, net |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Deferred
taxes, net |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Accrued
severance pay, net |
(
|
)
|
|
(
|
)
| |||||||
|
Change
in payment obligation related to acquisitions |
(
|
)
|
|
|
||||||||
|
Loss
(gain) from sale of property and equipment |
(
|
)
|
|
|
||||||||
|
Net
changes in operating assets and liabilities: |
||||||||||||
|
Accounts
receivable, net |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Prepaid
expenses and other current assets |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Operating
lease right-of-use assets |
|
|
|
|||||||||
|
Operating
lease liabilities |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Accounts
payable |
|
|
|
|||||||||
|
Accrued
expenses and other liabilities |
|
|
|
|||||||||
|
Deferred
revenue |
(
|
)
|
(
|
)
|
|
|||||||
|
Net
cash provided by operating activities |
$
|
|
$
|
|
$
|
|
||||||
|
Investing
activities: |
||||||||||||
|
Purchases
of property and equipment |
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
| |||
|
Proceeds
from sale of property and equipment |
|
|
|
|||||||||
|
Short-term
deposits, inflows |
|
|
|
|||||||||
|
Short-term
deposits, outflows |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Cash
paid in connection with acquisitions, net of cash acquired |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Net
cash used in investing activities |
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
| |||
|
Financing
activities: |
||||||||||||
|
Issuance
of shares in private placement, net |
$
|
|
$
|
|
$
|
|
||||||
|
Proceeds
from exercise of stock-based compensation |
|
|
|
|||||||||
|
Payments
of contingent consideration |
(
|
)
|
|
|
||||||||
|
Repayment
of long-term loans |
|
(
|
)
|
(
|
)
| |||||||
|
Net
cash provided by (used in) financing activities |
$
|
(
|
)
|
$
|
|
$
|
(
|
)
| ||||
|
Effect
of exchange rate changes on cash and cash equivalents |
(
|
)
|
(
|
)
|
|
|||||||
|
Net
increase in cash and cash equivalents and restricted cash |
$
|
|
$
|
|
$
|
|
||||||
|
Cash
and cash equivalents and restricted cash at beginning of year |
|
|
|
|||||||||
|
Cash
and cash equivalents and restricted cash at end of year |
$
|
|
$
|
|
$
|
|
||||||
The
accompanying notes are an integral part of the consolidated financial statements.
F
- 10
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF CASH FLOWS
U.S.
dollars in thousands
|
|
|
Year
ended December 31 |
| |||||||||
|
|
|
2022
|
|
|
2021
|
|
|
2020
|
| |||
|
Reconciliation
of cash, cash equivalents, and restricted cash to the consolidated
balance sheet |
|
|
|
|
|
|
|
|
| |||
|
|
|
|
|
|
|
|
|
|
| |||
|
Cash
and cash equivalents |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
Restricted
cash |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
cash, cash equivalents, and restricted cash |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
Disclosure of Cash Flow Activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
paid during the year for: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
taxes |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
Interest
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash
investing and financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Creation
of new lease right-of-use assets arising from lease liability |
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
Purchase
of property and equipment on credit |
|
$
|
(
|
) |
|
$
|
|
|
|
$
|
|
|
The
accompanying notes are an integral part of the consolidated financial statements.
F - 11
PERION
NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
|
NOTE 1: |
GENERAL |
Perion
Network Ltd. ("Perion") and its wholly-owned subsidiaries (collectively referred to as the "Company"), is a global technology innovator
in the digital advertising ecosystem, providing brands, agencies and publishers with the holistic ability to identify and measurably reach
their most valuable customers - across all numerous digital channels, including retail media – with high impact creative units that
are orchestrated by its proprietary Intelligent Hub (iHUB). The iHUB which connects the supply and demand sides of the marketplace, and
as a result is capable of bringing Perion and its client’s significant efficiencies.
|
NOTE 2: |
SIGNIFICANT ACCOUNTING POLICIES |
Basis
of consolidation
The
consolidated financial statements include the accounts of Perion and its wholly owned subsidiaries. All intercompany balances and transactions
have been eliminated.
Use
of estimates
The
preparation of the consolidated financial statements in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”)
requires management to make estimates, judgments and assumptions that affect the amounts reported and disclosed in the financial statements
and the accompanying notes. Actual results could differ materially from those estimates. On an ongoing basis, the Company's management
evaluates its estimates, including those related to sales allowances and allowance for credit losses, fair value of intangible assets
and goodwill, useful lives of intangible assets, fair value of share-based awards, realizability of deferred tax assets, tax uncertainties,
and contingent liabilities, among others. Such estimates are based on historical experience
and on various other assumptions that are believed to be reasonable, the results of which form the basis for making judgments about the
carrying values of the Company’s assets and liabilities.
Financial
statements in U.S. dollars
The
reporting currency of the Company is the U.S. dollar (“USD”). Major parts of the Company’s operations are carried out
by the Company and its subsidiaries in the United States and Israel. The functional currency of these entities is the USD.
Accordingly, monetary accounts maintained in currencies other than the USD are remeasured into USD, in accordance with ASC 830, "Foreign
Currency Matters". All transaction gains and losses resulting from the re-measurement of the monetary balance sheet items are reflected
in the statements of income as financial income or expenses, as appropriate.
Management
believes that the USD is the currency of the primary economic environment in which the Company operates. The financial statements of other
subsidiaries, whose functional currency is determined to be their local currency, have been translated into USD. All balance sheet accounts
have been translated using the exchange rates in effect at the balance sheet date. Statement of operations amounts have been translated
using the average exchange rate for each applicable quarter. The resulting translation adjustments are reported as an accumulated other
comprehensive income (loss) component of shareholders' equity.
F - 12
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Cash
and cash equivalents and short-term deposits
The
Company considers all short-term, highly liquid and unrestricted cash balances, with stated maturities of three months or less from date
of purchase, as cash equivalents. Short-term deposits are bank deposits with maturities of more than three months but less than one year
at the date acquired. The short-term deposits as of December 31, 2022 and 2021 are denominated primarily in USD and bear interest at an
average annual rate of 3.82 %
and 0.79 %,
respectively.
Restricted
cash
Restricted
cash is comprised primarily of security deposits that are held to secure the Company’s lease obligations. As of December 31, 2022 and
2021, restricted cash balances were $1,295
and $1,089
respectively.
Accounts
receivable and allowance for credit losses
Accounts
receivables are stated at realizable value, net of an allowance for credit losses. The Company evaluates its outstanding accounts receivable
and establishes an allowance for credit losses based on information available on their credit condition, current aging, historical experience
and future economic and market conditions. These allowances are reevaluated and adjusted periodically as additional information is available.
As
of December 31, 2022 and 2021, the Company has recorded an allowance for credit losses in the amounts of $
Total
expenses for doubtful debts during 2022, 2021 and 2020 amounted to $210 ,
$82
and $323 ,
respectively.
Property
and equipment
Property
and equipment are stated at cost, net of accumulated depreciation and amortization. Depreciation is calculated using the straight-line
method over the estimated useful lives of the assets at the following annual rates:
|
%
|
||||
|
Computers
and peripheral equipment |
|
|||
|
Office
furniture and equipment |
|
|||
Leasehold
improvements are amortized using the straight-line method over the term of the lease or the estimated useful life of the improvements,
whichever is shorter.
Leases
The
Company determines if an arrangement is a lease at inception. Operating leases are included in operating lease right-of-use (“ROU”)
assets, and Short-term and long-term operating lease liabilities in the Company’s consolidated balance sheets.
ROU assets represent the right to use an underlying asset for the lease term and lease liabilities obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at commencement date based on the present value of lease payments over the lease term.
F - 13
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
Company uses incremental borrowing rates based on the estimated rate of interest for collateralized borrowing over a similar term of the
lease payments at commencement date. The operating lease ROU asset also includes any lease payments made and excludes lease incentives.
Lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option.
Lease expenses for lease payments are recognized on a straight-line basis over the lease term.
The Company elected the practical expedient allowing not to separate the lease and non-lease components for its leases.
Intangible
assets
Intangible
assets that are not considered to have finite useful life are amortized over their estimated useful lives. The Customer Relationship,
technology and trade name are amortized over their estimated useful lives in proportion to the economic benefits realized. This accounting
policy results in accelerated amortization of such intangible assets as compared to the straight-line method
Impairment
of long-lived assets, including Right-of-use assets and intangible assets subject to amortization
The
Company’s long-lived assets (assets group) to be held or used, including property and equipment, right of use assets and intangible
assets subject to amortization are reviewed for impairment in accordance with ASC 360, "Accounting for the Impairment or Disposal of Long-Lived
Assets", whenever events or changes in circumstances indicate that the carrying value of an asset may not be recoverable. The recoverability
of these assets is measured by comparing the carrying amounts of the asset (assets group) to the future undiscounted cash flows the assets
are expected to generate. If the long-lived assets are considered to be impaired, the impairment to be recognized equals the amount by
which the carrying value of the asset exceeds its fair market value.
In
determining the fair values of long-lived assets for the purpose of measuring impairment, the Company's assumptions include those that
market participants will consider in valuations of similar assets.
Following an impairment review of our long-lived assets for 2022, 2021 and 2020, it was concluded that no such impairment charges should be recorded.
Goodwill
Goodwill
reflects the excess of the purchase price of business acquired over the fair value of net assets acquired. Goodwill is not amortized but
instead is tested for impairment, in accordance with ASC 350, “Intangibles – Goodwill and Other”, at the reporting unit
level, at least annually at December 31 each year, or more frequently if events or changes in circumstances indicate that the carrying
value may be impaired. Any excess of the carrying amount of the reporting unit over its fair value is recognized as an impairment loss,
and the carrying value of goodwill is written down to fair value.
The
majority of the inputs used in the discounted cash flow model to determine the fair value of the reporting units are unobservable and
thus are considered to be Level 3 inputs. Refer to Note 6 for further information.
F - 14
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Business combinations
The
Company accounted for business combination in accordance with ASC 805, "Business Combinations". ASC 805 requires recognition of assets
acquired, liabilities assumed, and any non-controlling interest at the acquisition date, measured at their fair values as of that date.
Any excess of the fair value of net assets acquired over purchase price is allocated to goodwill. During the measurement period, not to
exceed one year from the date of acquisition, the Company may record adjustments to the assets acquired and liabilities assumed,
with a corresponding offset to goodwill only for adjustments resulting from facts and circumstances that existed as of the acquisition
date. After the measurement period, any subsequent adjustments are reflected in the consolidated statements of income.
Acquisition related costs are expensed to the statement of income in the period incurred.
Revenue recognition
The Company applies the provisions of Accounting Standards Codification 606, Revenue from Contracts with Customers ("ASC 606" or "Topic 606").
The Company applies the practical expedient for incremental costs of obtaining contracts when the associated revenue is recognized over less than one year.
The
Company generates revenue primarily from two major sources:
Display
Advertising Revenue (“Advertising”) - the Company generates advertising revenue from
delivering high impact ad formats through different channels – display, social and video/CTV, creatively designed to capture consumer
attention and drive engagement, across a hand-picked portfolio of websites and mobile applications. The Company also generates advertising
revenue from content optimization solutions and services, which are being recognizes once the advertisement partners serve their advertisement
across owned and operated properties as well as those of the Company publishers. In addition, the Company generates revenue from the use
of its platform in online media channels which connects video and display advertisements derived from advertising partners to advertising
inventory available within its publisher’s network.
Search
Advertising Revenue (“Search Monetization”) -
the Company obtains its search revenue from service agreements with its search partners. Search revenue is generated primarily from monthly
transaction volume-based fees earned by the Company for making its applications available to online publishers and app developers on a
revenue share basis relative to the revenue generated by the search partners.
For
more disaggregated information of revenue refer to Note 16.
The
Company’s payments terms are less than one year. Therefore, no finance component is recognized.
The
Company evaluates whether Search Monetization and Advertising Revenue should be presented on a gross basis, which is the amount that a
customer pays for the service, or on a net basis, which is the amount of the customer payment less amounts the Company pays to publishers.
In making that evaluation, the Company considers whether it controls the promised good or service before transferring that good or service
to the customer. The Company considers indicators such as whether the Company is the primary obligor in the arrangement
F - 15
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Generally, in cases in which the Company controls the specified good or service before it is transferred to a customer, revenue is recorded on a gross basis.
Remaining
performance obligations (RPOs) represent amounts collected on contracted revenue that have not yet been recognized. As of December 31,
2022, the aggregate amount of the RPOs was $2,377 .
The Company anticipates that it will satisfy all of its remaining performance obligation associated with the deferred revenue within the
prospective fiscal year.
Accounts
receivable includes amounts billed and currently due from customers.
Deferred
revenue are recorded when payments are received from customers in advance of the Company's rendering of services.
Revenue recognized
during 2022 from amounts included within the Deferred revenue balance at the beginning of the period amounted to $3,852 .
Cost
of revenue
Cost
of revenue consists primarily of expenses associated with the operation of the Company’s server hosting, data verification and targeting,
campaign creative, labor, as well as content acquisition costs and customer support.
Traffic
acquisition costs and media buy
Traffic acquisition
costs and media buy consist primarily of payments to publishers and developers who distribute the Company’s search properties together
with their products, as well as the cost of distributing the Company own products. In addition, media buy costs consist of the costs of
advertising inventory incurred to deliver ads. Traffic acquisition costs are primarily based on revenue share agreements with the Company
traffic sources and the media buy cost are primarily based on CPC (Cost-per-click) and CPM (Cost-per-thousand), which are charged as incurred.
Research
and development costs
The
Company capitalized certain internal and external software development costs, consisting primarily of direct labor associated with creating
the internally developed software. During 2021, 2020, depreciation expense for the related capitalized internally developed software in
the consolidated statements of income amounted to $
Research and development costs are charged to the statement of income as incurred.
Income
taxes
The
Company accounts for income taxes in accordance with ASC 740, "Income Taxes". This Statement prescribes the use of the liability method,
whereby deferred tax asset and liability account balances are determined based on differences between financial reporting and tax bases
of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected
to reverse. To the extent necessary, the Company provides a valuation allowance to reduce deferred tax assets to their estimated realizable
value.
F - 16
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
Company accounts for uncertain tax positions in accordance with ASC 740, which contains a two-step approach for recognizing and measuring
uncertain tax positions. The first step is to evaluate the tax position taken or expected to be taken in a tax return by determining if
the weight of available evidence indicates that it is more likely than not that the tax position will be sustained on audit, including
resolution of any related appeals or litigation processes. The second step is to measure the tax benefit as the largest amount that is
more than 50% likely to be realized upon ultimate settlement.
Severance
pay
The
Company's agreements with employees in Israel are in accordance with section 14 of the Severance Pay Law, 1963 (“Section 14”),
where the Company's contributions for severance pay is paid to the employee upon termination instead of the severance liability that would
otherwise be payable under the law as aforementioned. Upon contribution to a fund, based on the full amount of the employee's monthly
salary, and release of the fund to the employee, no additional severance payments are required to be made by the Company to the employee.
Therefore, the related obligation and amounts deposited on behalf of such obligation are not stated on the balance sheet, as the Company
is legally released from obligation to such employees once the deposit amounts have been paid.
Severance
expenses for the years ended December 31, 2022, 2021 and 2020 amounted to $2,809 ,
$2,612 ,
and $1,812 ,
respectively. The balances of severance deposits and accrued severance pay are immaterial and included in other assets and other long-term
liabilities on the accompanying balance sheets, respectively.
Employee
benefit plan
The
Company’s U.S. operations maintain a retirement plan (the “U.S. Plan”) that qualifies as a deferred salary arrangement
under Section 401(k) of the Internal Revenue Code. Participants in the U.S. Plan may elect to defer a portion of their pre-tax earnings,
up to the Internal Revenue Service’s annual contribution limit. The Company matches up to 100% of each participant’s contributions,
up to 4% of employee deferral. Contributions to the U.S. Plan are recorded during the year contributed as an expense in the consolidated
statement of income.
Total
employer 401(k) contributions for the years ended December 31, 2022, 2021 and 2020 were $865 ,
$683 ,
and $624 ,
respectively.
Comprehensive
income (loss)
The
Company accounts for comprehensive income (loss) in accordance with ASC 220, "Comprehensive Income". This statement establishes standards
for the reporting and display of comprehensive income and its components in a full set of general purpose financial statements. Comprehensive
income generally represents all changes in shareholders' equity during the period except those resulting from investments by, or distributions
to, shareholders. The Company determined that its other comprehensive income (loss) relates to hedging derivative instruments and foreign
currency translation adjustments.
F - 17
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Net
earnings per share
In
accordance with ASC 260, "Earnings Per Share", basic net earnings per share ("Basic EPS") is computed by dividing net earnings attributable
to ordinary shareholders by the weighted average number of ordinary shares outstanding during the period. Diluted net earnings per share
("Diluted EPS") reflects the potential dilution that could occur if share options, restricted shares and other commitments to issue ordinary
shares were exercised or equity awards vested, resulting in the issuance of ordinary shares that could share in the net earnings of the
Company.
The
weighted average number of ordinary shares related to the outstanding options, restricted shares, convertible debt and warrants excluded
from the calculations of diluted net earnings per ordinary share, as these securities are anti-dilutive, was 456,696 ,
1,035,307 ,
and 3,178,024
for the years ended December 31, 2022, 2021 and 2020, respectively.
Concentrations
of credit risk
Financial
instruments, which potentially subject the Company to a concentration of credit risk, consist primarily of cash and cash equivalents,
bank deposits, restricted cash and accounts receivable.
The
majority of the Company’s cash and cash equivalents, bank deposits and restricted cash are invested in USD instruments with major
banks in the U.S. and Israel. Generally, these deposits may be redeemed upon demand and, therefore, bear minimal risk.
The
Company’s major customers are financially sound, and the Company believes low credit risk is associated with these customers. To
date, the Company has not experienced any material credit losses.
The allowance against gross trade receivables reflects the current expected credit loss inherent in the receivables portfolio determined based on the Company’s methodology. The Company’s methodology is based on historical collection experience, customer creditworthiness, current and future economic condition, and market condition. Additionally, specific allowance amounts are established to record the appropriate provision for customers that have a higher probability of default. Trade receivables are written off after all reasonable means to collect the full amount have been exhausted.
Share-based
compensation
The
Company accounts for share-based compensation under ASC 718, "Compensation - Stock Compensation", which requires the measurement
and recognition of compensation expense based on estimated fair values for all share-based payment awards made to employees, contractors,
and directors. ASC 718 requires companies to estimate the fair value of equity-based awards on the date of grant, using an option-pricing
model. The value of the portion of the award that is ultimately expected to vest is recognized as an expense over the requisite service
periods in the Company's consolidated statement of income. The Company estimates forfeitures to be estimated at the time of grant, and
revised if necessary in subsequent periods, if actual forfeitures differ from those estimates.
The Company
recognizes compensation expenses for the value of its awards, which have graded vesting based on service conditions, using the straight-line
method, over the requisite service period of each of the awards, net of estimated forfeitures. Estimated forfeitures are based on actual
historical pre-vesting forfeitures. For performance-based share units, the Company recognizes compensation expenses for the value of such
awards, if and when the Company concludes that it is probable that a performance condition will be achieved based on the accelerated attribution
method over the requisite service period. The Company reassess the probability of vesting at each reporting period for awards with performance
conditions and adjust compensation cost based on its probability assessment.
F - 18
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
Company accounted for changes in award terms as a modification in accordance with ASC 718.
The
Company estimates the fair value of its new share-based awards using the Binomial option-pricing model.
The
following table presents the various assumptions used to estimate the fair value of the Company's share-based awards granted to employees
and directors in the periods presented:
|
Year
ended December 31 |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Risk-free interest rate
|
|
|
|
|
|
| ||||||
|
Expected volatility
|
)
- |
|
|
|
|
| ||||||
|
Early exercise factor
|
|
|
|
|
|
| ||||||
|
Forfeiture rate post
vesting |
|
|
|
|
|
| ||||||
|
Dividend yield
|
|
|
|
|
|
| ||||||
*)
The
expected volatility is calculated based on the actual historical share price movements of the Company’s share. The expected option
term represents the period that the Company’s share options are expected to be outstanding. The early exercise factor and the forfeiture
rate post-vesting are calculated based on the Company’s estimated early exercise and post-vesting forfeiture multiples, which are
based on comparable companies and on actual historical data. The risk-free interest rate is based on the yield from U.S. Treasury zero-coupon
bonds, with a term which is equivalent to the expected term of the share-based awards. The dividend yield is based on the current decision
of the Company’s management not to distribute any dividends.
The
fair value of restricted share units (“RSU”) is based on the market value of the underlying shares on the date of grant.
F - 19
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Derivative
instruments
The
Company accounts for derivatives and hedging based on ASC 815, "Derivatives and Hedging", which requires recognizing all derivatives on
the balance sheet at fair value. If the derivatives meet the definition of a cash flow hedge and are so designated, depending on the nature
of the hedge, the effective portion of the gain or loss on the derivative is reported as a component of other comprehensive income and
reclassified into earnings in the same period, or periods, during which the hedged transaction affects earnings. The ineffective portion
of a derivative’s change in fair value, if any, is recognized in earnings, as well as gains and losses from a derivative’s
change in fair value that are not designated as hedges are recognized in earnings immediately.
In
order to mitigate the potential adverse impact on cash flows resulting from fluctuations in the exchange rate of the new Israeli shekels
(“ILS”), the Company hedges portions of its forecasted expenses denominated in ILS with SWAP, forward and options contracts.
The Company does not speculate in these hedging instruments in order to profit from foreign currency exchanges, nor does it enter into
trades for which there are no underlying exposures.
To
protect against the increase in value of forecasted foreign currency cash flow resulting mainly from salaries and related benefits paid
in ILS during the year, the Company hedges portions of its anticipated payroll denominated in ILS for a period of one to twelve months
with forward and options contracts (the “Hedging Contracts”). Accordingly, when the USD strengthens against the ILS, the decline
in present value of future ILS currency expenses is offset by losses in the fair value of the Hedging Contracts. Conversely, when the
USD weakens, the increase in the present value of future ILS expenses is offset by gains in the fair value of the Hedging Contracts. These
Hedging Contracts are designated as cash flow hedges.
The Company follows the requirements of ASC No. 815, Derivatives and Hedging (“ASC 815”), which requires companies to recognize all of their derivative instruments as either assets or liabilities on the balance sheet at fair value. The accounting for changes in fair value (i.e. gains or losses) of a derivative instrument depends on whether it has been designated and qualifies as part of a hedging transaction and further, on the type of hedging transaction. For those derivative instruments that are designated and qualify as hedging instruments, a company must designate the hedging instrument, based upon the exposure being hedged, as a fair value hedge, cash flow hedge, or a hedge of a net investment in a foreign operation.
The
notional value of the Company’s derivative instruments designed as hedging instruments as of December 31, 2022 and 2021, amounted
to $
The
notional value of the Company’s derivative instruments not designed as hedging instruments as of December 31, 2022 and 2021, amounted
to $
Fair
value of financial instruments
The
carrying amounts of financial instruments carried at cost, including cash and cash equivalents, short-term deposits, restricted cash,
accounts receivable, and other assets, accounts payable, accrued expenses and other liabilities approximate their fair value due to the
short-term maturities of such instruments.
F - 20
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
Company follows the provisions of ASC No. 820, “Fair Value Measurement” (“ASC 820”), which defines fair value
as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants
at the measurement date.
In
determining a fair value, the Company uses various valuation approaches. ASC 820 establishes a hierarchy for inputs used in measuring
fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable
inputs be used when available. Observable inputs are inputs that market participants would use in pricing an asset or liability, based
on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect assumptions that market participants
would use in pricing an asset or liability, based on the best information available under given circumstances.
The
hierarchy is broken down into three levels, based on the observability of inputs and assumptions, as follows:
|
• |
Level 1 - Observable inputs obtained from independent sources, such as quoted prices for identical assets and liabilities in active markets. | |
|
• |
Level 2 - Other inputs that are directly or indirectly observable in the market place. | |
|
• |
Level 3 - Unobservable inputs which are supported by little or no market activity, and unobservable inputs based on the Company's own assumptions used to measure liabilities at fair value. The inputs require significant management judgment or estimation. |
Treasury
shares
In
the past, the Company repurchased its ordinary shares on the open market. The Company holds the shares as treasury shares and presents
their cost as a reduction of shareholders' equity.
Recently Accounting Pronouncements - not yet adopted
In October 2021 the FASB ASU 2021-08, Topic 805 “Business Combinations” – Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The amendments in this update require that an entity (acquirer) recognize and measure contract assets and contract liabilities acquired in a business combination in accordance with Topic 606. At the acquisition date, an acquirer should account for the related revenue contracts in accordance with Topic 606 as if it had originated the contracts. To achieve this, an acquirer may assess how the acquiree applied Topic 606 to determine what to record for the acquired revenue contracts. The amendments in this update are effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years, and early adoption is permitted. The adoption of the new guidance will have an immaterial impact on its consolidated financial statements.
F - 21
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 3: |
FAIR VALUE OF FINANCIAL
INSTRUMENTS |
The
following table present assets and liabilities measured at fair value on a recurring basis as of December 31, 2022:
|
Fair
value measurements using input type |
||||||||||||||||
|
Level
1 |
Level
2 |
Level
3 |
Total
|
|||||||||||||
|
Assets:
|
||||||||||||||||
|
Derivative assets
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Total
financial assets |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Liabilities:
|
||||||||||||||||
|
Derivative liabilities
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Contingent consideration
in connection to the acquisitions *) |
|
|
|
|
||||||||||||
|
Total
financial liabilities |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
*)
See notes 4a and 4c.
The
following table present assets measured at fair value on a recurring basis as of December 31, 2021:
|
Fair
value measurements using input type |
||||||||||||||||
|
Level
1 |
Level
2 |
Level
3 |
Total
|
|||||||||||||
|
Assets:
|
||||||||||||||||
|
Derivative assets
|
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Total
financial assets |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Liabilities:
|
||||||||||||||||
|
Contingent consideration
in connection to the acquisitions |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Total
financial liabilities |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
F - 22
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 4: |
ACQUISITIONS
|
| a. |
Content IQ LLC |
On
January 14, 2020, the Company consummated the acquisition of Content IQ LLC (“Content IQ”), a privately held company founded
in 2014, based in New York City. Content IQ has created data algorithm and analytics tools that deconstruct content, revenue and distribution
to solve current major digital publishing challenges.
The
total consideration for the acquisition was $37,838 ,
comprised of $15,000
paid in cash at closing and a contingent consideration (with a maximum amount of up to $47,050 ),
tied to revenue and EBITDA-based metrics over a period of two
years , estimated at fair value of $22,838
on the acquisition date. As of December 31, 2022, the contingent consideration is estimated at fair value of $17,820 .
The change in fair value of the contingent consideration was recorded to general and administrative expenses. In addition, the acquisition
includes a retention-based component of up to $11,000 .
| b. |
Pub Ocean |
On
July 22, 2020, the Company acquired the net assets of Pub Ocean Limited, also known as “Pub Ocean” (the “Pub Ocean Acquisition"),
digital publisher-focused technology company with scalable content distribution and real-time revenue analytics technology.
The
total consideration for the acquisition was $13,399 ,
comprised of $4,000
paid in cash at closing and a contingent consideration (with a maximum amount of up to $17,000 ),
tied to financial targets over a two-year
period, estimated at fair value of $9,399
on the acquisition date. In addition, the acquisition includes a retention-based component of up to $1,000 .
As of December 31, 2022, the remaining balance of the contingent consideration was settled. In 2022, the change in fair value of the contingent
consideration that was recorded to general and administrative expenses was $3,816.
| c. |
Vidazoo |
On
October 4, 2021, the Company consummated the acquisition of Vidazoo Ltd., also known as “Vidazoo” (the “Vidazoo Acquisition”),
a leading video technology company that enables both advertisers and publishers to deliver high impact content and advertising to consumers.
The
total consideration for the acquisition was $90,038 ,
comprised of $35,000
paid in cash at closing, contingent consideration (with a maximum amount of up to $58,545 ),
tied to financial targets over a period of 2.25
years, estimated at fair value of $48,903
on the acquisition date, and a net working capital in the amount of $6,135
which will be set-off against collection. As of December 31, 2022, the contingent consideration is estimated at fair value of $45,875 .
F - 23
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
following table summarizes the allocation of the purchase price consideration as of the acquisition date and the adjustment included in
the measurement period adjustment for the transaction noted above:
|
Initially
Reported
as
of
December 31,
2021
|
Measurement
Period
Adjustment
|
December 31,
2022
|
||||||||||
|
Net Assets
|
$
|
|
$
|
|
$
|
|
||||||
|
Technology
|
|
|
|
|||||||||
|
Customer
Relationship |
|
|
|
|||||||||
|
Deferred
Taxes |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Goodwill
|
|
|
|
|||||||||
|
Net
assets acquired |
$
|
|
$
|
|
$
|
|
||||||
The
initially reported amounts presented in the table above pertained to the preliminary purchase price allocation reported in the Company's
2021 financial statements. The measurement period adjustment was primarily associated with the Goodwill and Intangible Assets and Deferred
taxes assets related.
Technology
includes publishing orchestration system with proprietary data algorithms and analytic tools which deconstruct content, revenue and distribution
to solve digital publishing challenges. The technology is amortized over the estimated useful life of 7 years using the straight-line
method.
Customer
relationships is derived from customer contracts and related customer relationships with existing customers. Customer relationships
is amortized based on the accelerated method over the estimated useful life of 8 years.
| NOTE 5: |
PROPERTY AND EQUIPMENT, NET |
|
December
31, |
||||||||
|
2022
|
2021
|
|||||||
|
Cost:
|
||||||||
|
Computers and peripheral
equipment |
$
|
|
$
|
|
||||
|
Office furniture and
equipment |
|
|
||||||
|
Leasehold improvements
|
|
|
||||||
|
Capitalized software
|
|
|
||||||
|
Total cost
|
|
|
||||||
|
Less: accumulated depreciation
and amortization |
(
|
)
|
(
|
)
| ||||
|
Property and equipment,
net |
$
|
|
$
|
|
||||
Depreciation
expenses related to the Company’s property and equipment totaled to $1,954 ,
$3,022 ,
and $4,662 ,
for the years ended December 31, 2022, 2021 and 2020, respectively.
F - 24
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 6: |
GOODWILL AND OTHER INTANGIBLE
ASSETS, NET |
| a. |
Goodwill |
The
changes in the net carrying amount of goodwill in 2022 and 2021 were as follows:
|
Balance
as of January 1, 2021 |
$
|
|
||
|
Acquisition of Vidazoo
|
$
|
|
||
|
Balance
as of December 31, 2021 |
$
|
|
||
|
Vidazoo measurement period
adjustments |
$
|
|
||
|
Balance
as of December 31, 2022 |
$
|
|
Goodwill
has been recorded as a result of prior acquisitions and represents excess of the consideration over the net fair value of the assets of
the businesses acquired. As of December 31, 2022, the Company has two reporting units – Display advertising and Search advertising.
The Company performs tests for impairment of goodwill at the reporting unit level at least annually, or more frequently if events or changes
in circumstances occur that would more likely than not reduce the fair value of a reporting unit below its carrying value.
No impairment
was incurred for the years ended December 31, 2022, 2021 and 2020.
F - 25
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| b. |
Intangible assets, net |
The
following is a summary of intangible assets as of December 31, 2022:
|
December 31,
2021
|
Vidazoo
measurement
period
adjustments
|
Amortization
|
December 31,
2022
|
|||||||||||||
|
Acquired
technology |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Acquired
technology, net |
|
|
(
|
)
|
|
|||||||||||
|
Customer
relationships |
|
|
|
|
||||||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Customer
relationships, net |
|
|
(
|
)
|
|
|||||||||||
|
Tradename
and other |
|
|
|
|
||||||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Tradename
and other, net |
|
|
(
|
)
|
|
|||||||||||
|
Intangible
assets, net |
$
|
|
$
|
|
$
|
(
|
)
|
$
|
|
|||||||
The
following is a summary of intangible assets as of December 31, 2021:
|
December 31,
2020
|
Additions
|
Amortization
|
December 31,
2021
|
|||||||||||||
|
Acquired
technology |
$
|
|
$
|
|
$
|
|
$
|
|
||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Acquired
technology, net |
|
|
(
|
)
|
|
|||||||||||
|
Customer
relationships |
|
|
|
|
||||||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Customer
relationships, net |
|
|
(
|
)
|
|
|||||||||||
|
Tradename
and other |
|
|
|
|
||||||||||||
|
Accumulated amortization
|
(
|
)
|
|
(
|
)
|
(
|
)
| |||||||||
|
Impairment
|
(
|
)
|
|
|
(
|
)
| ||||||||||
|
Tradename
and other, net |
|
|
(
|
)
|
|
|||||||||||
|
Intangible
assets, net |
$
|
|
$
|
|
$
|
(
|
)
|
$
|
|
|||||||
F - 26
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
estimated useful life of the intangible assets are as follows:
|
Estimated
useful
life |
||||
|
Acquired technology
|
|
|||
|
Customer relationships
|
|
|||
|
Tradename and other
|
|
Amortization of intangible assets, net, in each of the succeeding five years and thereafter is estimated as follows:
|
2023
|
$
|
|
||
|
2024
|
|
|||
|
2025
|
|
|||
|
2026
|
|
|||
|
2027
|
|
|||
|
Thereafter
|
|
|||
|
$
|
|
| NOTE 7: |
ACCRUED EXPENSES AND
OTHER LIABILITIES |
|
|
|
December
31, |
||||||||
|
2022
|
2021
|
|||||||
|
Employees and payroll
accruals |
$
|
|
$
|
|
||||
|
Obligation related to
acquisitions |
|
|
||||||
|
Government authorities
|
|
|
||||||
|
Accrued expenses
|
|
|
||||||
|
Other short-term liabilities
|
|
|
||||||
|
$
|
|
$
|
|
|||||
F - 27
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 8: |
DERIVATIVES AND HEDGING ACTIVITIES |
The
fair value of the Company’s outstanding derivative instruments is as follows:
|
December
31, |
||||||||||
|
Balance
sheet |
2022
|
2021
|
||||||||
|
Derivatives
designate as hedging instruments: |
||||||||||
|
Foreign exchange forward
contracts and other derivatives |
''Prepaid expenses and
other current assets'' |
$
|
|
$
|
|
|||||
|
''Accrued expenses and
other liabilities'' |
|
|
||||||||
|
''Accumulated other comprehensive
income'' |
(
|
)
|
|
|||||||
|
Derivatives
not designated as hedging instruments: |
||||||||||
|
Foreign exchange forward
contracts and other derivatives |
''Prepaid expenses and
other current assets'' |
|
|
|||||||
|
''Accrued expenses and
other liabilities'' |
$
|
|
$
|
|
||||||
The
net amounts reclassified from accumulated other comprehensive loss to the operating expenses are as follows:
|
Gain
recognized
in
Statements of
Comprehensive
Income
|
Gain
(loss) recognized
in
consolidated statements of
Income
|
||||||||||||||||
|
Year
ended December 31, |
|||||||||||||||||
|
Statement
of
Income
|
Year
ended December 31, |
||||||||||||||||
|
2022
|
2022
|
2021
|
2020
|
||||||||||||||
|
Derivatives
designated as hedging instruments: |
|||||||||||||||||
|
Foreign
exchange options and forward contracts |
$
|
|
"Operating
expenses" |
$
|
(
|
)
|
$
|
|
$
|
|
|||||||
|
Derivatives
not designated as hedging instruments: |
|||||||||||||||||
|
Foreign
exchange options and forward contracts |
-
|
"Financial
expenses" |
(
|
)
|
|
(
|
)
| ||||||||||
|
Total
|
$
|
|
$
|
(
|
)
|
$
|
|
$
|
|
||||||||
F - 28
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 9: |
SHORT TERM AND LONG-TERM
DEBT |
On
December 17, 2018, ClientConnect Ltd., a former Israeli subsidiary of Perion, which merged into Perion on June 30, 2020, executed a new
loan facility, in the amount of $25,000 .
Proceeds of the loan facility were applied to refinancing of the existing debt as well as the debt of Undertone, a US subsidiary of Perion.
On
March 8, 2021, the Company early repaid the full amount of its loan facility with bank Mizrachi of a principal amount of $8,333
together with the accumulated interest up to this date as per the agreement.
| NOTE 10: |
LEASES
|
In
January 2014, the Company entered into a lease agreement for new corporate offices in Holon, Israel. The lease expires in , with an option by the Company to extend for two additional terms of 24
months each. The Company sublease part of the office to three different sub-tenants.
In
June 2018, Undertone entered into a lease agreement for its office at World Trade Center (WTC) New York. The lease expires in May 2026.
Additionally, the Company may choose an early termination in 2024. The Company sublease the office to a sub-tenant which led to a decrease
of $344
on the value of its ROU asset. The decrease in ROU asset was recognized in the depreciation expenses.
In
October 2022, Undertone entered into an additional lease agreement for its office at World Trade Center (WTC) New York. The lease expires
in December 2025.
Certain
other facilities of the Company are rented under operating lease agreements, which expire on various dates, the latest of which is in
2023. The Company recognizes rent expense under such arrangements on a straight-line basis.
The
following table represents the weighted-average remaining lease term and discount rate:
|
Year
ended
December 31,
2022
|
||
|
Weighted average remaining
lease term |
|
|
|
Weighted average discount
rate |
|
The discount rate was determined based on the estimated collateralized borrowing rate of the Company, adjusted to the specific lease term and location of each lease.
F - 29
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Maturities of operating lease liabilities were as follows:
|
Year
ending December 31, |
||||
|
2023
|
$
|
|
||
|
2024
|
|
|||
|
2025
|
|
|||
|
2026
|
|
|||
|
Total
lease payments *) |
$
|
|
||
|
Less
– imputed interest |
(
|
)
| ||
|
Present
value of lease liabilities |
$
|
|
||
*) Total
lease payments have not been reduced by sublease rental payments of $8,907
due in
Facilities leasing expenses (net) in the years 2022, 2021 and 2020 were $
Cash
paid for amounts included in measurement of lease liabilities during the years ended 2022, 2021 and 2020 were $5,880 ,
$8,465 ,
and $6,521 ,
respectively.
| NOTE 11: |
SHAREHOLDERS' EQUITY
|
| a. |
Ordinary shares |
The
ordinary shares of the Company entitle their holders to voting rights, the right to receive cash dividend and the right to a share in
excess assets upon liquidation of the Company.
| b. |
Share Options, Restricted Share Units and Warrants
|
In
2003, the Company's Board of Directors approved the 2003 Equity Incentive Plan (the "Plan") for an initial term of ten years from adoption
and on December 9, 2012, extended the term of the Plan for an additional ten years, and on November 7, 2022 the Compensation Committee
approved to extend the term of the Incentive Plan for an additional period of two years, expiring on December 9, 2024. On August 7, 2013,
the Company’s Board of Directors approved amendments to the Plan which include the ability to grant RSUs and restricted shares.
The
contractual term of the share options is generally no more than seven
years and the vesting period of the options and RSUs granted under the Plan is between
and three
years from the date of grant. The rights of the ordinary shares issued upon the exercise of share options or RSUs are
identical to those of the other ordinary shares of the Company.
As
of December 31, 2022, there were 270,923
ordinary shares reserved for future share-based awards under the Plan.
F - 30
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The following table summarizes
the activities for the Company’s service-based share options and RSUs for the year ended December 31, 2022:
|
Weighted average |
||||||||||||||||
|
|
|
Number of options and RSUs |
|
|
Exercise price |
|
|
Remaining contractual term (in years) |
|
|
Aggregate intrinsic value |
| ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
Outstanding at January 1, 2022 |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
Granted |
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
- |
|
|
Exercised |
|
|
( |
) |
|
|
|
|
|
|
- |
|
|
|
|
|
|
Cancelled |
|
|
( |
) |
|
|
|
|
|
|
- |
|
|
|
- |
|
|
Outstanding at December 31, 2022 |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at December 31, 2022 |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested and expected to vest at December 31, 2022 |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
The
weighted-average grant-date fair value of options and RSUs granted during the years ended December 31, 2022, 2021 and 2020 was $20.13 ,
$18.55 ,
and $3.14 ,
respectively.
The
aggregate intrinsic value of the outstanding service-based equity grants at December 31, 2022, represents the intrinsic value of all outstanding
options and RSUs since they were all in-the-money as of such date.
The
following table summarizes the activities for the Company’s performance-based share options and RSUs for the year ended December
31, 2022:
|
Number of |
Weighted average |
|||||||||||||||
|
Performance
based options and RSUs |
Exercise
price
|
Remaining
contractual
term
(in years) |
Aggregate
intrinsic
value |
|||||||||||||
|
Outstanding at January
1, 2022 |
|
$
|
|
|
$
|
|
||||||||||
|
Granted
|
|
|
-
|
-
|
||||||||||||
|
Exercised
|
(
|
)
|
|
-
|
|
|||||||||||
|
Cancelled
|
(
|
)
|
|
-
|
-
|
|||||||||||
|
Outstanding
at December 31, 2022 |
|
$
|
|
|
$
|
|
||||||||||
|
Exercisable
at December 31, 2022 |
|
$
|
|
|
$
|
|
||||||||||
|
Vested
and expected to vest at December 31, 2022 |
|
$
|
|
|
$
|
|
||||||||||
F - 31
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
weighted-average grant-date fair value of options and RSUs granted during the year ended December 31, 2022, 2021 and 2020 was $20.58 ,
$20.03
and $3.12 ,
respectively.
The
aggregate intrinsic value of the outstanding performance-based equity grants at December 31, 2022, represents the intrinsic value of all
outstanding options and RSUs since they were all in-the-money as of such date.
The
number of service-based and performance-based options and RSUs expected to vest reflects an estimated forfeiture rate.
The
following table summarizes additional information regarding outstanding and exercisable service-based options and RSUs under the Company's
Equity Incentive Plan as of December 31, 2022:
|
Outstanding
|
Exercisable
|
|||||||||||||||||||||||||
|
Range
of exercise price |
Number
of options and RSUs |
Weighted
average remaining contractual life (years) |
Weighted
average exercise price |
Number
of options and RSUs |
Weighted
average remaining contractual life (years) |
Weighted
average exercise price |
||||||||||||||||||||
|
$
|
|
|
|
$
|
|
|
- |
$
|
|
|||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
|
$
|
|
|
|
|
|
|
|
|||||||||||||||||||
|
|
|
$
|
|
|
|
$
|
|
|||||||||||||||||||
The following table summarizes additional information regarding outstanding and exercisable performance-based options and RSUs under the Company's share Option Plan as of December 31, 2022:
|
Outstanding
|
Exercisable
|
|||||||||||||||||||||||||
|
Range
of exercise price |
Number
of options and RSUs |
Weighted
average remaining contractual life (years) |
Weighted
average exercise price |
Number
of options and RSUs |
Weighted
average remaining contractual life (years) |
Weighted
average exercise price |
||||||||||||||||||||
|
$
|
|
|
|
$
|
|
|
-
|
$
|
|
|||||||||||||||||
|
$
|
|
|
|
|
|
|
|
|||||||||||||||||||
|
|
|
$
|
|
|
|
$
|
|
|||||||||||||||||||
F - 32
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The Company recognized share-based compensation expenses related to its share-based awards in the consolidated statements of operations as follows:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Cost of revenue
|
$
|
|
$
|
|
$
|
|
||||||
|
Research and development
|
|
|
|
|||||||||
|
Selling and marketing
|
|
|
|
|||||||||
|
General and administrative
|
|
|
|
|||||||||
|
Total
|
$
|
|
$
|
|
$
|
|
||||||
As
of December 31, 2022, there was $20,654
of unrecognized compensation cost related to outstanding options and RSUs. These amounts are expected to be recognized over a weighted-average
period of 1.57
years related to outstanding options and RSUs. To the extent the actual forfeiture rate is different from what has been estimated, share-based
compensation related to these awards will differ from the initial expectations.
| c. |
As part of the acquisition of Undertone, the Company
granted warrants to purchase | |
F - 33
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 12: |
FINANCIAL INCOME (EXPENSE),
NET |
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Financial
income: |
||||||||||||
|
Interest income
|
$
|
|
$
|
|
$
|
|
||||||
|
Other
|
|
|
|
|||||||||
|
$
|
|
$
|
|
$
|
|
|||||||
|
Financial
expense: |
||||||||||||
|
Foreign currency translation
losses |
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
| |||
|
Interest expense on debts
|
|
(
|
)
|
(
|
)
| |||||||
|
Bank charges and other
|
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
(
|
)
| ||||
|
Financial
income (expense), net |
$
|
|
$
|
(
|
)
|
$
|
(
|
)
| ||||
| NOTE 13: |
INCOME TAXES
|
| a. |
Income before taxes on income
|
Income
before taxes on income is comprised as follows:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Domestic
|
$
|
|
$
|
|
$
|
|
||||||
|
Foreign
|
|
|
(
|
)
| ||||||||
|
Total
|
$
|
|
$
|
|
$
|
|
||||||
| b. |
Taxes on income |
Taxes
on income are comprised as follows:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Current taxes
|
$
|
|
$
|
|
$
|
|
||||||
|
Taxes in respect of previous
years |
(
|
)
|
|
|
||||||||
|
Deferred tax benefit
|
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Total
|
$
|
|
$
|
|
$
|
(
|
)
| |||||
F - 34
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
Taxes
on income by jurisdiction were as follows:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Domestic
|
$
|
|
$
|
|
$
|
|
||||||
|
Foreign
|
|
(
|
)
|
(
|
)
| |||||||
|
Total
|
$
|
|
$
|
|
$
|
(
|
)
| |||||
|
Domestic:
|
||||||||||||
|
Current taxes
|
$
|
|
$
|
|
$
|
|
||||||
|
Deferred tax benefit
|
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Taxes in respect of previous
years |
(
|
)
|
|
|
||||||||
|
Total
- Domestic |
$
|
|
$
|
|
$
|
|
||||||
|
Foreign:
|
||||||||||||
|
Current taxes
|
$
|
|
$
|
|
$
|
|
||||||
|
Deferred tax benefit
|
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Taxes in respect of previous
years |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Total
- Foreign |
$
|
|
$
|
(
|
)
|
$
|
(
|
)
| ||||
|
Total
income tax expense (benefit) (benefit) |
$
|
|
$
|
|
$
|
(
|
)
| |||||
F - 35
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| c. |
Deferred Taxes |
Deferred
income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes. The significant components of the Company’s deferred tax assets
and liabilities are as follows:
|
December
31, |
||||||||
|
2022
|
2021
|
|||||||
|
Deferred
tax assets: |
||||||||
|
Net operating loss and
other losses carry forwards |
$
|
|
$
|
|
||||
|
Research and development
|
|
|
||||||
|
Intangible assets
|
(
|
)
|
(
|
)
| ||||
|
Other temporary differences
mainly relating to reserve and allowances |
|
|
||||||
|
Deferred
tax assets, before valuation allowance |
$
|
|
$
|
|
||||
|
Valuation allowance
|
|
|
||||||
|
Total
deferred tax assets, net |
$
|
|
$
|
|
||||
|
Domestic:
|
||||||||
|
Long term deferred tax
liability, net |
$
|
(
|
)
|
$
|
(
|
)
| ||
|
$
|
(
|
)
|
$
|
(
|
)
| |||
|
Foreign:
|
||||||||
|
Long term deferred tax
asset, net |
$
|
|
$
|
|
||||
|
$
|
|
$
|
|
|||||
|
Total
deferred tax asset, net |
$
|
|
$
|
|
||||
The
$185
change in the total valuation allowance for the year ended December 31, 2022, relates to the projected utilization of certain operating
loss carry-forwards and temporary differences for which a full valuation allowance was previously recorded.
F - 36
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| d. |
Reconciliation of the Company’s effective
tax rate to the statutory tax rate in Israel |
A
reconciliation between the theoretical tax expense, assuming all income is taxed at the statutory tax rate applicable to income of the
Company, and the actual tax expense as reported in the statement of income is as follows:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Income before taxes on
income |
$
|
|
$
|
|
$ |
|
||||||
|
Statutory tax rate in
Israel |
|
%
|
|
%
|
|
%
| ||||||
|
Theoretical tax expense
|
$
|
|
$
|
|
$ |
|
||||||
|
Increase (decrease) in
tax expenses resulting from: |
||||||||||||
|
"Preferred Enterprise"
benefits * |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Non-deductible expenses
|
(
|
)
|
|
|
||||||||
|
Tax adjustment in respect
of different tax rate of foreign subsidiaries |
|
|
|
|||||||||
|
Deferred taxes related
to prior years |
(
|
)
|
(
|
)
|
(
|
)
| ||||||
|
Previous years taxes
|
(
|
)
|
|
(
|
)
| |||||||
|
Change in valuation allowance
|
(
|
)
|
|
(
|
)
| |||||||
|
Other
|
(
|
)
|
(
|
)
|
|
|||||||
|
Taxes
on income |
$
|
|
$
|
|
$ |
(
|
)
| |||||
|
* Benefit per ordinary
share from "Preferred Enterprise" status: |
||||||||||||
|
Basic
|
$
|
|
$
|
|
$ |
|
||||||
|
Diluted
|
$
|
|
$
|
|
$ |
|
||||||
| e. |
Income tax rates |
Taxable
income of Israeli companies was generally subject to corporate tax at the rate of 23
Non-Israeli
subsidiaries are taxed according to the tax laws in their respective countries of residence.
Deferred
taxes were not provided for undistributed earnings of the Company’s foreign subsidiaries. Currently, the Company does not intend
to distribute any amounts of its undistributed earnings as dividends. Accordingly, no deferred income taxes have been provided in respect
of these subsidiaries. If these earnings were distributed to Israel in the form of dividends or otherwise, the Company would be subject
to additional Israeli income taxes (subject to an adjustment for foreign tax credits) and foreign withholding taxes. The amount of undistributed
earnings of foreign subsidiaries is immaterial.
F - 37
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| f. |
Law for the Encouragement of Capital Investments,
1959 |
The
Law for Encouragement of Capital Investments, 1959 (the "Investment Law") provides tax benefits for Israeli companies meeting certain
requirements and criteria. The Investment Law has undergone certain amendments and reforms in recent years.
The
Israeli parliament enacted a reform to the Investment Law, effective January 2011 (which was amended in August 2013). According to the
reform, a flat rate tax applies to Preferred Income of companies eligible for the "Preferred Enterprise" status. In order to be eligible
for Preferred Enterprise status, a company must meet minimum requirements to establish that it contributes to the country’s economic
growth and is a competitive factor for the gross domestic product.
The
Company’s Israeli operations elected “Preferred Enterprise” status, starting in 2011.
Benefits
granted to a Preferred Enterprise include reduced tax rates. As part of the Economic Efficiency Law (Legislative Amendments for Accomplishment
of Budgetary Targets for Budget Years 2017-2018), 5777-2016, the tax rate is 16 %
for all areas other than Development Area A (which was 7.5 %
from 2017 onward).
A
distribution from a Preferred Enterprise out of the "Preferred Income" would be subject to 20
| g. |
Technological Enterprise Incentives Regime (Amendment
73 to the Investment Law) |
In
December 2016, the Economic Efficiency Law (Legislative Amendments for Applying the Economic Policy for the 2017 and 2018 Budget Years),
2016 which includes Amendment 73 to the Law for the Encouragement of Capital Investments ("Amendment 73") was published and came into
effect in May 2017. According
to Amendment 73, a Preferred Technological Enterprise, as defined in Amendment 73, with total consolidated revenue of less than NIS 10
billion, shall be subject to 12% tax rate on income derived from intellectual property (in development area A—a tax rate of 7.5%).
In order to qualify as a Preferred Technological Enterprise certain criteria must be met, such as a minimum ratio of annual R&D expenditure
and R&D employees, as well as having at least 25% of annual revenue derived from exports .
Any
dividends distributed from income from the preferred technological enterprises will be subject to tax at a rate of 20%. Amendment 73 further
provides that, in certain circumstances, a dividend distributed to a foreign corporate shareholder, would be subject to a 4% tax rate
(if the percentage of foreign shareholders exceeds 90%).
The
Company assessed the criteria for qualifying as a “Preferred Technological Enterprise,” status and concluded that the Company
and certain of its Israeli subsidiaries are eligible to the above-mentioned benefits.
F - 38
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| h. |
Uncertain tax positions |
A
reconciliation of the beginning and ending balances of the total amounts of unrecognized tax benefits is as follows:
|
December
31, |
||||||||
|
2022
|
2021
|
|||||||
|
Balance
at the beginning of the year |
$
|
|
$
|
|
||||
|
Increase (decrease) related
to prior year tax positions, net |
(
|
)
|
|
|||||
|
Increase related to current
year tax positions, net |
|
|
||||||
|
Balance
at the end of the year |
$
|
|
$
|
|
||||
In 2022, the Company recognizes interest accrued related to unrecognized tax benefits and penalties in tax expenses. The Company had $
The
Company does not expect uncertain tax positions to change significantly over the next 12 months, except in the case of settlements with
tax authorities, the likelihood and timing of which are difficult to estimate.
The
Company believes that it has adequately provided for any reasonably foreseeable outcome related to tax audits and settlements, although
the final tax outcome of its tax audits could be different from that which is reflected in the Company's income tax provisions and accruals.
Such differences could have a material effect on the Company's income tax provision and net income in the period in which such determination
is made.
The
Company’s tax assessments in Israel and the U.S. Federal for tax years prior to 2017 and 2018 respectively are considered final.
The Company has net operating losses in the U.S. from prior tax periods beginning in 2015 which may be subject to examination upon utilization
in future tax periods
| i. |
Tax loss carry-forwards |
As
of December 31, 2022, the Company’s U.S. subsidiaries have Federal net operating loss carry-forwards of $11,842
and States net operating loss carry-forwards of $11,898 .
Net operating losses generated in fiscal years prior to 2018 in the U.S. may be carried forward through periods which will expire in .
Net operating losses generated in 2018 and subsequent years in the U.S. may be carried forward indefinitely for Federal tax purposes yet
are subject to certain limitations. Different states have varying rules regarding utilization and expiration of net operating losses.
Utilization of U.S. net operating losses may be subject to substantial annual limitation due to the "change in ownership" provisions of
the Internal Revenue Code of 1986 and similar state provisions. The annual limitation may result in the expiration of net operating losses
before utilization.
As
of December 31, 2022, the Company’s European subsidiaries have net operating loss carry-forwards of $5,970
which may be carried forward indefinitely.
F - 39
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
The
Company has accumulated net operating losses for Israeli tax purposes as of December 31, 2022, in the amount of approximately $5,119
which may be carried forward and offset against taxable income in the future for an indefinite period. The net operating losses may be
offset against taxable income annually with a limitation of up to 20% of the total accumulated losses but not more than 50% of the Company's
taxable income. The limitation applies during the years 2020 -2024 .
In addition, the Company has accumulated capital losses for tax purposes as of December 31, 2022, of approximately $1,396 ,
which may be carried forward and offset against taxable capital gains in the future for an indefinite period, but are limited as stated
above.
| j. |
US Tax: |
In
March 2020, in response to the COVID-19 pandemic the Coronavirus Aid, Relief and Economic Security (“CARES”) Act was enacted.
The CARES Act comprises a spending package and tax reliefs in order to reduce the impact of the pandemic. The tax portion of the CARES
Act includes several corporate tax relief provisions such as: eliminating the taxable income limitation and allowing carryback to the
prior 5 years for net operating losses (“NOLs”) arising in 2018, 2019 and 2020; increasing the business interest deduction
limitation from 30 %
to 50 %;
accelerated refunds of AMT credits and other provisions.
| NOTE 14: |
EARNINGS PER SHARE
|
The
table below presents the computation of basic and diluted net earnings per common share:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Numerator:
|
||||||||||||
|
Net
income attributable to ordinary shares – basic and diluted |
$
|
|
$
|
|
$
|
|
||||||
|
Denominator:
|
||||||||||||
|
Number
of ordinary shares outstanding during the year |
|
|
|
|||||||||
|
Weighted
average effect of dilutive securities: |
||||||||||||
|
Employee options and
restricted share units |
|
|
|
|||||||||
|
Diluted
number of ordinary shares outstanding |
|
|
|
|||||||||
|
Basic
net earnings per ordinary share |
$
|
|
$
|
|
$
|
|
||||||
|
Diluted
net earnings per ordinary share |
$
|
|
$
|
|
$
|
|
||||||
|
Potential
ordinary shares equivalents excluded because their effect would have been anti-dilutive |
|
|
|
|||||||||
F - 40
PERION NETWORK LTD. AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
U.S.
dollars in thousands (except share and per share data)
| NOTE 15: |
MAJOR CUSTOMERS
|
A
substantial portion of the Company's revenue is derived from search fees and online advertising, the market for which is highly competitive
and rapidly changing. Significant changes in this industry or in customer buying behavior would adversely affect the Company’s operating
results.
The
following table sets forth the customers that represent 10% or more of the Company’s total revenue in each of the years presented
below:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
Customer A
|
|
%
|
|
%
|
|
%
| ||||||
| NOTE 16: |
GEOGRAPHIC INFORMATION
|
The
Company operates as one operating segment. Operating segments are defined as components of an enterprise for which separate financial
information is evaluated regularly by the Chief Operating Decision Maker, who is the Chief Executive Officer, in deciding how to allocate
resources and assessing performance. Over the past few years, the Company has completed several acquisitions. These acquisitions have
allowed the Company to expand its offerings, presence and reach in various markets. While the Company has offerings in multiple enterprise
markets, the Company’s business operates in one segment which is the High Impact Advertising solutions, and the Company’s
Chief Operating Decision Maker evaluates the Company’s financial information and resources and assesses the performance of these
resources on a consolidated basis.
The
following table presents the total revenue for the years ended December 31, 2022, 2021 and 2020, allocated to the geographic areas
in which they were generated:
|
Year
ended December 31, |
||||||||||||
|
2022
|
2021
|
2020
|
||||||||||
|
North America (mainly
U.S.) |
$
|
|
$
|
|
$
|
|
||||||
|
Europe
|
|
|
|
|||||||||
|
Other
|
|
|
|
|||||||||
|
$
|
|
$
|
|
$
|
|
|||||||
The total revenue are attributed to geographic areas based on the location of the end-users.
The
following table presents the locations of the Company’s long-lived assets as of December 31, 2022 and 2021:
|
December
31, |
|||||||
|
2022
|
2021
|
||||||
|
Israel
|
$
|
|
$
|
|
|||
|
U.S.
|
|
|
|||||
|
Europe
|
|
|
|||||
| $ |
|
$
|
|
||||
F - 41
ITEM
19. EXHIBITS:
|
|
|
Incorporation
by Reference | ||||
|
Exhibit
No. |
Description |
Form |
File
No. |
Exhibit
No. |
Filing
Date |
Filed
/ Furnished |
|
20-F |
000-51694 |
1.1 |
March 16, 2022 |
|||
|
20-F |
000-51694 |
1.2 |
March 16, 2022 |
|||
|
* | ||||||
| 20-F |
000-51694 |
4.1 |
April
29, 2013 |
|||
| * | ||||||
|
|
|
|
|
* | ||
|
20-F |
000-51694 |
4.16 |
March 19, 2019 |
| ||
|
20-F |
000-51694 |
4.17 |
March 27, 2018 |
| ||
|
20-F |
000-51694 |
4.6 |
March 25, 2021 |
| ||
|
20-F |
000-51694 |
4.7 |
March 25, 2021 |
| ||
|
20-F |
000-51694 |
4.8 |
March 16, 2020 |
| ||
|
|
|
|
|
* | ||
|
|
|
|
|
* | ||
|
|
|
|
|
* | ||
|
|
|
|
|
** | ||
|
|
|
|
|
** | ||
|
|
|
|
|
* | ||
|
101.INS |
Inline
XBRL Instance Document | |||||
|
101.SCH |
Inline
XBRL Taxonomy Extension Schema Document | |||||
|
101.CAL |
Inline
XBRL Taxonomy Extension Calculation Linkbase Document | |||||
|
101.DEF |
Inline
XBRL Taxonomy Definition Linkbase Document | |||||
|
101.LAB |
Inline
XBRL Taxonomy Extension Label Linkbase Document | |||||
|
101.PRE |
Inline
XBRL Taxonomy Extension Presentation Linkbase Document | |||||
|
104** |
Inline
XBRL for the cover page of this Annual Report on Form 20-F (embedded within the Inline XBRL document) | |||||
_________________
|
* |
Filed
herewith. |
|
** |
Furnished
herewith. |
|
*** |
Certain
confidential information contained in this document, marked by brackets, was omitted because it is both (i) not material and (ii) would
likely cause competitive harm to the Company if publicly disclosed. “[***]” indicates where the information has been omitted
from this exhibit. |
|
† |
Indicates
management contract or compensatory plan or arrangement. |
92
SIGNATURES
The
registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the
undersigned to sign this annual report on its behalf.
|
|
PERION
NETWORK LTD. |
| |
|
|
|
|
|
|
|
By: |
/s/
Doron Gerstel |
|
|
|
|
Name:
Doron Gerstel |
|
|
|
|
Title:
Chief Executive Officer |
|
|
|
|
|
|
|
|
By: |
/s/
Maoz Sigron |
|
|
|
|
Name:
Maoz Sigron |
|
|
|
|
Title:
Chief Financial Officer |
|
Date: March 15, 2023
93
TABLE OF CONTENTS
Part IItem 1. Identity Of Directors, Senior Management and AdvisersItem 2. Offer Statistics and Expected TimetableItem 3. Key InformationItem 4. Information on The CompanyItem 4A. Unresolved Staff CommentsItem 5. Operating and Financial Review and ProspectsItem 6. Directors, Senior Management and EmployeesItem 7. Major Shareholders and Related Party TransactionsItem 8. Financial InformationItem 9. The Offer and ListingItem 10. Additional InformationItem 11. Quantitative and Qualitative Disclosures About Market RiskItem 12. Description Of Securities Other Than Equity SecuritiesPart IIItem 13. Defaults, Dividend Arrearages and DelinquenciesItem 14. Material Modifications To The Rights Of Security Holders and Use Of ProceedsItem 15. Controls and ProceduresItem 16. ReservedItem 16A. Audit Committee Financial ExpertItem 16B. Code Of EthicsItem 16C. Principal Accountanting Fees and ServicesItem 16D. Exemptions From The Listing Standards For Audit CommitteesItem 16E. Purchases Of Equity Securities By The Issuer and Affiliated PurchasersItem 16F. Change in Registrant S Certifying AccountantItem 16G. Corporate GovernanceItem 16H. Mine Safety DisclosureItem 16I. Disclosure Regarding Foreign Jurisdictions That Prevent InspectionPart IIIItem 17. Financial StatementsItem 18. Financial StatementsNote 1: GeneralNote 2: Significant Accounting PoliciesNote 3: Fair Value Of Financial InstrumentsNote 4: AcquisitionsNote 5: Property and Equipment, NetNote 6: Goodwill and Other Intangible Assets, NetNote 7: Accrued Expenses and Other LiabilitiesNote 8: Derivatives and Hedging ActivitiesNote 9: Short Term and Long-term DebtNote 10: LeasesNote 11: Shareholders' EquityNote 12: Financial Income (expense), NetNote 13: Income Taxes A. Income Before Taxes on Income Income Before Taxes on Income Is Comprised As Follows:Note 13: Income TaxesNote 14: Earnings Per Share The Table Below Presents The Computation Of Basic and Diluted Net Earnings Per Common Share:Note 14: Earnings Per ShareNote 15: Major CustomersNote 16: Geographic InformationItem 19. Exhibits: