Form 10-Q
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

 

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

For the quarterly period ended June 30, 2010

or

 

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

For the transition period from              to             

Commission File Number: 000-25131

 

 

INFOSPACE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   91-1718107

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

601 108th Avenue NE, Suite 1200

Bellevue, Washington

  98004
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (425) 201-6100

 

 

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.    x  Yes    ¨  No

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 during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    ¨  Yes    ¨  No

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

 

Large accelerated filer ¨   Accelerated filer x    Non-accelerated filer ¨   Smaller reporting company ¨
    

(Do not check if a smaller

reporting company)

 

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

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

 

Class

 

Outstanding at

July 30, 2010

Common Stock, Par Value $0.0001

  36,025,531

 

 

 


Table of Contents

INFOSPACE, INC.

FORM 10-Q

TABLE OF CONTENTS

 

PART I—FINANCIAL INFORMATION

Item 1.

   Financial Statements   
   Unaudited Condensed Consolidated Balance Sheets as of June 30, 2010 and December 31, 2009    3
   Unaudited Condensed Consolidated Statements of Operations and Comprehensive Income (Loss) for the Three and Six Months ended June 30, 2010 and 2009    4
   Unaudited Condensed Consolidated Statements of Cash Flows for the Six Months ended June 30, 2010 and 2009    5
   Notes to Unaudited Condensed Consolidated Financial Statements    6

Item 2.

   Management’s Discussion and Analysis of Financial Condition and Results of Operations    16

Item 3.

   Quantitative and Qualitative Disclosures About Market Risk    25

Item 4.

   Controls and Procedures    25
PART II—OTHER INFORMATION   

Item 1.

   Legal Proceedings    25

Item 1A.

   Risk Factors    26

Item 6.

   Exhibits    38

Signature

   40


Table of Contents

PART I—FINANCIAL INFORMATION

Item 1. —Financial Statements

INFOSPACE, INC.

UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS

(amounts in thousands, except share data)

 

      June 30,
2010
    December 31,
2009
 
ASSETS     

Current assets:

    

Cash and cash equivalents

   $ 55,131      $ 83,750   

Short-term investments, available-for-sale

     168,224        142,647   

Accounts receivable, net of allowance of $17 and $23

     20,079        28,466   

Other receivables

     3,807        2,953   

Prepaid expenses and other current assets

     3,263        2,526   
                

Total current assets

     250,504        260,342   

Property and equipment, net

     9,595        12,315   

Goodwill

     69,878        44,815   

Other intangible assets, net

     1,705        457   

Other long-term assets

     4,001        4,287   
                

Total assets

   $ 335,683      $ 322,216   
                
LIABILITIES AND STOCKHOLDERS’ EQUITY     

Current liabilities:

    

Accounts payable

   $ 7,318      $ 6,736   

Accrued expenses and other current liabilities

     37,801        34,131   
                

Total current liabilities

     45,119        40,867   

Other long-term liabilities

     1,304        1,514   
                

Total liabilities

     46,423        42,381   

Commitments and contingencies (Note 6)

     —          —     

Stockholders’ equity:

    

Common stock, par value $0.0001 - authorized, 900,000,000 shares; issued and outstanding 35,942,160 and 35,391,122 shares

     4        4   

Additional paid-in capital

     1,310,926        1,303,667   

Accumulated deficit

     (1,022,962     (1,025,176

Accumulated other comprehensive income

     1,292        1,340   
                

Total stockholders’ equity

     289,260        279,835   
                

Total liabilities and stockholders’ equity

   $ 335,683      $ 322,216   
                

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

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INFOSPACE, INC.

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

AND COMPREHENSIVE INCOME (LOSS)

(amounts in thousands, except per share data)

 

     Three months ended
June 30,
    Six months ended
June 30,
 
     2010     2009     2010     2009  

Revenues:

        

Services revenue

   $ 52,363      $ 43,763      $ 114,136      $ 82,833   

Product revenue

     7,039        —          7,039        —     
                                

Total revenues

     59,402        43,763        121,175        82,833   

Cost of sales:

        

Services cost of sales

     29,142        26,763        72,701        49,590   

Product cost of sales

     5,958        —          5,958        —     
                                

Total cost of sales

     35,100        26,763        78,659        49,590   
                                

Gross profit

     24,302        17,000        42,516        33,243   

Expenses and other income:

        

Engineering and technology

     2,803        2,454        4,709        4,770   

Sales and marketing

     8,852        5,137        15,334        12,085   

General and administrative

     6,907        6,397        13,662        12,639   

Depreciation

     823        846        1,643        1,673   

Amortization of intangible assets

     40        —          40        —     

Loss (gain) on investments, net

     —          (335     —          5,016   

Other loss (income), net

     3,522        (466     3,659        (1,073
                                

Total expenses and other income

     22,947        14,033        39,047        35,110   

Income (loss) before income taxes

     1,355        2,967        3,469        (1,867

Income tax expense

     (685     (82     (1,255     (283
                                

Net income (loss)

   $ 670      $ 2,885      $ 2,214      $ (2,150
                                

Income (loss) per share – Basic

        

Net income (loss) per share

   $ 0.02      $ 0.08      $ 0.06      $ (0.06
                                

Weighted average shares outstanding used in computing basic income (loss) per share

     35,751        35,044        35,609        34,949   
                                

Income (loss) per share – Diluted

        

Net income (loss) per share

   $ 0.02      $ 0.08      $ 0.06      $ (0.06
                                

Weighted average shares outstanding used in computing diluted income (loss) per share

     37,353        35,069        37,207        34,949   
                                

Comprehensive income (loss):

        

Net income (loss)

   $ 670      $ 2,885      $ 2,214      $ (2,150

Foreign currency translation adjustment

     (17     42        (188     (94

Unrealized gain (loss) on investments, available-for-sale, net

     77        (300     140        (479

Reclassification adjustment for gains on investments, available-for-sale, included in net income (loss)

     —          (335     —          (335

Cumulative tax effect on unrealized gain on investments, available-for-sale

     —          —          —          186   
                                

Comprehensive income (loss)

   $ 730      $ 2,292      $ 2,166      $ (2,872
                                

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

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INFOSPACE, INC.

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(amounts in thousands)

 

     Six months ended
June 30,
 
     2010     2009  

Operating activities:

    

Net income (loss)

   $ 2,214      $ (2,150

Adjustments to reconcile net income (loss) to net cash provided by operating activities:

    

Loss on investments, net

     —          5,016   

Stock-based compensation

     6,239        3,440   

Depreciation and amortization of intangible assets

     3,527        3,622   

Deferred income taxes

     —          186   

Excess tax benefits from stock-based award activity

     (1,097     —     

Amortization of premium on investments, net

     942        17   

Loss on disposals of assets

     544        613   

Other

     (6     (10

Cash provided (used) by changes in operating assets and liabilities:

    

Accounts receivable

     9,042        (2,757

Notes and other receivables

     (33     (1,097

Prepaid expenses and other current assets

     255        (823

Other long-term assets

     285        247   

Accounts payable

     (3,626     (1,200

Accrued expenses and other current and long-term liabilities

     (4,111     4,839   
                

Net cash provided by operating activities

     14,175        9,943   

Investing activities:

    

Business acquisitions, net of cash acquired

     (15,985     (395

Purchases of property and equipment

     (997     (1,448

Other long-term assets

     —          104   

Proceeds from the sales of assets

     306        320   

Proceeds from sales and maturities of investments

     115,460        43,700   

Purchases of investments

     (141,841     (38,144
                

Net cash provided (used) by investing activities

     (43,057     4,137   

Financing activities:

    

Proceeds from stock option exercises

     1,671        —     

Proceeds from issuance of stock through employee stock purchase plan

     169        252   

Excess tax benefits from stock-based award activity

     1,097        —     

Tax payments from shares withheld upon vesting of restricted stock units

     (2,383     —     

Repayment of capital lease obligation

     (291     (93
                

Net cash provided by financing activities

     263        159   
                

Net increase (decrease) in cash and cash equivalents

     (28,619     14,239   

Cash and cash equivalents:

    

Beginning of period

     83,750        49,936   
                

End of period

   $ 55,131      $ 64,175   
                

Non-cash items:

    

Business acquisition transactions:

    

Stock issued

   $ —        $ 809   

Net liabilities assumed

     (5,997     (56

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

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Table of Contents

INFOSPACE, INC.

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

1. The Company and Basis of Presentation

InfoSpace, Inc. (the “Company” or “InfoSpace”) develops search tools and technologies that assist consumers with finding information, merchants, individuals, products, and other content on the Internet. The Company uses its metasearch technology, which selects search results from several search engine content providers, to power its own branded websites and to provide online search services to distribution partners. Partner versions of Web offerings are generally private-labeled and delivered with each distribution partner’s unique requirements. Some content providers, such as Google and Yahoo!, pay the Company to distribute their content, and those providers are referred to as customers. Beginning in May 2010, the Company also operates an e-commerce business that includes a collection of more than 200 specialty online retail stores operated under the Mercantila brand.

In the three months ended June 30, 2010, following the acquisition of certain assets acquired from Mercantila, Inc., on May 10, 2010, the Company determined that it had two reporting segments: Core and E-Commerce. The Company’s search operations and development-stage business initiatives (such as Haggle) comprise Core, and the Company’s operation of the Mercantila business (“Mercantila”) comprises E-Commerce. Prior to the acquisition of Mercantila, the Company used the term “products and services” to refer to its search services. Starting with this quarterly report, and going forward, unless context indicates otherwise, the Company uses the term “services” to represent search services and the Core segment and uses the term “products” to represent retail products sold through the E-Commerce segment. See “Note 9: Segment Information.” In the three months ended June 30, 2010, the Company revised the presentation of its Unaudited Condensed Consolidated Statements of Operations. See “Note 10: Reclassifications to the Unaudited Condensed Consolidated Statements of Operations.”

A reclassification has been made to prior year and prior quarter financial statements to conform to the current year presentation. In the Unaudited Condensed Consolidated Statements of Cash Flows, for the six months ended June 30, 2009, the net amortization of premiums on investments is separately presented as a component of net cash provided by operating activities; it was previously presented under the caption of “Other.” This reclassification had no effect on previously reported net cash provided by operating activities in the Unaudited Condensed Statement of Cash Flows.

The accompanying Unaudited Condensed Consolidated Financial Statements include all adjustments, consisting of normal recurring adjustments that, in the opinion of management, are necessary to present fairly the financial information set forth herein. Certain information and note disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed under the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”). Investors should read these interim Unaudited Condensed Consolidated Financial Statements and related notes in conjunction with the audited financial statements and related notes included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

Results of operations for the three and six months ended June 30, 2010 are not necessarily indicative of future financial results. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual amounts may differ, perhaps materially, from these financial estimates.

2. Summary of Significant Accounting Policies

The Company’s critical accounting policies and methodologies during the three and six months ended June 30, 2010 include those described in its Annual Report on Form 10-K for the year ended December 31, 2009, along with those presented below.

Business Combinations and Intangible Assets Including Goodwill: The Company accounts for business combinations using the acquisition method and, accordingly, the identifiable assets acquired and liabilities assumed are recorded at their acquisition date fair values. Goodwill is calculated as the excess of the purchase price over the fair value of net assets, including the amount assigned to identifiable intangible assets. The Company evaluates the carrying value of its indefinite-lived intangible assets at least annually on November 30, and evaluates all intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an intangible asset may not be recoverable. Identifiable intangible assets with finite lives are amortized over their useful lives. Acquisition-related costs, including advisory, legal, accounting, valuation and other costs, are expensed in the periods in which the costs are incurred. The results of operations of acquired businesses are included in the consolidated financial statements from the acquisition date.

 

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Services Revenue Recognition: The Company’s services revenue, which is recorded in the Core segment, is generated primarily from its Web search services. The Company generates search revenue when an end user of such services clicks on a paid search link provided by a customer and displayed on one of the Company’s owned and operated Web properties or displayed on a distribution partners’ Web property. The customer that provided the paid search link receives a fee from the advertiser who paid for the click and the customer pays the Company a portion of that fee.

For the Company’s services transactions, the Company is the primary obligor, separately negotiates each revenue or unit pricing contract independent of any revenue sharing arrangements, and assumes the credit risk for amounts invoiced to its customers. For search services, the Company determines the paid search results, content, and information directed to its owned and operated websites and its distribution partners’ Web properties through its meta-search technology.

The Company earns revenue from its search engine customers by providing paid search results generated from its owned and operated properties and from its distribution partners’ Web properties based on separately negotiated and agreed-upon terms with each distribution partner. Consequently, the Company records services revenue on a gross basis. Revenue is recognized in the period in which the services are provided (e.g., a paid search occurs) and is based on the amounts earned by and ultimately remitted to the Company.

Product Revenue Recognition: The Company’s product revenues, which are recorded in the E-Commerce segment, are generated from sales of goods to its customers. The Company recognizes revenue from sales of goods when the following revenue recognition criteria are met: persuasive evidence of an arrangement exists, the selling price is fixed or determinable, delivery has occurred and title has passed to the customer, and collectability is reasonably assured.

For the Company’s sales of goods transactions, the Company is the primary obligor, establishes prices and selects suppliers, performs order fulfillment services, assumes the inventory risk during shipping and for customer returns, and assumes the credit risk for amounts invoiced to its customers. Consequently, the Company records product revenue at its gross sales price.

Cost of Sales: The Company records the cost of sales for product and services when the related revenue is recognized. Cost of services sales primarily consists of costs related to revenue sharing arrangements with the Company’s distribution partners, certain costs associated with the operation of the Company’s data centers that serve the search business, including depreciation, personnel expenses (which include salaries, benefits and other employee related costs, and stock-based compensation expense), and bandwidth costs, cost of sales of the Company’s new business initiatives, and usage-based content fees. Cost of product sales consist of the purchase price of goods sold by the Company to its customers, drop-ship and other shipping charges, and payment processing fees for customer transactions.

Product Sales Returns, Chargebacks, and Replacements: The Company estimates sales returns and credit card chargeback allowances, which reduce product revenue. The Company estimates the cost of replacing damaged or defective goods sold to customers, which is recorded as a cost of product sales.

3. Fair Value Measurements

The Company measures its investments at fair value under GAAP. Fair value is 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. The fair value hierarchy of the Company’s financial assets carried at fair value and measured on a recurring basis is as follows (in thousands):

 

          Fair value measurements at the reporting date using
     June 30,
2010
   Quoted prices in
active markets
using identical assets
(Level 1)
   Significant  other
observable
inputs

(Level 2)
   Significant
unobservable
inputs
(Level 3)

Cash equivalents

   $ 30,153    $ 30,153    $ —      $ —  

Available-for-sale securities

     168,224      168,224      —        —  
                           
   $ 198,377    $ 198,377    $ —      $ —  
                           

 

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There were no balances outstanding in financial assets measured on a recurring basis by using significant Level 2 or Level 3 inputs at December 31, 2009 or June 30, 2010. Changes in the fair values of financial assets measured on a recurring basis by using significant Level 3 inputs in the three and six months ended June 30, 2009 are as follows (in thousands):

 

     Financial assets using significant Level 3
inputs for determining fair value

For the three and six months ended
June 30, 2009
 

Balance at December 31, 2008

   $ 13,916   

Other-than-temporary impairment, recorded to loss on investments

     (5,351

Increase in fair value, recorded to other comprehensive income

     335   
        

Balance at March 31, 2009

     8,900   

Sale of financial instruments

     (700
        

Balance at June 30, 2009

   $ 8,200   
        

Between June 30, 2009 and December 31, 2009, the Company sold the remainder of its investments for which fair values were determined by using significant Level 3 inputs.

4. Stock-Based Compensation

Stock-based compensation expense includes the cost related to restricted stock units (“RSUs”) and stock options granted under the Company’s equity award plans and employee stock purchase plan, and certain shares issued pursuant to acquisition agreements. The following amounts are included in each caption in the accompanying Unaudited Condensed Consolidated Statements of Operations and Comprehensive Income (Loss) for the three and six months ended June 30, 2010 and 2009 (in thousands):

 

     Three months ended
June 30,
   Six months ended
June 30,
     2010    2009    2010    2009

Services cost of sales

   $ 145    $ 60    $ 253    $ 206

Engineering and technology

     672      23      883      355

Sales and marketing

     1,204      86      1,683      454

General and administrative

     1,938      1,220      3,420      2,425
                           

Total

   $ 3,959    $ 1,389    $ 6,239    $ 3,440
                           

Excluded and capitalized as part of internal-use software

   $ 73    $ 32    $ 121    $ 109

The total intrinsic value of RSUs vested, options exercised, and shares purchased pursuant to the employee stock purchase plan during the three and six months ended June 30, 2010 and 2009 is supplemental information for the Unaudited Condensed Consolidated Statements of Cash Flows and is presented below (amounts in thousands):

 

     Three months ended
June 30,
   Six months ended
June 30,
     2010    2009    2010    2009

RSUs vested

   $ 3,350    $ 561    $ 5,470    $ 1,752

Options exercised

   $ 158    $ —      $ 356    $ —  

Shares purchased pursuant to ESPP

   $ 75    $ 44    $ 75    $ 44

 

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To determine the stock-based compensation expense that was recognized with respect to RSUs and stock options in the three and six months ended June 30, 2010 and 2009, the Company used the fair value at date of grant for RSUs and the Black-Scholes-Merton option-pricing model with the following weighted-average inputs for stock option grants:

 

     Employee stock option plans  
     Three months ended
June 30,
    Six months ended
June 30,
 
     2010     2009     2010     2009  

Risk-free interest rate

   1.38   1.29   1.40   1.29

Expected dividend yield

   0   0   0   0

Expected volatility

   51   52   51   51

Expected life

   3.0 years      2.9 years      3.0 years      3.2 years   

Additionally, the Company used the Black-Scholes-Merton option-pricing model with the following weighted-average inputs for shares issued under its employee stock purchase plan in the three and six months ended June 30, 2010 and 2009:

 

     Employee stock purchase plan  
     Three and six months  ended
June 30,
 
     2010     2009  

Risk-free interest rate

   0.19   1.16

Expected dividend yield

   0   0

Expected volatility

   45   62

Expected life

   6 months      6 months   

5. Net Income (Loss) Per Share

Basic net income (loss) per share is computed using the weighted average number of common shares outstanding during the period. Diluted net income (loss) per share is computed using the weighted average number of common shares outstanding plus the number of potentially dilutive shares outstanding during the period. Potentially dilutive shares consist of the incremental common shares issuable upon the exercise of outstanding stock options and vesting of unvested RSUs using the treasury stock method. Potentially dilutive shares are excluded from the computation of earnings per share if their effect is antidilutive. The treasury stock method calculates the dilutive effect for equity awards with an exercise price less than the average stock price during the period presented (in thousands):

 

     Three months ended
June 30,
   Six months ended
June 30,
     2010    2009    2010    2009

Weighted average common shares outstanding, basic

   35,751    35,044    35,609    34,949

Dilutive stock options and RSUs

   1,602    25    1,598    —  
                   

Weighted average common shares outstanding, diluted

   37,353    35,069    37,207    34,949

Antidilutive stock options and RSUs excluded from dilutive share calculation

   895    1,365    492    1,301

Outstanding stock options with an exercise price greater than the average price during the quarter not included in dilutive share calculation

   2,482    5,911    2,402    5,416

6. Commitments and Contingencies

The Company’s capital lease commitments are included in the Company’s Unaudited Condensed Consolidated Balance Sheets. The Company’s contractual commitments are as follows for the remainder of 2010 and the years ending December 31 (in thousands):

 

     Remainder
of 2010
   2011    2012    2013    2014 and
thereafter
   Total

Operating lease commitments

   $ 1,002    $ 1,836    $ 1,624    $ 271    $ —      $ 4,733

Purchase commitments

     1,323      1,261      1,026      493      —        4,103

Capital lease commitments (net of imputed interest and executory costs)

     285      211      —        —        —        496
                                         

Total

   $ 2,610    $ 3,308    $ 2,650    $ 764    $ —      $ 9,332
                                         

 

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As of June 30, 2010, the Company has pledged $4.5 million as collateral for standby letters of credit and bank guaranties for certain of its property leases, which is included in Other long-term assets.

Litigation

On December 17, 2008, Anne D. Manos filed a shareholder derivative action against current and former officers and directors of the Company, as well as nominal defendant InfoSpace, in the Superior Court of the State of Washington in and for King County (“Court”). Although the Company is a nominal defendant, the plaintiff purports to bring the action on behalf of the Company and thus does not seek monetary damages from the Company. Instead, the plaintiff seeks to invalidate and recover certain payments made to the defendant officers and directors pursuant to a compensation program established by the Company’s board of directors, which was designed to offset the diminution in value to InfoSpace employees’ and directors’ options that occurred as a result of cash distributions to stockholders in May 2007 and January 2008. Specifically, the plaintiff alleges that the defendant officers and directors breached their fiduciary duties by accepting these payments and by approving the compensation program. On February 11, 2009, Ms. Manos filed a First Amended Complaint (“Complaint”), which is substantively identical to her original complaint, adding James N. Mercer as co-plaintiff. On March 20, 2009, the Company moved to dismiss the Complaint based on the plaintiffs’ failure to make the requisite pre-filing demand on the Company’s board of directors. The individual defendants also moved to dismiss the Complaint for failure to state a claim for relief. On July 1, 2009, the Court denied the Company’s motion to dismiss. The Court granted in part the individual defendants’ motion and dismissed the non-director officers from the lawsuit after finding that the officers’ acceptance of payments under the compensation program was insufficient to constitute a breach of their fiduciary duties. On July 13, 2009, the directors answered the Complaint, denying all wrongdoing. On February 26, 2010, the Company answered the Complaint. On June 22, 2009, the Company appointed a Special Litigation Committee to investigate the claims made by the derivative plaintiffs. The case was stayed pending the completion of the Special Litigation Committee’s investigation and that stay has effectively continued while the parties to the litigation have conducted settlement discussions. Those discussions are ongoing and no trial date has been set at this time. The Company has entered into indemnification agreements in the ordinary course of business with its officers and directors and may be obligated throughout the pendency of this action to advance payment of legal fees and costs incurred by the defendants pursuant to the Company’s obligations under these indemnification agreements and applicable Delaware law.

From time to time the Company is subject to various legal proceedings or claims that arise in the ordinary course of business. Although the Company cannot predict the outcome of these matters with certainty, the Company’s management does not believe that the disposition of these ordinary course matters will have a material adverse effect on the Company’s financial position, results of operations or cash flows.

7. Income Taxes

As discussed in Note 8 to the Consolidated Financial Statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, the Company has a valuation allowance against the full amount of its net deferred tax asset. The Company currently provides a valuation allowance against deferred tax assets when it is more likely than not that some portion, or all, of its deferred tax assets, will not be realized.

The Company recorded income tax expense of $685,000 and $1.3 million in the three and six months ended June 30, 2010, respectively. The Company recorded income tax expense of $82,000 and $283,000 in the three and six months ended June 30, 2009, respectively. In the three and six months ended June 30, 2010 and 2009, income tax expense included U.S. federal, state, and foreign income taxes. In the three months ended June 30, 2010, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences and the application of a valuation allowance against deferred tax assets arising during the period. In the six months ended June 30, 2010, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences and the release of a valuation allowance against deferred tax assets arising during the period. In the three and six months ended June 30, 2009, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences, the U.S. federal alternative minimum tax, and the reversal of a valuation allowance against deferred tax assets reversing during the period.

During the three and six months ended June 30, 2010, there were no material changes to the unrecognized tax benefits, the total amount of unrecognized tax benefits that would affect the effective tax rate if recognized, the amount of interest and penalties recognized in connection with the unrecognized tax benefits, and the tax years that remain subject to examination. The Company believes that its unrecognized tax benefits pertaining to state income taxes over the next six months may decrease by $566,000 upon expiration of the statute of limitations of those benefits.

 

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8. Business Combinations

Presented below is information regarding the Company’s business combinations during the three and six months ended June 30, 2010 and 2009, including information about the allocation of the purchase price from these transactions.

Make the Web Better

On April 1, 2010, the Company purchased assets consisting of Web properties and licenses for content and technology from Make The Web Better, a search distribution partner and privately-held developer of online products used on social networking sites, for $13.0 million. The purchase was intended to increase profitability and increase the proportion of the search revenues generated through the Company’s owned and operated properties. The purchase consideration included an initial cash payment of $8.0 million, with the remaining consideration payable in cash and contingent on expected financial performance.

The purchase price was allocated to the assets acquired and liabilities assumed based on their estimated fair values at their date of acquisition as follows (in thousands):

 

License for use of developed core technology

   $ 235   

Prepaid hosting services

     115   
        

Identifiable assets acquired

   $ 350   
        

Purchase price:

  

Cash paid

   $ 8,000   

Contingent consideration

     5,000   
        

Purchase price

   $ 13,000   

Less identifiable assets acquired

     (350
        

Excess of purchase price over net assets acquired, allocated to goodwill

   $ 12,650   
        

The technology license and prepaid hosting services have estimated useful lives of 33 months and five months, respectively, with the license to be amortized proportionately over its life to the estimated total revenue to be generated through the acquired technology and the prepaid hosting services to be amortized over its life under the straight-line method. The Company expects that goodwill and any amount in excess of the original $5 million contingent consideration will be deductible for tax purposes.

Since the acquisition date, the Company has included in its consolidated results the financial results of the operation of its acquired Make The Web Better assets, which included $7.4 million of revenue and a contribution to Core segment income of $7.1 million. The financial performance of the operation of the Make the Web Better assets in the three months ended June 30, 2010 was greater than was expected when the assets were acquired; as a consequence, the Company’s estimate of the fair value of the related contingent consideration increased and the Company recorded a charge of $3.5 million to Other loss (income), net in the three and six months ended June 30, 2010.

Mercantila

On May 10, 2010, the Company acquired certain assets from Mercantila, Inc., an internet e-commerce company. The acquisition was intended to diversify the Company’s business model and expand its operations into the e-commerce industry. Since the acquisition date, the Company has included in its consolidated results the financial results of its acquired Mercantila assets, which included $7.0 million of revenue and a contribution to E-Commerce loss of $706,000, which are also all of the results of the E-Commerce segment.

 

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The purchase price was allocated to the assets acquired and liabilities assumed based on their estimated fair values at their date of acquisition as follows (in thousands):

 

Tangible assets acquired

   $ 2,234   

Liabilities assumed

     (8,231

Identifiable net liabilities assumed

   $ (5,997

Fair value adjustments to intangible assets

  

License for use of developed core technology

   $ 893   

Internet domain names

     452   

Customer relationships

     39   
        

Fair value of net liabilities assumed

   $ (4,613
        

Purchase price:

  

Cash paid

   $ 7,800   

Plus identifiable net liabilities assumed

     5,997   

Less adjustments to fair value of intangible assets acquired

     (1,384
        

Excess of purchase price over net assets acquired, allocated to goodwill

   $ 12,413   
        

The allocation of the purchase price was based upon a preliminary valuation and the Company’s estimates and assumptions are subject to change within the purchase price allocation period as valuations are finalized. The Company expects that goodwill will be deductible for tax purposes.

The customer relationships have estimated useful lives of 12 months and will be amortized over their lives under the straight-line method. The developed core technology has an estimated useful life of 24 months, after which the Company assumes that substantial modifications and enhancements would be required for the technology to remain competitive. The license will be amortized over its life proportionately to the estimated total revenue to be generated through the acquired technology. The Company has determined that the acquired Internet domain names have indefinite lives, and, therefore, these intangible assets will not be amortized to expense unless a determination is made in the future that the useful lives are definite.

Direct transaction costs of approximately $337,000 include estimated investment banking and legal fees directly related to the acquisition. As of June 30, 2010, substantially all costs for investment banking and legal fees have been paid.

Pro-Forma Financial Information of Acquisitions

The unaudited financial information in the table below summarizes the combined results of operations of InfoSpace and of the assets acquired from Mercantila, Inc. on a pro forma basis, as though they had been combined as of the beginning of each period presented. This pro forma financial information is presented for informational purposes only and is not necessarily indicative of the results of operations that would have been achieved had the acquisition occurred at the beginning of each period presented. The unaudited pro forma condensed combined statement of operations for the three months ended June 30, 2010 combines the historical results of operations of InfoSpace for the three months ended June 30, 2010 and the historical results of operation of the acquired Mercantila assets for the period from April 1, 2010 to May 10, 2010. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2010 combines the historical results of operations of InfoSpace for the six months ended June 30, 2010 and the historical results of the operation of the acquired Mercantila assets for the period from January 1, 2010 to May 10, 2010. The unaudited pro forma condensed combined statement of operations for the three and six months ended June 30, 2009 combines the historical results of operations of InfoSpace for the three and six months ended June 30, 2009 and the historical results of the operation of the acquired Mercantila assets for the three and six months ended June 30, 2009.

 

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Make The Web Better was InfoSpace’s distribution partner for all periods presented below, and because combining Make The Web Better’s historical results with InfoSpace’s would not produce a result that was materially different than InfoSpace’s historical results, the historical results of the operation of the acquired Make The Web Better assets are not included in the table below.

The following amounts are in thousands, except per share data:

 

     Three months ended
June 30,
   Six months ended
June 30,
 
     2010    2009    2010    2009  

Revenue

   $ 64,363    $ 51,180    $ 134,547    $ 97,165   

Net income (loss)

   $ 110    $ 1,755    $ 520    $ (4,626

Basic and diluted income (loss) per share

   $ 0.00    $ 0.05    $ 0.01    $ (0.13

There were no business combinations in the three or six months ended June 30, 2009.

9. Segment Information

In May 2010, the Company changed its operational structure upon the acquisition of certain assets from Mercantila, Inc. and as of and for the three months ended June 30, 2010 has two reporting segments: Core and E-Commerce. The Core segment is comprised of the Company’s search operations and development-stage business initiatives (such as Haggle), and the E-Commerce segment is comprised of the Company’s operation of the acquired Mercantila assets. The Company’s chief executive officer is its chief operating decision maker and reviews financial information presented on a disaggregated basis. This information is used for purposes of allocating resources and evaluating financial performance.

The Company has revised the presentation of its historical financial results for 2009 and the three months ended March 31, 2010 to be consistent with the Company’s new measures for reportable segments information. The revised financial information for the new segment reporting is not indicative of how the Company operated or managed its business in the past.

The Company presents revenue and cost of sales for each of the two segments. Core cost of sales primarily consists of revenue sharing arrangements with the Company’s search distribution partners, costs associated with new business initiatives revenue, and usage-based content fees. E-Commerce cost of sales primarily consist of the purchase price of goods sold by the Company to its customers, drop-ship and other shipping charges, and payment processing fees for customer transactions.

The Company does not allocate stock-based compensation, depreciation, amortization of intangible assets, loss (gain) on investments, other loss (income), or income tax expense to the reportable segments. The Company does not account for, and does not report to management, its assets or capital expenditures by segment other than goodwill and intangible assets for impairment analysis purposes.

 

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Information on reportable segments currently presented to the Company’s chief operating decision maker and a reconciliation to consolidated net income (loss) for the three and six months ended June 30, 2010 and 2009 are presented below (in thousands):

 

     Three months ended
June 30,
    Six months ended
June 30,
 
     2010     2009     2010     2009  

Core

      

Revenue

   $ 52,363      $ 43,763      $ 114,136      $ 82,833   

Cost of sales

     26,627        24,310        67,750        44,687   

Operating expenses

     14,430        14,087        28,786        29,008   
                                

Core income

     11,306        5,366        17,600        9,138   

E-Commerce

      

Revenue

     7,039        —          7,039        —     

Cost of sales

     5,958        —          5,958        —     

Operating expenses

     1,787        —          1,787        —     
                                

E-Commerce loss

     (706     —          (706     —     

Total

      

Total revenue

     59,402        43,763        121,175        82,833   

Total cost of sales

     32,585        24,310        73,708        44,687   

Total segment operating expenses

     16,217        14,087        30,573        29,008   
                                

Total segment income, net

     10,600        5,366        16,894        9,138   

Corporate

      

Stock-based compensation

     3,959        1,389        6,239        3,440   

Depreciation

     1,676        1,795        3,391        3,606   

Amortization of intangible assets

     88        16        136        16   

Loss (gain) on investments, net

     —          (335     —          5,016   

Other loss (income), net

     3,522        (466     3,659        (1,073

Income tax expense

     685        82        1,255        283   
                                

Net income (loss)

   $ 670      $ 2,885      $ 2,214      $ (2,150
                                

Information on reportable segments currently presented to the Company’s chief operating decision maker and a reconciliation to consolidated net income (loss) for the year ended December 31, 2009 and each of the three months ended March 31, 2010, and March 31, June 30, September 30, and December 31, 2009, are presented below (in thousands):

 

     Three months ended     Year ended
December 31,
2009
    Three  months
ended

March 31,
2010
     March 31,
2009
    June 30,
2009
    September 30,
2009
    December 31,
2009
     

Core

            

Revenue

   $ 39,070      $ 43,763      $ 54,356      $ 70,457      $ 207,646      $ 61,773

Cost of sales

     20,377        24,310        34,019        47,825        126,531        41,123

Operating expenses

     14,921        14,087        13,278        11,392        53,678        14,356
                                              

Core income

     3,772        5,366        7,059        11,240        27,437        6,294

Corporate

            

Stock-based compensation

     2,051        1,389        3,934        3,194        10,568        2,280

Depreciation

     1,811        1,795        1,771        1,765        7,142        1,715

Amortization of intangible assets

     —          16        47        48        111        48

Loss (gain) on investments, net

     5,351        (335     —          (302     4,714        —  

Other loss (income), net

     (607     (466     (472     (1,137     (2,682     137

Income tax expense (benefit)

     201        82        (32     (70     181        570
                                              

Net income (loss)

   $ (5,035   $ 2,885      $ 1,811      $ 7,742      $ 7,403      $ 1,544
                                              

 

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10. Reclassifications to Unaudited Condensed Consolidated Statements of Operations

In the three months ended June 30, 2010, the Company revised the presentation of its Consolidated Statements of Operations as outlined below.

 

New caption

 

Comprised of amounts from:

Services revenue   Revenues (completely allocated)
Product revenue   new caption, no amounts in prior periods
Cost of services sales  

Content and Distribution (completely allocated)

Systems and Network Operations (partially allocated)

Sales and Marketing (partially allocated)

General and Administrative (partially allocated)

Depreciation (partially allocated)

Amortization of Intangible Assets (partially allocated)

Cost of product sales   new caption, no amounts in prior periods
Engineering and technology  

Systems and Network Operations (partially allocated)

Product Development (completely allocated)

The Company also added the caption Total Expenses and Other Income and eliminated the captions Total Operating Expenses and Operating Income. The reclassifications did not impact previously reported revenues, income (loss) before income taxes, net income (loss), total assets, total liabilities, or stockholders’ equity.

The amounts in the Consolidated Statements of Operations for the year ended December 31, 2009 and each of the three months ended March 31, 2010, and March 31, June 30, September 30, and December 31, 2009, have been reclassified as follows (in thousands):

 

     Three months ended     Year ended
December 31,
2009
    Three  months
ended

March 31,
2010
 
     March 31,
2009
    June 30,
2009
    September 30,
2009
    December 31,
2009
     

Services revenue

   $ 39,070      $ 43,763      $ 54,356      $ 70,457      $ 207,646      $ 61,773   

Cost of services sales

     22,823        26,763        36,577        50,456        136,619        43,559   
                                                

Gross profit

     16,247        17,000        17,779        20,001        71,027        18,214   

Expenses and other income:

            

Engineering and technology

     2,316        2,454        2,231        2,128        9,129        1,906   

Sales and marketing

     6,948        5,137        6,639        6,654        25,378        6,482   

General and administrative

     6,246        6,397        6,789        4,189        23,621        6,755   

Depreciation

     827        846        813        797        3,283        820   

Loss (gain) on investments, net

     5,351        (335     —          (302     4,714        —     

Other loss (income), net

     (607     (466     (472     (1,137     (2,682     137   
                                                

Total expenses and other income

     21,081        14,033        16,000        12,329        63,443        16,100   
                                                

Income (loss) before income taxes

     (4,834     2,967        1,779        7,672        7,584        2,114   

Income tax benefit (expense)

     (201     (82     32        70        (181     (570
                                                

Net income (loss)

   $ (5,035   $ 2,885      $ 1,811      $ 7,742      $ 7,403      $ 1,544   
                                                

11. Recent Accounting Pronouncements

The Company does not expect the adoption of recently issued accounting pronouncements to have a significant impact on its results of operations, financial position, or cash flows.

 

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

This Quarterly Report on Form 10-Q contains forward-looking statements that involve risks and uncertainties. The statements in this report that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Words such as “anticipate,” “believe,” “plan,” “expect,” “future,” “intend,” “may,” “will,” “should,” “estimate,” “predict,” “potential,” “continue,” and similar expressions identify forward-looking statements, but the absence of these words does not mean that the statement is not forward looking. These forward-looking statements include, but are not limited to: statements regarding projections of our future financial performance; trends in our businesses; our future business plans and growth strategy, including our plans to expand, develop, or acquire particular operations, businesses, or assets; and the sufficiency of our cash balances and cash generated from operating, investing, and financing activities for our future liquidity and capital resource needs.

Forward-looking statements are subject to known and unknown risks, uncertainties, and other factors that may cause our results, levels of activity, performance, achievements, and prospects, and those of Internet industries generally, to be materially different from those expressed or implied by such forward-looking statements. These risks, uncertainties, and other factors include, among others, those identified under Part II, Item 1A, “Risk Factors” and elsewhere in this report. You should not rely on forward-looking statements, which speak only as of the date of this Quarterly Report on Form 10-Q. We do not undertake any obligation to update publicly any forward-looking statement to reflect new information, events, or circumstances after the date of this Quarterly Report on Form 10-Q or to reflect the occurrence of unanticipated events.

Overview

InfoSpace, Inc. (“InfoSpace,” “our,” or “we”) is a developer of search tools and technologies that assist consumers with finding information, merchants, individuals, products, and other content on the Internet. We use our metasearch technology to power our own branded websites and to provide online search services to distribution partners. Our metasearch technology selects search results from several search engine content providers, including Google, Yahoo!, and Bing, among others. Some content providers, such as Google and Yahoo!, pay us to distribute their content and we refer to those providers as our customers. Beginning in May 2010, we operate an e-commerce business that includes a collection of more than 200 specialty online retail stores operated under the Mercantila brand.

We offer search services through our websites, such as Dogpile.com, WebCrawler.com, MetaCrawler.com, and WebFetch.com, as well as through the Web properties of distribution partners. Partner versions of our Web offerings are generally private-labeled and delivered with each distribution partner’s unique requirements.

We generate the majority of our revenues from our Web search services when an end user of our services clicks on a paid search link provided by a customer and displayed on one of our owned and operated Web properties or displayed on a distribution partner’s Web property. The customer that provided the paid search link receives a fee from the advertiser who paid for the click and the customer pays us a portion of that fee. If the click originated from one of our distribution partners’ Web properties, we share a portion of the fee we receive with such partner. Revenue is recognized in the period in which such paid clicks occur and is based on the amounts earned and remitted to us by our customers for such clicks. Revenue from Google and Yahoo! jointly accounted for over 85% and 95% of our total revenues for the three months ended June 30, 2010 and 2009, respectively. Each of these customers also accounted for more than 10% of our revenues in such periods and we expect this concentration to continue. If either of these customers reduces or eliminates the content it provides to us or our distribution partners, or if either of these customers became unwilling to pay us amounts that it owed us, our business and financial results may materially suffer. Our principal agreements with Google and Yahoo! expire in April 2011 and January 2011, respectively, and we plan to negotiate renewals of these agreements.

Our ability to increase our online search services revenue generated through our owned and operated properties relies on growth in the volume of paid clicks on our owned and operated properties, the fees advertisers pay our customers for these paid clicks, and the percentage of these fees our customers share with us. In recent periods, we experienced a decline in revenue generated through our owned and operated properties, with lower average fees per paid click from customers on our owned and operated properties more than offsetting an increase in paid click volumes driven primarily by our marketing initiatives. On April 1, 2010, we purchased assets consisting of Web properties and licenses for content and technology from Make The Web Better, a search distribution partner and privately-held developer of online products used on social networking sites, for $13.0 million. The operation of the acquired Make The Web Better assets in the second quarter of 2010 increased the proportion of our search revenue generated through our owned and operated properties and reversed the recent trend of declining revenues generated by our owned and operated properties. We expect that the revenue generated by operating the Make The Web Better assets will decline to approximately $3 million to $4 million in the fourth quarter of 2010 because we expect the end-user base of those assets to steadily decrease, and we expect that revenue generated from the operation of our owned and operated Web properties will resume its decline. The revenue generated by the acquired Make The Web Better assets in the three months ended June 30, 2009 was greater than was expected when we acquired the assets. This unexpected performance increased our estimate of the contingent consideration due to Make The Web Better and, accordingly, we recorded a charge of $3.5 million to Other loss (income), net in the three months ended June 30, 2010.

 

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Similarly, our ability to increase our revenue generated from distribution partners depends on growth in the volume of paid clicks on our distribution partners’ Web properties, the fees advertisers pay our customers for these paid clicks, and the percentage of these fees our customers share with us. In recent periods, revenues from certain distribution partners have been adversely affected by our customers’ process of measuring the quality of paid clicks and adjusting the fees paid to us for clicks deemed to be of lesser quality, as well as their examinations of end-user acquisition processes. During the first half of 2010, we discontinued traffic that was not considered to be high quality, and those discontinuations had a material negative impact on our revenues for the first and second quarters of 2010. In an effort to drive quality traffic to our customers, we continue to invest in product development to expand the online search services we offer on our owned sites and those of our distribution partners.

On May 10, 2010, we acquired certain assets from Mercantila, Inc., an internet e-commerce company, at a cost of $7.8 million in cash, plus $6.0 million in liabilities assumed. The acquisition is intended to diversify our business model and expand our operations into the e-commerce industry. We earn revenues in our e-commerce business when we deliver purchases to customers of Mercantila’s Web properties (typically the final criterion in our revenue recognition process). We generally do not maintain inventory for sale, but arrange for our third-party vendors to drop-ship the purchased goods directly to our customers. Our ability to increase our revenue and profitability depends on our success in attracting customers through our marketing activities, retaining them by providing them a satisfying purchase experience, effectively managing our costs, and attracting and retaining high quality third-party vendors.

Our search services are affected by seasonal fluctuations in Internet usage, which generally declines in the summer months. We expect our e-commerce revenues to be seasonally affected, particularly during the fourth quarter holiday season as Mercantila customers increase their purchases of our products.

Engineering, operations, and product management personnel remain paramount to our ability to deliver high quality online search services and e-commerce experiences, enhance our current technology, and expand our product offerings. As a result, we expect to continue to invest in our workforce and increase our research and development operations. In the second quarter of 2010, we sold our ownership interest in our India office for a nominal amount and entered into an agreement with the buyer to continue to make India-based development resources available to us. Additionally, we may use our cash and short-term available-for-sale investments to acquire businesses and other assets, including businesses and assets that may not be related to online search or e-commerce.

Overview of Second Quarter 2010 Operating Results

The following is an overview of our operating results for the three months ended June 30, 2010. A more detailed discussion, comparing our operating results for the three and six months ended June 30, 2010 and 2009, is included under the heading “Historical Results of Operations” in this Management’s Discussion and Analysis of Financial Condition and Results of Operations.

In the three months ended June 30, 2010, following the Mercantila acquisition described above, we determined that we had two reporting segments: Core and E-Commerce. Our search operations and development-stage business initiatives (such as Haggle) comprise Core, and our Mercantila business comprises E-Commerce. Prior to the acquisition of Mercantila, we used the term “products and services” to refer to our search services. Starting with this quarterly report, and going forward, unless the context indicates otherwise, we use the term “services” to represent search services and the Core segment and the term “products” to represent retail products sold through the E-Commerce segment. See “Note 9: Segment Information” of the Notes to the Unaudited Condensed Consolidated Financial Statements (Part 1, Item 1 of this report) for further information regarding segment presentation.

In the three months ended June 30, 2010, we revised our presentation of our Unaudited Condensed Consolidated Statements of Operations as described in “Note 10: Reclassifications to Unaudited Condensed Consolidated Statements of Operations” of the Notes to the Unaudited Condensed Consolidated Financial Statements (Part 1, Item 1 of this report) and reclassified amounts between the new captions for prior periods. The reclassifications did not impact previously reported revenues, income (loss) before income taxes, net income (loss), total assets, total liabilities, or stockholders’ equity.

 

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Several of our key operating financial measures for the three months ended June 30, 2010 and 2009 in total dollars (in thousands) and as a percentage of associated revenue are presented below.

 

     Three months ended
June 30, 2010
    Three months ended
June 30, 2009
 

Revenues:

        

Services/Core Revenue

   $ 52,363        $ 43,763     

Product/E-Commerce Revenue

     7,039          —       
                    

Total Revenue

   $ 59,402        $ 43,763     
           % of associated
revenue
          % of associated
revenue
 

Gross Profit:

        

Services Gross Profit

   $ 23,221      44.3   $ 17,000      38.8

Product Gross Profit

     1,081      15.4     —        0.0
                    

Total Gross Profit

   $ 24,302      40.9   $ 17,000      38.8

Segment Income (Loss):

        

Core Segment Income

   $ 11,306      21.6   $ 5,366      12.3

E-Commerce Segment Loss

     (706   (10.0 )%      —        0.0
                    

Total Segment Income

   $ 10,600      17.8   $ 5,366      12.3

Net Income

   $ 670        $ 2,885     

Adjusted EBITDA (1)

   $ 10,600        $ 5,366     

Revenue from Distribution Partners as % of Search Revenue

     64       71  

 

(1)

Adjusted EBITDA is a non-GAAP measure, defined below in “Non-GAAP Financial Measures.”

The operation of the acquired Make The Web Better assets, described above, reversed the recent trend of decreasing revenue from search results delivered through our owned and operated properties, with 64% of our search revenue in the three months ended June 30, 2010 generated by results delivered through our distribution partners’ Web properties, as compared to 81% in the three months ended March 31, 2010. We generated 33% and 37% of our search revenue through the Web properties of our top five distribution partners for the three months ended June 30, 2010 and 2009, respectively. The Web properties of our top five distribution partners for the three months ended June 30, 2010 generated 32% of our online search revenue for the three months ended June 30, 2009.

The increase in Core segment income from $5.4 million for the three months ended June 30, 2009 to $11.3 million for the three months ended June 30, 2010 was primarily due to the operation of the acquired Make The Web Better assets, which contributed $7.1 million to segment income for the three months ended June 30, 2010. Product revenue of $7.0 million for the three months ended June 30, 2010 was exclusively comprised of sales through our Mercantila operations from May 11, 2010 to June 30, 2010 which was approximately 56% of the quarterly sales period.

Critical Accounting Policies and Estimates

The preparation of our financial statements requires that we make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and disclosure of contingent assets and liabilities. We base our estimates on historical experience and other assumptions that we believe to be reasonable under the circumstances. Actual results may differ from these estimates. Our critical accounting policies, estimates, and methodologies for the three months ended June 30, 2010 include those discussed in our Annual Report on Form 10-K for the year ended December 31, 2009, along with those presented below.

Business Combinations and Intangible Assets Including Goodwill

We account for business combinations using the acquisition method and accordingly, the identifiable assets acquired and liabilities assumed are recorded at their acquisition date fair values. Goodwill is calculated as the excess of the purchase price over the fair value of net assets, including the amount assigned to identifiable intangible assets. We evaluate the carrying value of our indefinite-lived intangible assets at least annually, and evaluate all intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an intangible asset may not be recoverable. Identifiable intangible assets with finite lives are amortized over their useful lives. Acquisition-related costs, including advisory, legal, accounting, valuation, and other costs, are expensed in the periods in which the costs are incurred. The results of operations of acquired businesses are included in the consolidated financial statements from the acquisition date.

 

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Services Revenue Recognition

Our services revenue, which is recorded in the Core segment, is generated primarily from our Web search services. We generate search revenue when an end user of such services clicks on a paid search link provided by a customer and displayed on one of our owned and operated Web properties or displayed on a distribution partners’ Web property. The customer that provided the paid search link receives a fee from the advertiser who paid for the click and the customer pays us a portion of that fee.

For our services transactions, we are the primary obligor, separately negotiate each revenue or unit pricing contract independent of any revenue sharing arrangements, and assume the credit risk for amounts invoiced to our customers. For search services, we determine the paid search results, content, and information directed to our owned and operated websites and our distribution partners’ Web properties through our meta-search technology. We earn revenue from our search engine customers by providing paid search results generated from our owned and operated properties and from our distribution partners’ Web properties based on separately negotiated and agreed-upon terms with each distribution partner. Consequently, we record services revenue on a gross basis. Revenue is recognized in the period in which the services are provided (e.g., a paid search occurs) and is based on the amounts earned by and ultimately remitted to us.

Product Revenue Recognition

Our product revenue, which is recorded in the E-Commerce segment, is derived from sales of goods to our customers. We recognize revenue from sales of goods when the following revenue recognition criteria are met: persuasive evidence of an arrangement exists, the selling price is fixed or determinable, delivery has occurred and title has passed to the customer, and collectability is reasonably assured. For our sales of goods, we are the primary obligor in the transaction, establish prices and select suppliers, perform order fulfillment services, assume the inventory risk during shipping and for customer returns, and assume the credit risk for amounts invoiced to our customers. Consequently, we record product revenue at its gross sales price.

Cost of Sales

We record the cost of sales for product and services sales when the related revenue is recognized. Cost of services sales consists of costs related to revenue sharing arrangements with our distribution partners, certain costs associated with the operation of our data centers that serve our search business, including depreciation, personnel expenses (which include salaries, benefits and other employee related costs, and stock-based compensation expense), and bandwidth costs, cost of sales of our new business initiatives, and usage-based content fees. Cost of product sales consist of the purchase price of goods sold by us to our customers, drop-ship and other shipping charges, and payment processing fees for customer transactions.

Product Sales Returns, Chargebacks, and Replacements

We estimate sales returns and credit card chargeback allowances, which reduce product revenue. We estimate the cost of replacing damaged or defective goods sold to customers, which we record as a cost of product sales.

Historical Results of Operations

For the three months ended June 30, 2010, our net income was $670,000. We have incurred net losses on an annual basis for all but four of the years since our inception and have an accumulated deficit of $1.0 billion.

Results of Operations for the Three and Six Months Ended June 30, 2010 and 2009

Revenues. Revenues for the three and six months ended June 30, 2010 and 2009 are presented below (in thousands):

 

     Three months ended
June 30,
   Change
from
2009
   Six months ended
June 30,
   Change
from
2009
     2010    2009       2010    2009   

Services Revenue

   $ 52,363    $ 43,763    $ 8,600    $ 114,136    $ 82,833    $ 31,303

Product Revenue

     7,039      —        7,039      7,039      —        7,039
                                         

Total Revenues

   $ 59,402    $ 43,763    $ 15,639    $ 121,175    $ 82,833    $ 38,342
                                         

The increase in services (and Core segment) revenue for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009 is primarily due to an increase in revenue from search results delivered through our owned and operated properties. The increase in revenues generated by our owned and operated Web properties was primarily due to the operation of the acquired Make The Web Better assets, which generated $7.4 million of revenue in the three months ended June 30, 2010, which was a greater revenue amount than was expected when we acquired the assets. A distribution partner owned the Make The Web Better assets (and we therefore paid a revenue share) during the three months ended June 30, 2009 and we owned them during the three months ended June 30, 2010. Paid clicks increased on our owned and operated properties for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009, and were partially offset by a decrease in average fees per paid click from our customers. The decrease in average fees per paid click was the result of an increase in the proportion of paid clicks derived from our direct marketing initiatives on our owned and operated properties and the operation of the acquired Make The Web Better assets. Average fees paid per click for revenues derived through our direct marketing initiatives historically have been lower than the average fees per paid click for other revenues generated on our owned and operated Web properties. For the three months ended June 30, 2010 and 2009, 64% and 71% of our search revenues, respectively, were generated through our search distribution partners’ Web properties.

 

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The increase in services (and Core segment) revenue for the six months ended June 30, 2010 as compared to the six months ended June 30, 2009 is primarily due to an increase in revenue from search results delivered through the Web properties of new and existing distribution partners. For the six months ended June 30, 2010 and 2009, 73% and 70% of our search revenues, respectively, were generated through our search distribution partners’ Web properties.

During the first half of 2010, we discontinued traffic that was not considered to be high quality, and those discontinuations had a material negative impact on our revenues for the first and second quarters of 2010.

The product revenue was comprised of sales of product through our Mercantila business.

Cost of Sales. Cost of services sales consists of costs related to revenue sharing arrangements with our distribution partners, certain costs associated with the operation of our data centers that serve our search business, including depreciation, personnel expenses (which include salaries, benefits and other employee related costs, and stock-based compensation expense), and bandwidth costs, cost of sales of our new business initiatives, and usage-based content fees. Cost of product sales primarily consist of the purchase price of goods sold by us to our customers, drop-ship and other shipping charges, and payment processing fees for customer transactions.

Cost of sales expenses in total dollars (in thousands) and as a percentage of total revenues for the three and six months ended June 30, 2010 and 2009 are presented below:

 

     Three months ended
June 30,
    Change
from
2009
   Six months ended
June 30,
    Change
from
2009
     2010     2009        2010     2009    

Cost of Services Sales

   $ 29,142      $ 26,763      $ 2,379    $ 72,701      $ 49,590      $ 23,111

Percentage of Services Revenue

     55.7     61.2        63.7     59.9  

Cost of Product Sales

     5,958        —          5,958      5,958        —          5,958
                                             

Percentage of Product Revenue

     84.6     0.0        84.6     0.0  

Total Cost of Sales

   $ 35,100      $ 26,763      $ 8,337    $ 78,659      $ 49,590      $ 29,069
                                             

Percentage of Total Revenues

     59.1     61.2        64.9     59.9  

The dollar increase in cost of services sales for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009 is primarily due to costs of sales of our new business initiatives and an increase in revenue sharing expenses related to increases in revenue generated through the Web properties of our distribution partners and increases in our revenue sharing rates, partially offset by the decrease in revenue sharing expense resulting from our acquisition of Make The Web Better.

The dollar increase in cost of services sales for the six months ended June 30, 2010 as compared to the six months ended June 30, 2009 is primarily due to an increase in revenue sharing expenses related to increases in revenue generated through the Web properties of our distribution partners and increases in our revenue sharing rates, partially offset by the decrease in revenue sharing expense resulting from our acquisition of Make The Web Better.

We anticipate that our revenue sharing expenses paid to our distribution partners will increase in dollars if revenue increases through growth in existing arrangements with our search distribution partners or we add new search distribution partners. If search revenue generated through our distribution partners’ Web properties increases at a greater rate than revenue generated through our own websites, revenue sharing expenses with our distribution partners as a percentage of search revenue will increase. As a result of our acquisition of assets from Make The Web Better in April 2010, we experienced a decrease in services cost of sales as a percentage of services revenue, and a corresponding increase in our gross profit percentage on our search revenue. We expect that search revenue from searches conducted by end users on sites of our distribution partners will continue to be a significant share of our search revenue.

The cost of product sales was comprised of the cost of sales of products through our Mercantila business.

 

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Engineering and Technology Expenses. Engineering and technology expenses are associated with the research, development, support, and ongoing enhancements of our services, including personnel expenses (which include salaries, stock-based compensation expense, and benefits and other employee related costs), and professional service fees. Engineering and technology expenses in total dollars (in thousands) and as a percentage of total revenues for the three and six months ended June 30, 2010 and 2009 are presented below:

 

     Three months ended
June 30,
    Change
from
2009
   Six months ended
June 30,
    Change
from
2009
 
     2010     2009        2010     2009    

Engineering and Technology Expenses

   $ 2,803      $ 2,454      $ 349    $ 4,709      $ 4,770      $ (61

Percentage of Total Revenues

     4.7     5.6        3.9     5.8  

The dollar increase for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009 was primarily comprised of an increase of $649,000 in stock-based compensation expense, which was partially offset by a decrease of $641,000 in employee separation costs. The dollar decrease for the six months ended June 30, 2010 as compared to the six months ended June 30, 2009 was primarily comprised of a decrease of $662,000 in employee separation costs, which was partially offset by an increase of $528,000 in stock-based compensation expense.

Sales and Marketing Expenses. Sales and marketing expenses consist principally of personnel costs (which include salaries, stock-based compensation expense, and benefits and other employee related costs), the cost of temporary help and contractors to augment our staffing, and marketing expenses associated with our owned and operated websites (which consist of agency fees, brand promotion expense, market research expense, and online direct marketing expense associated with traffic acquisition, including fees paid to search engines). Sales and marketing expenses in total dollars (in thousands) and as a percentage of total revenues for the three and six months ended June 30, 2010 and 2009 are presented below:

 

     Three months ended
June 30,
    Change
from
2009
   Six months ended
June 30,
    Change
from
2009
     2010     2009        2010     2009    

Sales and Marketing Expenses

   $ 8,852      $ 5,137      $ 3,715    $ 15,334      $ 12,085      $ 3,249

Percentage of Total Revenues

     14.9     11.7        12.7     14.6  

The dollar increase for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009 was primarily attributable to an increase of $1.1 million in stock-based compensation expense, an increase of $776,000 in online direct marketing expense associated with traffic acquisition, an increase of $773,000 in advertising for Mercantila’s Web properties, an increase of $484,000 in Mercantila personnel costs, exclusive of stock-based compensation expenses, and an increase of $385,000 in employee separation costs.

The dollar increase for the six months ended June 30, 2010 as compared to the six months ended June 30, 2009 was primarily attributable to an increase of $1.2 million in stock-based compensation expense, an increase of $1.2 million in online direct marketing expense associated with traffic acquisition, an increase of $773,000 in advertising for Mercantila’s Web properties, and an increase of $484,000 in Mercantila personnel costs, exclusive of stock-based compensation expenses. Partially offsetting those increases was a decrease of $589,000 in other market research and public relations costs.

We expect to continue to invest in marketing initiatives to promote new services.

General and Administrative Expenses. General and administrative expenses consist primarily of personnel expenses (which include salaries, stock-based compensation expense, and benefits and other employee related costs), professional service fees (which include legal, tax, and audit fees), occupancy and general office expenses, taxes, insurance expenses, certain legal settlements, and general business development and management expenses. General and administrative expenses in total dollars (in thousands) and as a percentage of total revenues for the three and six months ended June 30, 2010 and 2009 are presented below:

 

     Three months ended
June 30,
    Change
from
2009
   Six months ended
June 30,
    Change
from
2009
     2010     2009        2010     2009    

General and Administrative Expenses

   $ 6,907      $ 6,397      $ 510    $ 13,662      $ 12,639      $ 1,023

Percentage of Total Revenues

     11.6     14.6        11.3     15.3  

The dollar increase for the three months ended June 30, 2010 as compared to the three months ended June 30, 2009 was primarily attributable to an increase of $718,000 in stock-based compensation expense, which was partially offset by a decrease of $393,000 in expenses related to legal settlements and a decrease of $317,000 in employee separation costs.

 

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The dollar increase for the six months ended June 30, 2010 as compared to the six months ended June 30, 2009 was primarily attributable to an increase of $995,000 in stock-based compensation expense, an increase of $427,000 in legal fees, and an increase of $401,000 in business taxes. Partially offsetting those increases was a decrease of $855,000 in personnel expenses, exclusive of stock-based compensation expense, and a decrease of $393,000 in expenses related to legal settlements.

Depreciation and Amortization of Other Intangible Assets. Depreciation of property and equipment includes depreciation of computers, software, office equipment and fixtures, and leasehold improvements. Depreciation and amortization of other intangible assets had no material variances for the three and six months ended June 30, 2010 compared to the three and six months ended June 30, 2009.

Loss (Gain) on Investments, Net. For the three and six months ended June 30, 2010, we did not record any gain or loss on investments. For the three months ended June 30, 2009, we recorded a gain on investments of $335,000 on the sale of investments originally purchased as auction rate securities. For the six months ended June 30, 2009, we recorded a loss on investments of $5.0 million, which consisted of $5.4 million in other-than-temporary impairments related to our illiquid auction rate securities, which was partially offset by the $335,000 gain on the sale of a portion of those investments in April 2009. We sold the remainder of those investments originally purchased as auction rate securities in the second half of 2009.

Other Loss (Income), Net. Other loss (income), net for the three and six months ended June 30, 2010 and 2009 are presented below (in thousands):

 

     Three months ended
June 30,
    Change
from
2009
    Six months ended
June 30,
    Change
from
2009
 
     2010     2009       2010     2009    

Interest income

   $ (82   $ (711   $ 629      $ (139   $ (1,742   $ 1,603   

Increase in fair value of contingent liability

     3,500        —          3,500        3,500        —          3,500   

Foreign currency exchange loss

     32        19        13        2        56        (54

Loss on disposal of fixed assets

     72        226        (154     296        613        (317
                                                

Other loss (income), net

   $ 3,522      $ (466   $ 3,988      $ 3,659      $ (1,073   $ 4,732   
                                                

In the three months ended June 30, 2010, the financial performance of the operation of the Make The Web Better assets acquired on April 1, 2010 was greater than expected; as a consequence, we estimated that the fair value of the related contingent consideration increased and we recorded a charge of $3.5 million. The decrease in interest income is primarily attributable to a decrease in interest rates.

Income Tax Expense. We recorded income tax expense of $685,000 and $1.3 million in the three and six months ended June 30, 2010, respectively. The Company recorded income tax expense of $82,000 and $283,000 in the three and six months ended June 30, 2009, respectively. In the three and six months ended June 30, 2010 and 2009, income tax expense included U.S. federal, state, and foreign income taxes. In the three months ended June 30, 2010, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences and the application of a valuation allowance against deferred tax assets arising during the period. In the six months ended June 30, 2010, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences and the release of a valuation allowance against deferred tax assets arising during the period. In the three and six months ended June 30, 2009, income tax expense differed from the taxes at the statutory rates primarily due to non-deductible permanent differences, the U.S. federal alternative minimum tax, and the reversal of a valuation allowance against deferred tax assets reversing during the period.

Non-GAAP Financial Measures

We prepare our consolidated financial statements financial statements in accordance with accounting principles generally accepted in the United States of America (“GAAP”). Regulation G, Conditions for Use of Non-GAAP Financial Measures, and other SEC regulations define and prescribe the conditions for use of certain non-GAAP financial information. Our measure of Adjusted EBITDA meets the definition of a non-GAAP financial measure. Adjusted EBITDA is calculated by adjusting net income (loss) determined in accordance with GAAP to exclude the effects of income taxes, depreciation, amortization of intangible assets, stock-based compensation expense, loss (gain) on investments, and other loss (income), net (which includes such items as adjustments to the fair values of contingent liabilities related to business combinations, interest income, foreign currency gains or losses, and gains or losses from the disposal of assets).

 

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We believe that Adjusted EBITDA provides meaningful supplemental information regarding InfoSpace’s performance by excluding certain expenses and gains that we believe are not indicative of our operating results. We use this non-GAAP financial measure for internal management purposes, when publicly providing guidance on possible future results, and as a means to evaluate period-to-period comparisons. We believe that Adjusted EBITDA is a common measure used by investors and analysts to evaluate our performance, that it provides a more complete understanding of the results of operations and trends affecting our business when viewed together with GAAP results, and that management and investors benefit from referring to this non-GAAP financial measure. Items excluded from Adjusted EBITDA are significant and necessary components to the operations of our business, and, therefore, Adjusted EBITDA should be considered as a supplement to, and not as a substitute for or superior to, GAAP net income (loss). Other companies may calculate Adjusted EBITDA differently, and therefore our Adjusted EBITDA may not be comparable to similarly titled measures of other companies. A reconciliation of our Adjusted EBITDA to net income (loss), which we believe to be the most comparable GAAP measure, is presented for the three and six months ended June 30, 2009 and 2010 below (in thousands):

 

     Three months ended
June 30,
    Six months ended
June 30,
 
     2010    2009     2010    2009  

Net income (loss)

   $ 670    $ 2,885      $ 2,214    $ (2,150

Depreciation and amortization of intangible assets

     1,764      1,811        3,527      3,622   

Stock-based compensation

     3,959      1,389        6,239      3,440   

Loss (gain) on investments

     —        (335     —        5,016   

Other loss (income), net

     3,522      (466     3,659      (1,073

Income tax expense

     685      82        1,255      283   
                              

Adjusted EBITDA

   $ 10,600    $ 5,366      $ 16,894    $ 9,138   
                              

Liquidity and Capital Resources

Cash, Cash Equivalents, and Short-Term Investments

Our principal source of liquidity is our cash and cash equivalents and short-term investments. As of June 30, 2010, we had cash and marketable investments of $223.4 million, consisting of cash and cash equivalents of $55.1 million and available-for-sale short-term investments of $168.2 million. We generally invest our excess cash in high quality marketable investments. These investments include securities issued by U.S. government agencies, certificates of deposit, money market funds, and taxable municipal bonds. All of our financial instrument investments held at June 30, 2010 have minimal default risk and short-term maturities.

We plan to use our cash to fund operations, develop technology, advertise, market and distribute our products and application services, and continue the enhancement of our network infrastructure. An important component of our strategy for future growth is to acquire technologies and businesses, and we plan to use our cash to acquire and integrate acceptable targets that we may identify. These targets may include businesses, products, or technologies unrelated to online search or e-commerce. We may use a portion of our cash for special dividends or for common stock repurchases.

We believe that existing cash and cash equivalents, short-term investments, and cash generated from operations will be sufficient to meet our anticipated cash needs for working capital and capital expenditures for at least the next 12 months. However, the underlying levels of revenues and expenses that we project may not prove to be accurate. Our anticipated cash needs exclude any payments that may result from pending or future litigation matters. In addition, we evaluate acquisitions of businesses, products, or technologies from time to time. Any such transactions, if completed, may use a significant portion of our cash balances and marketable investments. If we are unable to liquidate our investments when we need liquidity for acquisitions or business purposes, we may need to change or postpone such business purposes or find alternative financing for such business purposes, if available. We may seek additional funding through public or private financings or other arrangements prior to such time. Our ability to raise funds may be adversely affected by a number of factors, including factors beyond our control, such as economic conditions in markets in which we operate and from which we generate revenues, and increased uncertainty in the financial, capital, and credit markets. Adequate funds may not be available when needed or may not be available on favorable terms. If we raise additional funds by issuing equity securities, dilution to existing stockholders may result. If funding is insufficient at any time in the future, we may be unable, or delayed in our ability, to develop or enhance our products or services, take advantage of business opportunities, or respond to competitive pressures, any of which could harm our business.

 

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Contractual Obligations and Commitments

Our capital lease commitments are included in our Unaudited Condensed Consolidated Balance Sheets. Our contractual commitments are as follows for the remainder of 2010 and the years ending December 31 (in thousands):

 

     Remainder
of 2010
   2011    2012    2013    2014 and
thereafter
   Total

Operating lease commitments

   $ 1,002    $ 1,836    $ 1,624    $ 271    $ —      $ 4,733

Purchase commitments

     1,323      1,261      1,026      493      —        4,103

Capital lease commitments (net of imputed interest and executory costs)

     285      211      —        —        —        496
                                         

Total

   $ 2,610    $ 3,308    $ 2,650    $ 764    $ —      $ 9,332
                                         

As of June 30, 2010, we have pledged $4.5 million as collateral for standby letters of credit and bank guaranties for certain of our property leases, which is included in other long-term assets in our Unaudited Condensed Consolidated Balance Sheets.

Cash Flows

Our net cash flows were comprised of the following for the six months ended June 30, 2010 and 2009 (in thousands):

 

     Six months ended
June 30,
     2010     2009

Net cash provided by operating activities

   $ 14,175      $ 9,943

Net cash provided (used) by investing activities

     (43,057     4,137

Net cash provided by financing activities

     263        159
              

Net increase (decrease) in cash and cash equivalents

   $ (28,619   $ 14,239
              

Net cash provided by operating activities consists of net income (loss) offset by certain adjustments not affecting current period cash flows and the effect of changes in our operating assets and liabilities.

Net cash provided by operating activities was $14.2 million for the six months ended June 30, 2010, consisting of our net income of $2.2 million, non-cash charges of $11.3 million (consisting of stock-based compensation expense, depreciation and amortization of intangible assets, amortization of premium on investments, and loss on disposal or sale of assets), and changes in our operating assets and liabilities of $9.6 million (primarily consisting of decreases in accounts receivable, other long-term assets, and prepaid expenses and other current assets). These increases were partially offset by cash used by changes in our operating assets and liabilities of $7.8 million (consisting of decreases in accrued expenses and other current and long-term liabilities and accounts payable) and reclassification of the tax benefit from stock-based award activity to financing activities of $1.1 million.

Net cash provided by operating activities was $9.9 million for the six months ended June 30, 2009, consisting of non-cash charges of $12.9 million (primarily consisting of loss on investments, net, depreciation and amortization, stock-based compensation expense, and loss on disposal of assets) and changes in our operating assets and liabilities of $5.1 million (consisting of increases in accrued expenses and other current and long-term liabilities and a decrease in other long-term assets). These increases were partially offset by our net loss of $2.2 million and cash used by changes in our operating assets and liabilities of $5.9 million (consisting of increases in accounts receivable, notes and other receivables, and prepaid expenses and other current assets and a decrease in accounts payable).

Net cash used by investing activities primarily consists of transactions related to our marketable investments, purchases of property and equipment, and proceeds from the sale of certain assets.

Net cash used by investing activities was $43.1 million for the six months ended June 30, 2010, primarily consisting of purchases of $141.8 million of marketable investments, $16.0 million of net cash used in business acquisitions, and purchases of $997,000 of property and equipment. Partially offsetting cash used by investing activities were proceeds of $115.5 million from the sales and maturities of our marketable investments and proceeds of $306,000 from the sale of assets.

Net cash provided by investing activities was $4.1 million for the six months ended June 30, 2009, primarily consisting of $43.7 million from the maturities of our marketable investments and proceeds of $320,000 from the sale of assets. These increases in cash were partially offset by purchases of $38.1 million of marketable investments and $1.4 million in purchases of property and equipment and cash used in a business acquisition for $395,000.

 

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Net cash used by financing activities consists of proceeds from the issuance of stock through the exercise of stock options and our employee stock purchase plan, tax payments from shares withheld upon vesting of restricted stock units, repayments of capital lease obligations, and excess tax benefits generated by stock-based award activity.

Net cash provided by financing activities totaled $263,000 for the six months ended June 30, 2010 and primarily consisted of cash proceeds of $1.8 million from exercise of options and sales of shares through our employee stock purchase plan and tax benefits of $1.1 million generated by stock-based award activity. Partially offsetting cash provided by financing activities was $2.4 million in tax payments from shares withheld upon vesting of restricted stock units and repayment of $291,000 of capital lease obligations.

Net cash provided by financing activities totaled $159,000 in the six months ended June 30, 2009, and primarily consisted of the cash proceeds of $252,000 from sales of shares through our employee stock purchase plan.

Acquisitions

Make The Web Better. On April 1, 2010, we purchased assets consisting of Web properties and licenses for content and technology from Make The Web Better, a search distribution partner and privately-held developer of online products used on social networking sites, for $13.0 million. The purchase consideration included an initial cash payment of $8.0 million, with up to $5.0 million in additional consideration payable in cash contingent on expected financial performance. The financial performance of the operation of the Make the Web Better assets in the three months ended June 30, 2010 was greater than was expected when the assets were acquired. As a consequence, our estimate of the fair value of the related contingent consideration increased and we recorded a charge of $3.5 million to other loss (income), net in the three and six months ended June 30, 2010.

Mercantila. On May 10, 2010, we acquired certain assets from Mercantila, Inc., an internet e-commerce company, at a cost of $7.8 million in cash, plus $6.0 million in net liabilities assumed.

Item 3. —Quantitative and Qualitative Disclosures About Market Risk

Our market risks at June 30, 2010 have not changed materially from those discussed in Part II, Item 7A of our Annual Report on Form 10-K for the year ended December 31,  2009 on file with the Securities and Exchange Commission.

Item 4. —Controls and Procedures

(a) Evaluation of disclosure controls and procedures. Our management evaluated, with the participation of our Chief Executive Officer and our Chief Financial Officer, the effectiveness of our disclosure controls and procedures as of the end of the period covered by this Quarterly Report on Form 10-Q. Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that our disclosure controls and procedures are effective to ensure that information we are required to disclose in reports that we file or submit under the Securities Exchange Act of 1934, as amended, is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure, and that such information is recorded, processed, summarized, and reported within the time periods specified in Securities and Exchange Commission rules and forms.

(b) Changes in internal control over financial reporting. There was no change in our internal control over financial reporting that occurred during the period covered by this Quarterly Report on Form 10-Q that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934, as amended).

PART II—OTHER INFORMATION

Item 1. —Legal Proceedings

See the litigation disclosure under the subheading “Litigation” in Note 6 to our Unaudited Condensed Consolidated Financial Statements included in Part I, Item 1 of this Quarterly Report on Form 10-Q.

 

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Item 1A. —Risk Factors

RISKS RELATED TO OUR BUSINESS

Most of our revenue is attributable to Google and Yahoo!, and the loss of, or a payment dispute with, either of these customers (or any future significant customer) would harm our business and financial results.

We acquire rights to content from third-party content providers, whom we refer to as customers, and our future success in our online search business is highly dependent upon our ability to maintain and renew relationships with these customers. Google and Yahoo! jointly accounted for over 95% and 85% of our total revenues in the first and second quarters of 2010, respectively, and we expect that concentration will continue. Our principal agreements with Google and Yahoo! expire in April and January 2011, respectively. In addition, Google, Yahoo!, and our other customers are competitors of each other, and the way we do business with one of them may not be acceptable to one or more of their competitors with whom we also do business. This may result in Google, Yahoo!, or other customers not renewing their agreements with us on favorable terms or at all. Google, Yahoo!, and other customers are also our competitors in online search, and they have had relationships with some of our current and potential search distribution partners. In addition to competing with us on their own Web properties, our customers may, in the future, contract directly with our distribution partners to provide online search services. If Google, Yahoo!, or any future significant customer were to substantially reduce or eliminate the content it provides to us or to our distribution partners, not renew its contract with us on favorable terms, be unwilling to pay us amounts that it owes us, or dispute amounts it owes us or has paid to us for any reason (including for the reasons described in the risk factors below), our business and financial results could materially suffer to the extent we were unable to establish and maintain new customer relationships, or expand our remaining customer relationships, to replace the lost or disputed revenue.

Failure by us or our search distribution partners to comply with the guidelines promulgated by Google and Yahoo! relating to the use of content may cause that customer to temporarily or permanently suspend the use of its content or terminate its agreement with us, or may require us to modify or terminate certain distribution relationships.

If we or our search distribution partners fail to meet the guidelines promulgated by Google or Yahoo! for the use of their content, we may not be able to continue to use their content or provide the content to such distribution partners. Our agreements with Google and Yahoo! give them the ability to suspend the use and the distribution of their content for non-compliance with their requirements and guidelines and, in the case of breaches of certain other provisions of their agreements, to terminate their agreements with us immediately, regardless of whether such breaches could be cured.

The terms of the customer agreements with Google and Yahoo! and related guidelines are subject to differing interpretations by the parties. Google and Yahoo! have in the past suspended, and may in the future, suspend their content provided to our websites or the websites of our distribution partners, without notice, if they believe that we or our distribution partners are not in compliance with their guidelines or are in breach of the terms of their agreements. During such suspension we will not receive any revenue from our site or the site of the affected distribution partner with respect to the suspended content, and the loss of such revenue could harm our business and financial results.

Additionally, as our business evolves, we expect that the guidelines of Google and Yahoo!, as well as the parties’ interpretations of compliance, breach, and sufficient justification for suspension of use of content will change. This may result in further suspensions of our use and may require us to terminate our agreement with distribution partners or forego entering into agreements with distribution partners. The loss or reduction of content that we can use or make available to our distribution partners as a result of suspension, termination, or modification of distribution or customer agreements, particularly our Google and Yahoo! agreements, could have a material adverse effect on our business and financial results.

A substantial portion of our revenues is dependent on our relationships with a small number of distribution partners who distribute our online search services, the loss of which could have a material adverse effect on our business and financial results.

We rely on our relationships with online search distribution partners, including Internet service providers, Web portals, and software application providers, for distribution of our online search services. In the first and second quarter of 2010, 78% and 55%, respectively, of our total revenues came from searches conducted by end users on the Web properties of our search distribution partners. If we had not purchased certain assets from Make The Web Better on April 1, 2010, and the revenue generated by those assets had remained owned by a search distribution partner, 67% of our total revenues in the second quarter of 2010 would have come from searches conducted by end users on the Web properties of our search distribution partners. We generated approximately 45% and 29% of our total revenues through relationships with our top five distribution partners in the first and second quarters of 2010, respectively. There can be no assurance that these relationships will continue or will result in benefits to us that outweigh their cost. Moreover, as the proportion of our revenue generated by distribution partners has increased in previous quarters, we have experienced, and expect to continue to experience, less control and visibility over performance. One of our challenges is providing our distribution partners with relevant services at competitive prices in rapidly evolving markets. Distribution partners may create their own services or may seek to license services from our competitors or replace the services that we provide. Also, many of our distribution partners have limited operating histories and evolving business models that may prove unsuccessful even if our services are relevant and our prices competitive. If we are unable to maintain relationships with our distribution partners, our business and financial results could be materially adversely affected.

 

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Our agreements with most of our distribution partners come up for renewal in 2010 and 2011. In addition, some of our distributors have the right to immediately terminate their agreements in the event of certain breaches. Such agreements may be terminated, may not be renewed, or may not be renewed on favorable terms, any of which could adversely impact our business and financial results. We anticipate that our distribution costs for our revenue-sharing arrangements with our distribution partners will increase as revenue grows, and may increase as a percentage of revenues to the extent that there are changes to existing arrangements or we enter into new arrangements on less favorable terms.

In addition, competition continues for quality consumer traffic in the online search market. Recently, we have experienced increased competition from our customers as they seek to enter into content provider agreements directly with our existing or potential distribution partners, making it increasingly difficult for us to renew agreements with existing major distribution partners or to enter into distribution agreements with new partners on favorable terms. Any difficulties that we experience with maintaining or strengthening our business relationships with our major distribution partners could have an adverse effect on our business and financial results.

If advertisers perceive that they are not receiving quality traffic to their sites through their paid-per-click advertisements, they may reduce or eliminate their advertising through the Internet. Further, if Google, Yahoo!, or other customers perceive that they are not receiving quality traffic from our own websites or the Web property of a distribution partner, they may reduce the fees they pay to us. Either of these factors could have a negative material impact on our business and financial results.

Most of our revenue from our online search business is based on the number of paid clicks on commercial search results served on our owned and operated Web properties or our distribution partners’ Web properties. Each time a user clicks on a commercial search result, the customer that provided the commercial search result receives a fee from the advertiser who paid for the click and the customer pays us a portion of that fee. If the click originated from one of our distribution partners’ Web properties, we share a portion of the fee we receive with such partner. If an advertiser receives what it perceives to be poor quality traffic, meaning that the advertiser’s objectives are met for an insufficient percentage of clicks for which it pays, the advertiser may reduce or eliminate its advertisements through the customer that provided the commercial search result to us. This leads to a loss of revenue for our customers and consequently fewer fees paid to us. Also, if a customer perceives that the traffic originating from one of our Web properties or the Web property of a distribution partner is of poor quality, the customer may discount the amount it charged all advertisers whose paid click advertisements appeared on such website or Web property based on the amount of poor quality traffic the customer deems to have been generated, and accordingly may reduce the fees it would have otherwise paid us. The customer may also suspend or terminate our ability to provide its content through such websites or Web properties if such activities are not modified to satisfy the customer’s concerns. The payment of fewer fees to us or the inability to provide content through such websites or Web properties, particularly the content of Google and Yahoo!, could have a material negative effect on our business and financial results.

Poor quality traffic may be a result of invalid click activity. Such invalid click activity occurs, for example, when a person or automated click generation program clicks on a commercial search result to generate fees for the Web property displaying the commercial search result rather than to view the Web page underlying the commercial search result. Some of this invalid click activity is referred to as “click fraud.” When such invalid click activity is detected, the customer may not charge the advertiser or may refund the fee paid by the advertiser for such invalid clicks. If the invalid click activity originated from one of our distribution partners’ Web properties or our owned and operated properties, such non-charge or refund of the fees paid by the advertisers in turn reduces the amount of fees the customer pays us. The resulting loss of revenue, particularly with respect to Google or Yahoo! content, could harm our business and financial results.

Initiatives we undertake to improve the quality of the traffic that we send to our customers may not be successful and, even if successful, may result in loss of revenue in a given reporting period. For example, during the first half of 2010, we discontinued traffic that was not considered to be high quality, and those discontinuations had a material negative impact on our revenues for the first and second quarters of 2010.

A significant part of our growth strategy involves identifying, acquiring, or developing and successfully integrating businesses or technologies, some or all of which may not be complementary to our current operations or leverage our current infrastructure and operational experience. Our financial and operating results will suffer if we are unsuccessful in integrating our acquisitions.

 

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An important component of our strategy for future growth is to identify, acquire, or develop and successfully integrate new businesses or technologies into InfoSpace. For example, as a result of our May 2010 acquisition of certain assets of Mercantila, Inc., we began operating an e-commerce business that includes a collection of more than 200 specialty online retail stores. We may be unable to identify acceptable targets for acquisition or development, and if we are successful, we will likely decide to diversify our business by acquiring targets that may not be complementary to our current online search or e-commerce operations and may not leverage our existing infrastructure or operational experience. Further, competition for acquisitions has been, and may in the future continue to be, intense. As a result, even if we are able to identify an acquisition that we would like to consummate, we may not be able to complete the acquisition on commercially reasonable terms. Moreover, any such acquisition may not prove successful. In the past, our financial results have suffered significantly due to impairment charges of goodwill and other intangible assets related to prior acquisitions.

Acquisitions or development of new businesses or technologies may involve the use of cash, potentially dilutive issuances of stock, the potential incurrence of debt and contingent liabilities, or amortization expenses related to certain intangible assets. If outside financing is needed, we may be unable to obtain it on acceptable terms, or at all, in light of the current capital market conditions and other factors. The cost of development or acquisition, as the case may be, may be greater than anticipated by us or investors.

Acquisitions involve numerous other risks that could materially and adversely affect our results of operations or stock price, including:

 

   

difficulties in assimilating the operations, products, technology, information systems and management, and other personnel of acquired companies that result in unanticipated costs, delays, or allocation of resources;

 

   

the dilutive effect on earnings per share as a result of issuances of stock as well as incurring operating losses and the amortization of intangible assets for the acquired business;

 

   

initial stock volatility due to the perceived value of the acquired business by investors;

 

   

diverting management’s attention from current operations and other business concerns, including potential strain on financial and managerial controls and reporting systems and procedures;

 

   

disruption of our ongoing business or the ongoing acquired business, including impairment of existing relationships with our employees, distributors, suppliers, or customers or those of the acquired companies;

 

   

diversion of capital from other uses;

 

   

failing to achieve the anticipated benefits of the acquisitions in a timely manner, or at all;

 

   

difficulties in acquiring foreign companies, including risks related to integrating operations across different cultures and languages, currency risks, and the particular economic, political, and regulatory risks associated with specific countries; and

 

   

adverse outcome of litigation matters assumed in or arising out of the acquisitions.

Developing or acquiring a technology, service, or business, and then integrating that technology, service, or business into InfoSpace, will be complex, time consuming, and expensive, particularly if we acquire a technology, service, or business that is not in our current industries of online search and e-commerce. For example, the successful integration of an acquisition requires, among other things, that we: retain key personnel; maintain and support preexisting supplier, distribution, and customer relationships; and integrate accounting and support functions. The complexity of the technologies and operations being integrated and, in the case of an acquisition, the disparate corporate cultures and/or industries being combined, may increase the difficulties of integrating an acquired technology or business. If our integration of acquired or internally developed technologies or businesses is not successful, we may experience adverse financial or competitive effects. Moreover, there can be no assurance that the short- or long-term value of any technology or business that we develop or acquire will be equal to the value of the cash and other consideration that we paid or expenses we incurred.

Our new e-commerce business is subject to many risks.

Our e-commerce business is still in development, and we cannot ensure that it will succeed. We intend to try to offer additional types of products or related e-commerce services through our e-commerce sites, but cannot provide assurance that any of them will be successful or that their failure will not result in harm to our overall business. The additions and modifications to our business as a result of our expansion into e-commerce have increased the complexity of our business. Future additions to or modifications of our business are likely to have similar effects. We may not be able to manage growth in our e-commerce business effectively, which could damage our reputation, limit our growth in other areas, and negatively affect our operating results.

 

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Our new e-commerce business is subject to a number of additional risks, including the following risks and risks described elsewhere in this Item 1A, among others:

 

   

the risk that we will be unable to attract and retain customers cost-effectively, which would harm our ability to achieve and maintain profitability. Because much of our current e-commerce business is based on one-time transactions with customers for relatively high-priced items, we must constantly acquire new customers. We rely on relationships with online services, search engines, affiliate marketing websites, directories, and other websites and e-commerce businesses to host and provide content, advertising banners, and other links that direct customers to our e-commerce websites, and if we are unable to develop or maintain these relationships on acceptable terms, our ability to attract new customers could be harmed;

 

   

the risk that we may owe back taxes and penalties in the event that states in which we do not currently remit sales tax successfully assert that we are required to remit sales tax on products we sell to consumers in those states. If we are forced to remit sales tax for products sold in a particular jurisdiction, we may also be required to increase product prices for customers in that jurisdiction, which could impair our ability to compete for those customers (particularly for sales of higher value items) and harm our revenue;

 

   

the risk that we will fail to detect and sufficiently control credit card fraud, which could reduce our net revenues and our gross profit percentage;

 

   

the risk of product liability claims, which could result in costly and time-consuming litigation, decreased sales, damage to our brands, and material adverse effects on our business, financial position and operating results, particularly if the claim exceeds our or the vendor’s insurance coverage or the vendor lack the financial ability or willingness to properly indemnify us for the claim;

 

   

the risk of a significant number of merchandise returns, which could harm our business, reputation, and results of operations, and the risk that any change to returns policies intended to reduce the number of product returns may result in customer dissatisfaction, fewer initial sales, and fewer repeat customers; and

 

   

risks associated with acquisitions.

If we do not address these and other risks timely and effectively, our e-commerce business may not succeed.

We rely substantially on third-party relationships for our e-commerce business. If these relationships do not continue on favorable terms, or if the third parties do not perform in the manner we expect, our business will suffer.

We rely on our relationships with independent product vendors for almost all of the products that we offer for sale on our e-commerce websites. Our business will suffer if we are unable to develop and maintain relationships with product vendors that allow us to obtain sufficient quantities of merchandise on acceptable commercial terms and in a timely manner. We have relationships with approximately 2,000 vendors for the products we offer for sale on our websites. We depend on our vendors to provide almost all of the products we sell, as we do not generally keep products we sell in inventory. If we do not maintain our existing relationships or build new relationships with vendors on acceptable commercial terms, we may be unable to maintain a broad selection of merchandise. We generally do not have long-term supply agreements with our vendors. As a result, we cannot guarantee high levels of product quality and selection because our vendors generally do not have a continuing obligation to provide us with merchandise at historical levels or at all. In most cases, our relationships with our suppliers do not restrict the suppliers from selling their inventory to other traditional or online merchandise liquidators or retailers, which could in turn limit the selection of products available on our websites, particularly during peak seasons for those products.

In addition, we rely upon third-party delivery services for the shipment of products to customers. These relationships may not continue on terms we find acceptable, or at all, if our relationships with third-party delivery services are terminated or impaired, or if these third parties are unable to deliver products for us because of labor issues, deteriorating financial or business conditions, natural disasters, or any other reason, we would be required to use alternative carriers for the shipment of products to our customers. In any of these circumstances, we may be unable to engage alternative carriers on a timely basis, upon terms we find acceptable, or at all. In addition, third-party delivery services may not ship to our customers on a timely and consistent basis. Unexpected increases in shipping costs, delivery times, or damaged products could harm our business, reputation, and financial condition and results of operations.

We also have agreements with third-party service providers to provide processing and administrative functions with respect to our e-commerce call center, warehouse, email and online marketing, search engine optimization, and other areas. Services provided by third parties could be interrupted as a result of many factors, such as natural disasters, failures of the providers’ technology or personnel, or inability to manage peak demand during busy seasons. Failure by third parties to provide us with these services on a timely basis and within our service level expectations could harm our business. In addition, to the extent we are unable to maintain our outsourcing arrangements, we may incur substantial costs to either bring those services in-house or transition them to other providers, which may not be successful. In the interim, we could face significant losses in revenue due to decreased ability to market, accept, or fulfill orders.

 

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We have a history of incurring net losses, we may incur net losses in the future, and we may not be able to regain or sustain profitability on a quarterly or annual basis.

We have incurred net losses on an annual basis for all but four of the years since our inception, and as of June 30, 2010, we had an accumulated deficit of $1.0 billion. We may incur net losses in the future, including but not limited to losses resulting from our operations, loss on investments, the impairment of goodwill or other intangible assets, losses from acquisitions, restructuring charges, or expense related to stock-based compensation and other equity awards. There can be no assurance that we will be able to achieve and maintain consistent profitability in the future.

Our financial results are likely to continue to fluctuate, which could cause our stock price to continue to be volatile or decline.

Our financial results have varied on a quarterly basis and are likely to continue to fluctuate in the future. These fluctuations could cause our stock price to be volatile or decline. Many factors could cause our quarterly results to fluctuate materially, including but not limited to:

 

   

changes or potential changes in our relationships with Google or Yahoo! or future significant search customers, such as effects of changes to their requirements or guidelines or their measurement of the quality of traffic we send to their advertiser networks, and any resulting loss or reduction of content that we can use or make available to our distribution partners;

 

   

the loss, termination, or reduction in scope of key distribution relationships in our search business, for example as a result of distribution partners licensing content directly from content providers, or any suspension by our customers (particularly Google and Yahoo!) of the right to use or distribute content on the Web properties of our distribution partners;

 

   

our strategic initiatives and our ability to implement those initiatives in a cost effective manner;

 

   

the mix of search revenues generated by our owned and operated Web properties versus our distribution partners’ Web properties (for example, such as the improvement in our financial results for the second quarter of 2010 that resulted from our acquisition of certain assets including Web properties from Make The Web Better, a distribution partner, in April 2010);

 

   

the mix of revenues generated by our search business and our e-commerce business versus other businesses we develop or acquire;

 

   

our ability to attract and retain quality traffic;

 

   

litigation expenses, including but not limited to settlement costs;

 

   

variable demand for our products and services, rapidly evolving technologies and markets, and consumer preferences;

 

   

the effects of acquisitions by us, our customers, or our distribution partners;

 

   

increases in the costs or availability of content for our search services or the costs or availability of products for our e-commerce business;

 

   

additional restructuring charges we may incur in the future;

 

   

seasonality of e-commerce business;

 

   

the continuing impact of the economic downturn, which has in the past led to and may in the future lead to lower online advertising spend by advertisers and decreases in discretionary consumer spending, resulting in lower monetization rates for paid search and decreased revenue or slower revenue growth from our e-commerce sites (particularly since we offer many products that consumers may view as discretionary items rather than necessities);

 

   

changes in commodity prices affecting our e-commerce business, which may increase our vendors’ costs and, as a result, our costs for acquiring the products we sell;

 

   

changes in energy costs, which may increase our shipping costs in our e-commerce business, particularly since many of the products we sell have high shipping costs that are particularly susceptible to additional costs resulting from increases in energy prices;

 

   

the adoption of new laws, rules or regulations, or new court rulings, that adversely affect our ability to continue to acquire content and distribute our search services or the ability of our customers or distribution partners to continue to provide us with their content or distribute our services, that affect our ability to operate an e-commerce business or offer non-search products and services such as our recently launched Haggle.com auction service, or increase our potential liability;

 

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impairment in the value of long-lived assets or the value of acquired assets, including goodwill, core technology, and acquired contracts and relationships;

 

   

the effect of changes in accounting principles or in our accounting treatment of revenues or expenses; and

 

   

the adoption of new regulations or accounting standards.

For these reasons, among others, you should not rely on period-to-period comparisons of our financial results to forecast our future performance. Furthermore, our fluctuating operating results may fall below the expectations of securities analysts or investors and financial results volatility could make us less attractive to investors, either of which could cause the trading price of our stock to decline.

Our stock price has been and is likely to continue to be highly volatile.

The trading price of our common stock has been highly volatile. Since our common stock began trading on December 15, 1998, our stock price has ranged from $3.70 to $1,385.00 (as adjusted for stock splits). Between January 8, 2008, which was the date that we paid our most recent special dividend, and June 30, 2010, our stock price ranged from $5.20 to $12.52. On July 30, 2010, the closing price of our common stock was $7.83. Our stock price could decline or fluctuate wildly in response to many factors, including the other risks discussed in this section and the following, among others:

 

   

actual or anticipated variations in quarterly and annual results of operations;

 

   

announcements of significant acquisitions, dispositions, charges, changes in or loss of material contracts, new search customers, new distribution partner relationships, or other business developments by us, our customers, distribution partners, or competitors;

 

   

conditions or trends in the online search services or e-commerce markets;

 

   

changes in general conditions in the U.S. and global economies or financial markets;

 

   

announcements of technological innovations or new services by us or our competitors;

 

   

changes in financial estimates or recommendations by securities analysts;

 

   

disclosures of any accounting issues, such as restatements or material weaknesses in internal control over financial reporting;

 

   

equity offerings resulting in the dilution of stockholders;

 

   

the adoption of new regulations or accounting standards; and

 

   

announcements or publicity relating to litigation and similar matters.

In addition, the stock market in general, and the NASDAQ Global Select Market and the market for Internet and technology company securities in particular, have experienced extreme price and volume fluctuations. These broad market and industry factors and general economic conditions may materially and adversely affect our stock price. Our stock has been subject to such price and volume fluctuations in the recent past. Often, class action litigation has been instituted against companies after periods of volatility in the overall market and in the price of such companies’ stock. If such litigation were to be instituted against us, even if we were to prevail, it could result in substantial cost and diversion of management’s attention and resources.

Our recently launched e-commerce and Haggle.com businesses expose us to new regulatory risks.

In May 2010, we acquired certain assets from Mercantila, Inc. and began operating an e-commerce business. In that business, we are subject to the same federal, state, and local laws as other companies conducting a retail business on the Internet. Today there are relatively few laws specifically directed towards e-commerce and conducting business on the Internet. However, due to the increasing popularity and use of the Internet, many laws and regulations relating to the Internet are being debated at the state and federal levels. These laws and regulations could cover issues such as user privacy, behavioral advertising, fraud, product quality and safety, taxation, advertising, intellectual property rights, and information security. Additionally, laws governing the safety of the products that we sell may adversely affect us. Unfavorable laws and regulations could diminish the demand for our products, increase our cost of doing business, and prevent us from offering products or conducting business in jurisdictions for which regulatory compliance becomes too burdensome or expensive.

 

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In the fourth quarter of 2009, we launched www.haggle.com, a competitive shopping website. Shoppers pre-purchase packs of bids for a small fee, and the bidding itself helps cover the cost of the items up for auction. In some cases, the total amount spent on bids used during the auction exceeds the cost of the item. In others, the total amount spent on bids is less than the cost of the item. The progress and success of a new business line entails substantial uncertainty. In particular, it is unclear how current and future governmental regulation will affect the Haggle.com business. Numerous states and foreign jurisdictions have regulations regarding auctions and may attempt to impose those regulations on us or on Haggle.com users. We must also comply with federal and state laws and regulations governing online promotions and the taxation of Internet commerce, and addressing these regulations could require us to develop additional technology or otherwise expend significant time and expense. We understand that some academics and others have suggested that prepaid bidding fee auctions resemble games of chance and/or gambling. We believe that the results of Haggle.com auctions depend on the skill of the participants and that, because the last bidder purchases the item at the final bid price, the items in the auction are not “prizes” won by “wagering.” If lawmakers or regulators were to decide that bidding fee auctions are games of chance or constitute gambling, businesses like Haggle.com could become illegal or subject to regulation as online gambling. We would be unable to conduct our Haggle.com business in any jurisdiction that prohibits prepaid bidding fee auctions, and we may be unable to continue operating Haggle.com in other jurisdictions where regulatory compliance becomes too burdensome or expensive.

If we are unable to hire, retain, and motivate highly qualified employees, including our key employees, we may not be able to successfully manage our business.

Our future success depends on our ability to identify, attract, hire, retain, and motivate highly skilled management, technical, sales and marketing, and corporate development personnel. Qualified personnel with experience relevant to our online search and e-commerce businesses are scarce and competition to recruit them is intense. If we fail to successfully hire and retain a sufficient number of highly qualified employees, we may have difficulties in supporting our customers or expanding our business. Realignments of resources, reductions in workforce, or other operational decisions have created and could continue to create an unstable work environment and may have a negative effect on our ability to hire, retain, and motivate employees.

Our business and operations are substantially dependent on the performance of our key employees, all of whom are employed on an at-will basis. We have recently experienced significant changes at our executive management level and we may experience more changes in the future. Changes of management or key employees may cause disruption to our operations, which may materially and adversely affect our business and financial results or delay achievement of our business objectives. In addition, if we lose the services of one or more key employees and are unable to recruit and retain a suitable successor(s), we may not be able to successfully and timely manage our business or achieve our business objectives. For example, the success of our new e-commerce business is dependent on the knowledge, experience, and relationships of the key leadership personnel who joined us in the acquisition of the Mercantila assets. There can be no assurance that any retention program we initiate will be successful at retaining employees, including key employees.

In light of current market conditions, the value of stock options or restricted stock units granted to employees may cease to provide sufficient incentive to our employees.

Like many technology companies, we use stock options, restricted stock units, and other equity-based awards to recruit technology professionals and senior level employees. We now issue only restricted stock units to employees, other than executives and selected employees, because stock options are not currently seen as providing enough incentive to attract or retain employees. With respect to those employees to whom we issue options, we face a significant challenge in retaining them if the value of these stock options (together with the value of any restricted stock units) is either not substantial enough or so substantial that the employee leaves after their stock options or restricted stock units have vested. If our stock price does not increase significantly above the exercise prices of our options, we may need to issue new options, in order to motivate and retain our executives; or if option programs become impracticable, we may need to issue other equity incentives or increase other forms of compensation. We may undertake or seek stockholder approval to undertake other equity-based programs to retain our employees, which may be viewed as dilutive to our stockholders or may increase our compensation costs. Additionally, there can be no assurance that any such programs we undertake, including the restricted stock unit awards, will be successful in motivating and retaining our employees.

Our online search services may expose us to claims relating to how the content was obtained, distributed, or displayed.

Our online search services link users, either directly through our own websites or indirectly through the Web properties of our distribution partners, to third-party Web pages and content in response to search queries and other requests. These services could expose us to legal liability from claims relating to such third-party content and sites, the manner in which these services are distributed and displayed by us or our distribution partners, or how the content provided by our customers was obtained or provided by our customers. Such claims could include the following: infringement of patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights; violation of privacy and publicity rights; unfair competition; defamation; providing false or misleading information; obscenity; pornography; and illegal gambling. Regardless of the legal merits of any such claims, they could result in costly litigation, be time consuming to defend, and divert management’s attention and resources. If there were a determination that we had violated third-party rights or applicable law, we could incur substantial monetary liability, be required to enter into costly royalty or licensing arrangements (if available), or be required to change our business practices. We may also have obligations to indemnify and hold harmless certain of our customers or distribution partners for damages they suffer for such violations under our contracts with them. Implementing measures to reduce our exposure to such claims could require us to expend substantial resources and limit the attractiveness of our services. As a result, these claims could result in material harm to our business.

 

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In the past, there have been legal actions brought or threatened against distributors of downloadable applications deemed to be “adware” or “spyware.” Additionally, certain bills are pending and some laws have been passed in certain jurisdictions setting forth requirements that must be met before a downloadable application is downloaded to an end user’s computer. We provide downloadable applications to promote use of our search services for our owned and operated search services. Such applications may be considered adware. We also partner with some distribution partners that provide adware to their users if the partners adhere to our strict guidelines requiring them, among other things, to disclose to the user what the adware does and to obtain the consent of the user before the application is downloaded. The adware must also be easy to uninstall. We also review the application the partner proposes to use before we distribute our results to them. We also have the right to audit our partners and, if we find that they are not following our guidelines, we can terminate our agreement with them or cease providing content to that downloadable application. Some partners have not been able to meet the new guidelines imposed by us or some of our customers, and we no longer provide the applicable content or any content, as the case may be, to such partners or certain of their downloadable applications. We work closely with some of our major customers to try to identify potential distribution partners that do not meet our guidelines or are in breach of our distribution agreements and we work with our distribution partners to ensure they deliver quality traffic. However, there can be no assurance that the measures we implement to reduce our exposure to claims that certain ways in which the content is distributed violate legal requirements will be successful. Any claims against us as a result of violations of legal requirements or contractual obligations could result in material harm to our business.

Our website and transaction management software, data center systems or the systems of the third-party co-location facilities in which they are located could fail or become unavailable, which could harm our reputation, result in a loss of revenues and current or potential customers, and cause us to breach agreements with our partners.

Any system interruptions that result in the unavailability or unreliability of our websites, transaction processing systems, or network infrastructure could reduce our sales and impair our ability to properly process transactions. We use internally developed and third-party systems for our websites and certain aspects of transaction processing. Some of our systems, particularly in our e-commerce business, are relatively new and untested, and thus may be subject to failure or unreliability. Any system unavailability or unreliability may cause unanticipated system disruptions, slower response times, degradation in customer satisfaction, additional expense, impaired quality and speed of order fulfillment, or delays in reporting accurate financial information.

We provide our own data center services for our online search business from two geographically diverse third-party co-location facilities. Although the two data centers provide some redundancy, not all of our systems and operations have backup redundancy. Our e-commerce infrastructure is partially hosted in a separate co-location facility that has system redundancy but not location redundancy, and partially hosted on a cloud-based system that has full redundancy. Our systems and operations could be damaged or interrupted by fire, flood, earthquakes, or other natural disasters, power loss, telecommunications failure, Internet breakdown, break-in, or other events beyond our control. We could face significant damage as a result of these events, and our business interruption insurance may not be adequate to compensate us for all the losses that may occur. In addition, such third-party co-location facilities and data center systems use sophisticated equipment, infrastructure, and software that may contain bugs or suffer outages that could interrupt service. During the period in which service is unavailable, we will be unable or severely limited in our ability to generate revenues, and we may also be exposed to liability from those third parties to whom we provide services through our data centers. For these reasons, our business and financial results could be materially harmed if our systems and operations are damaged or interrupted, including if we are unable to develop, or if we or our third-party co-location facility providers are unable to successfully manage, the infrastructure necessary to meet current or future demands for reliability and scalability of our systems.

If the volume of traffic to our e-commerce websites or to search services infrastructure increases substantially, we must respond in a timely fashion by expanding our systems, which may entail upgrading our technology, transaction processing systems, and network infrastructure. Our ability to support our expansion and upgrade requirements may be constrained due to our business demands or constraints of our third-party co-location facility providers. Due to the number of our customers and the services that we offer, we could experience periodic capacity constraints which may cause temporary unanticipated system disruptions, slower response times and lower levels of customer service, and limit our ability to develop, offer, or release new or enhanced products and services. Our business could be harmed if we are unable to accurately project the rate or timing of increases, if any, in the use of our search services or we fail to expand and upgrade our systems and infrastructure to accommodate these increases in a timely manner.

 

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The security measures we have implemented to secure information we collect and store may be breached. Security breaches may pose risks to the uninterrupted operation of our systems and could cause us to breach agreements with our customers and distribution partners, expose us to mitigation costs, litigation, potential investigation and penalties by authorities, potential claims by persons whose information was disclosed, and damage our reputation.

Our networks or those from third parties that we utilize may be vulnerable to unauthorized access by hackers or others, computer viruses, and other disruptive problems. Someone who is able to circumvent security measures could misappropriate our proprietary information or cause interruptions in our operations. We receive, retain, and transmit certain personal information about our e-commerce customers and website visitors, using technology and networks provided by third parties to provide the security and authentication used to transmit confidential information, including payment information. Subscribers to some of our online search services are required to provide information that may be considered to be personally identifiable or private information. Unauthorized access to, and abuse of, this information could result in significant harm to our business.

We take, and we believe our third-party providers take, reasonable steps to protect the security, integrity, and confidentiality of the information that is collected and stored, but there is no guarantee that inadvertent or unauthorized disclosure will not occur or that third parties will not gain unauthorized access despite our efforts. If such unauthorized disclosure or access does occur, we may be required under existing and proposed laws to notify persons whose information was disclosed or accessed. We also may be subject to claims of breach of contract for such disclosure, investigation and penalties by regulatory authorities, and potential claims by persons whose information was disclosed. Any such claims could result in costly litigation or liability, be time consuming to resolve, damage our reputation, and divert the attention and resources of management and other personnel.

We may need to expend significant capital or other resources protecting against the threat of security breaches or alleviating problems caused by breaches. Although we intend to continue to implement and improve our security measures, persons may be able to circumvent the measures that we implement in the future. Eliminating computer viruses and alleviating other security problems may require interruptions, delays, or cessation of service to users accessing our services, any of which could harm our business and financial results.

We may be subject to liability for our use or distribution of information that we gather or receive from third parties and indemnity protections or insurance coverage may be inadequate to cover such liability.

We obtain content and commerce information from third parties. When we distribute this information, we may be liable for the data that is contained in that content. This could subject us to legal liability for such things as defamation, negligence, intellectual property infringement, violation of privacy or publicity rights, and product or service liability, among others. Laws or regulations of certain jurisdictions may also deem some content illegal, which may expose us to legal liability as well. We also gather personal information from users in order to provide personalized services. Gathering and processing this personal information may subject us to legal liability for, among other things, negligence, defamation, invasion of privacy, or product or service liability. We are also subject to laws and regulations, both in the United States and abroad, regarding the collection and use of end user information and search related data. If we do not comply with these laws and regulations, we may be exposed to legal liability.

Although the agreements by which we obtain content contain indemnity provisions, these provisions may not cover a particular claim or type of claim or the party giving the indemnity may not have the financial resources to cover the claim. Our insurance coverage may be inadequate to cover fully the amounts or types of claims that might be made against us. Any liability that we incur as a result of content we receive from third parties could harm our financial results.

If others claim that our services infringe their intellectual property rights, we may be forced to seek expensive licenses, reengineer our services, engage in expensive and time-consuming litigation, or stop marketing and licensing our services.

Companies and individuals with rights relating to the Internet, software, and application services industries have frequently resorted to litigation regarding intellectual property rights. In some cases, the ownership or scope of an entity’s or person’s rights is unclear and may also change over time, including through changes in U.S. or international intellectual property laws or regulations or through court decisions or decisions by agencies or regulatory boards that manage such rights.

Third parties have in the past and may in the future make claims against us alleging infringement of copyrights, trademarks, trade secret rights, intellectual property or other proprietary rights, or alleging unfair competition or violations of privacy or publicity rights. Responding to any such claims could be time-consuming, result in costly litigation, divert management’s attention, cause product or service release delays, require us to redesign our services, or require us to enter into royalty or licensing agreements. Our technology and intellectual property may not be able to withstand any third-party claims or rights against their use. If a successful claim of infringement were made against us and we could not develop non-infringing technology or license the infringed or similar technology on a timely and cost-effective basis, our business could suffer.

 

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We do not regularly conduct patent searches to determine whether the technology used in our services infringes patents held by third parties. Patent searches may not return every issued patent that may be deemed relevant to a particular product or service. It is therefore difficult to determine, with any level of certainty, whether a particular product or service may be construed as infringing a U.S. or foreign patent. Because patent applications in the United States are not immediately publicly disclosed, applications may have been filed by third parties that relate to our services. In addition, other companies, as well as research and academic institutions, have conducted research for many years in the search technology field, and this research could lead to the filing of further patent applications or affect filed applications.

If we were to discover that our services violated or potentially violated third-party proprietary rights, we might be required to obtain licenses that are costly or contain terms unfavorable to us, or expend substantial resources to reengineer those services so that they would not violate such third-party rights. Any reengineering effort may not be successful, and any such licenses may not be available on commercially reasonable terms, if at all. Any third-party infringement claims against us could result in costly litigation or liability and be time consuming to defend, divert management’s attention and resources, cause product and service delays, or require us to enter into royalty and licensing agreements.

We rely heavily on our technology and intellectual property, but we may be unable to adequately or cost-effectively protect or enforce our intellectual property rights, thus weakening our competitive position and negatively impacting our business and financial results. We may have to litigate to enforce our intellectual property rights, which can be time consuming, expensive, and difficult to predict.

To protect our rights in our services and technology, we rely on a combination of copyright and trademark laws, patents, trade secrets, confidentiality agreements with employees and third parties, and protective contractual provisions. We also rely on laws pertaining to trademarks and domain names to protect the value of our corporate brands and reputation. Despite our efforts to protect our proprietary rights, unauthorized parties may copy aspects of our services or technology, or obtain and use information, marks, or technology that we regard as proprietary, or otherwise violate or infringe our intellectual property rights. In addition, it is possible that others could independently develop substantially equivalent intellectual property. If we do not effectively protect our intellectual property, or if others independently develop substantially equivalent intellectual property, our competitive position could be weakened.

Effectively policing the unauthorized use of our services and technology is time-consuming and costly, and the steps taken by us may not prevent misappropriation of our technology or other proprietary assets. The efforts we have taken to protect our proprietary rights may not be sufficient or effective, and unauthorized parties may obtain and use information, marks, or technology that we regard as proprietary, copy aspects of our services, or use similar marks or domain names. In some cases, the ownership or scope of an entity’s or person’s rights is unclear and may also change over time, including through changes in U.S. or international intellectual property laws or regulations or through court decisions or decisions by agencies or regulatory boards that manage such rights. Our intellectual property may be subject to even greater risk in foreign jurisdictions, as protection is not sought or obtained in every country in which our services and technology are available and it is often more difficult and costly to enforce our rights in foreign jurisdictions. Moreover, the laws of many countries do not protect proprietary rights to the same extent as the laws of the United States and intellectual property developed for us by our employees or contractors in foreign jurisdictions may not be as protected as if created in the United States.

We may have to litigate to enforce our intellectual property rights, to protect our trade secrets, or to determine the validity and scope of others’ proprietary rights which are sometimes not clear or may change. Litigation can be time consuming, expensive, and difficult to predict.

Delaware law and our charter documents may impede or discourage a takeover, which could cause the market price of our shares to decline.

We are a Delaware corporation and the anti-takeover provisions of Delaware law impose various impediments to the ability of a third party to acquire us, even if a change of control would be beneficial to our existing stockholders. For example, Section 203 of the Delaware General Corporation Law may discourage, delay, or prevent a change in control by prohibiting us from engaging in a business combination with an interested stockholder for a period of three years after the person becomes an interested stockholder. In addition, our certificate of incorporation and bylaws contain provisions that may discourage, delay, or prevent a third party from acquiring us without the consent of our board of directors, even if doing so would be beneficial to our stockholders. Provisions of our charter documents which could have an anti-takeover effect include:

 

   

the classification of our board of directors into three groups so that directors serve staggered three-year terms, which may make it difficult for a potential acquirer to gain control of our board of directors;

 

   

the requirement for supermajority approval of stockholders for certain business combinations;

 

   

the ability of our board of directors to authorize the issuance of shares of undesignated preferred stock without a vote of stockholders;

 

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the ability of our board of directors to amend or repeal the bylaws;

 

   

limitations on the removal of directors;

 

   

limitations on stockholders’ ability to call special stockholder meetings;

 

   

advance notice requirements for nominating candidates for election to our board of directors or for proposing matters that can be acted upon by stockholders at stockholder meetings; and

 

   

certain limited transfer restrictions on our common stock designed to preserve our federal net operating loss carryforwards (“NOLs”).

On July 19, 2002, our board of directors adopted a stockholder rights plan, pursuant to which we declared and paid a dividend of one right for each share of common stock held by stockholders of record as of August 9, 2002. Unless redeemed by us prior to the time the rights are exercised, upon the occurrence of certain events, the rights will entitle the holders to receive shares of our preferred stock, or shares of an acquiring entity. The issuance of the rights would make the acquisition of InfoSpace more expensive to the acquirer and could delay or discourage third parties from acquiring InfoSpace without the approval of our board of directors.

If there is change in our ownership within the meaning of Section 382 of the Internal Revenue Code, our ability to utilize our NOLs may be severely limited or potentially eliminated.

As of June 30, 2010, we had NOLs of approximately $815 million that will expire over an eleven to twenty year period. If we were to have a change of ownership within the meaning of Section 382 of the Internal Revenue Code (defined as a cumulative change of 50 percentage points or more in the ownership positions of certain stockholders owning 5% or more of a company’s common stock over a three-year rolling period), then under certain conditions, the amount of NOLs we could use in any one year could be limited to an amount equal to our market capitalization, net of substantial non-business assets, at the time of the ownership change multiplied by the federal long-term tax exempt rate. Our certificate of incorporation imposes certain limited transfer restrictions on our common stock that we expect will assist us in preventing a change of ownership and preserving our NOLs, but there can be no assurance that these restrictions will be sufficient. If we are unable to use our NOLs before they expire, or if the use of this tax benefit is severely limited or eliminated by a change of ownership, there could be a material reduction in the amount of after-tax income and cash flow from operations, and it could have an effect on our ability to engage in certain transactions.

Restructuring and streamlining our business, including implementing reductions in workforce, discretionary spending, and other expense reductions, may harm our business.

We have in the past and may in the future find it advisable to take measures to streamline operations and reduce expenses, including, without limitation, reducing our workforce or discretionary spending. Effecting any restructuring or streamlining places significant strains on management, our employees, and our operational, financial, and other resources. In addition, such actions could impair our development, marketing, sales, and customer support efforts or alter our product development plans. We may also incur liability from early termination or assignment of contracts, potential failure to meet required support levels of our platforms due to loss of employees who maintain such platforms, potential litigation, and other effects from such restructuring and streamlining. Such effects from restructuring and streamlining could have a negative impact on our business and financial results.

If our former mobile content providers disagree with our estimate of our royalty liability due to them, it could expose us to significant liability and adversely impact our business and financial results.

Under our agreements with our former mobile content providers, we calculated our royalty liability based on inputs from various sources of data and have been and continue to be subject to audits by our former mobile content providers. If our former mobile content providers disagree with the royalty amounts we calculated were due to them and we are unable to resolve those disagreements amicably, it may subject us to potential litigation and substantial costs even if it is found that the amounts we determined were due to them were accurate. If a former mobile content provider prevails in showing that the royalty amount due to it was not what was intended under our agreement with them and our estimate of the royalty liability was significantly different, it could subject us to significant liability to the affected mobile content provider and have an adverse effect on our business and financial results. Two former mobile content providers initiated law suits against us due to such type of disagreements which have since been settled and did not have a material adverse effect on our business or results of operations. It is possible that other former mobile content providers may disagree with the royalty amount due to them and initiate their own litigation, or may allege a disagreement as a means to obtain an audit to search for other potential claims, such as intellectual property infringement. Any claims by former mobile content providers could result in costly litigation, liability, and diversion of management’s attention and resources, and any adverse outcomes could have a material adverse effect on our business and financial results.

 

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RISKS RELATED TO THE INDUSTRIES IN WHICH WE OPERATE

We may be unable to compete successfully in the online search and e-commerce markets.

We face intense competition in the online search and e-commerce markets, both of which are extremely competitive and rapidly changing. In addition, the retail business for the products we sell on our e-commerce sites has few barriers to entry. Many of our competitors or potential competitors have substantially greater financial, technical, and marketing resources, larger customer bases, longer operating histories, more developed infrastructures, greater brand recognition, better access to vendors, or more established relationships in the industry than we have. Our competitors may be able to adopt more aggressive pricing policies, develop and expand their product and service offerings more rapidly, adapt to new or emerging technologies and changes in customer and distribution partner requirements more quickly, take advantage of acquisitions and other opportunities more readily, achieve greater economies of scale, and devote greater resources to the marketing and sale of their products and services than we can. Our competitors in the e-commerce business include general merchandise retailers and specialty retailers with an online presence, brick-and-mortar stores (both national and local), or both, as well as our own vendors selling direct to consumers or through other retailers. Some of the companies we compete with in online search are currently customers of ours, the loss of any of which could harm our business. If we are unable to match or exceed our competitors’ product offerings, marketing reach, and customer service experience, our business may not be successful. Because of these competitive factors and due to our relatively small size and financial resources, we may be unable to compete successfully in the online search and e-commerce markets and, to the extent that these competitive factors apply to other markets that we pursue, in such other markets.

Additionally, our business and financial results could be adversely affected as well if our search distribution partners create their own services that compete or replace the services we provide or they acquire such services from other sources. We continue to experience increased competition from search customers seeking to enter into agreements directly with our existing or potential distribution partners, making it increasingly difficult for us to renew agreements with existing major distribution partners or to enter into distribution agreements with new partners on favorable terms.

Consolidation in the industries in which we operate could lead to increased competition and loss of customers.

The Internet industry (including online search and retail) has experienced substantial consolidation. This consolidation may continue. These acquisitions could adversely affect our business and results of operations in a number of ways, including the following:

 

   

search customers could acquire or be acquired by one of our other search customers, enter into new business relationships with each other, and stop licensing content to us or gain additional negotiating leverage in their relationships with us;

 

   

our search distribution partners could acquire or be acquired by one of our competitors and terminate their relationship with us;

 

   

our search distribution partners could merge with each other, which could reduce our ability to negotiate favorable terms; and

 

   

competitors in online search or retail (including both brick-and-mortar and Internet retail) could improve their competitive positions through strategic acquisitions or new business relationships with each other.

Consolidation in the Internet industry could have a material adverse effect on our business and results of operations.

Governmental regulation and the application of existing laws may slow business growth, increase our costs of doing business and create potential liability.

The growth and development of the Internet has led to new laws and regulations, as well as the application of existing laws to the Internet, in both the U.S. and foreign jurisdictions. See “Business—Governmental Regulation” in Part I, Item 1 of our Annual Report on Form 10-K for the year ended December 31, 2009 for additional information. Application of these laws can be unclear. For example, it is unclear how many existing laws regulating or requiring licenses for certain businesses (such as gambling, online auctions, distribution of pharmaceuticals, alcohol, tobacco, firearms, insurance, securities brokerage, or legal services) apply to online search services, online advertising, and our business. The costs of complying or failure to comply with these laws and regulations could limit our ability to operate in our markets (including limiting our ability to distribute our products and services, conduct targeted advertising, collect, use or transfer user information, or comply with new data security requirements), expose us to compliance costs and substantial liability and result in costly and time-consuming litigation. It is impossible to predict whether or when any new legislation may be adopted or existing legislation or regulatory requirements will be deemed applicable to us, any of which could materially and adversely affect our business.

 

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Any failure by us to comply with our posted privacy policies, Federal Trade Commission (“FTC”) requirements, or other privacy-related laws and regulations could result in proceedings by the FTC or others, including potential class action litigation, which could potentially have an adverse effect on our business, results of operations, and financial condition. For example, there are a large number of legislative proposals before the U.S. Congress and various state legislative bodies regarding privacy and data protection issues related to our businesses. It is not possible to predict whether or when such legislation may be adopted and certain proposals, if adopted, could materially and adversely affect our business through a decrease in user registrations and revenues. This could be caused by, among other possible provisions, the required use of disclaimers or other requirements before users can utilize our services.

The FTC has recommended that search engine providers delineate paid-ranking search results from non-paid results. To the extent that we are required to modify presentation of search results as a result of specific regulations or requirements that may be issued in the future by the FTC or other state or federal agencies or legislative bodies with respect to the nature of such delineation or other aspects of advertising in connection with online search services, revenue from the affected search engines could be negatively impacted. With respect to our e-commerce business and our Haggle.com business, we must comply with regulations governing online promotions and the taxation of items sold online and the taxation of Internet commerce, and addressing these regulations may require us to develop additional technology or otherwise expend significant time and expense. We understand that some academics and others have suggested that prepaid bidding fee auctions resemble games of chance and/or gambling. We believe that the results of Haggle.com auctions depend on the skill of the participants and that, because the last bidder purchases the item at the final bid price, the items in the auction are not “prizes” won by “wagering.” If lawmakers or regulators were to decide that bidding fee auctions are games of chance or constitute gambling, businesses like Haggle.com could become illegal or subject to regulation as online gambling. In addition, complaints about online auction fraud consistently rank near the top of the list of complaints received by the FTC, and the FTC may use its authority to regulate unfair and deceptive trade practices to implement rules governing bidding fee auctions in particular. We would be unable to conduct our Haggle.com business in any jurisdiction that prohibits prepaid bidding fee auctions, and we may be unable to continue operating Haggle.com in other jurisdictions where regulatory compliance becomes too burdensome or expensive.

Due to the nature of the Internet, it is possible that the governments of states and foreign countries might attempt to regulate Internet transmissions, through data protection laws amongst others, or institute proceedings for violations of their laws. We might unintentionally violate such laws, such laws may be modified and new laws may be enacted in the future. Any such developments (or developments stemming from enactment or modification of other laws) could increase the costs of regulatory compliance for us or force us to change our business practices.

We rely on the infrastructure of the Internet networks, over which we have no control and the failure of which could substantially undermine our operations.

Our success depends, in large part, on other companies maintaining the Internet system infrastructure. In particular, we rely on other companies to maintain a reliable network backbone that provides adequate speed, data capacity, and security and to develop services that enable reliable Internet access and services. As the Internet continues to experience growth in the number of users, frequency of use, and amount of data transmitted, the Internet system infrastructure may be unable to support the demands placed on it, and the Internet’s performance or reliability may suffer as a result of this continued growth. Some of the companies that we rely upon to maintain network infrastructure may lack sufficient capital to take the necessary steps to support such demands or their long-term operations. The failure of the internet infrastructure would substantially undermine our operations and may have a material adverse effect on our business and financial results.

Item 6.—Exhibits

Exhibits

 

Exhibit
Number

  

Exhibit Description

  

Form

  

Date of First Filing

  

Exhibit
Number

  

Filed
Herewith

10.1*    Employment agreement effective as of May 10, 2010 between InfoSpace, Inc. and Nikhil Behl             X
31.1    Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002             X

 

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Exhibit
Number

  

Exhibit Description

  

Form

  

Date of First Filing

  

Exhibit
Number

  

Filed
Herewith

31.2    Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002             X
32.1    Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002             X
32.2    Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002             X

 

* Indicates a management contract or compensatory plan or arrangement.

 

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SIGNATURE

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

 

INFOSPACE, INC.
By  

/S/    DAVID B. BINDER        

  David B. Binder
  Chief Financial Officer
  (Principal Financial Officer)
  Dated: August 4, 2010

 

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INDEX TO EXHIBITS

 

Exhibit
Number

  

Exhibit Description

  

Form

  

Date of First Filing

  

Exhibit
Number

  

Filed
Herewith

10.1*    Employment agreement effective as of May 10, 2010 between InfoSpace, Inc. and Nikhil Behl             X
31.1    Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002             X
31.2    Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002             X
32.1    Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002             X
32.2    Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002             X

 

* Indicates a management contract or compensatory plan or arrangement.
Employment Agreement

Exhibit 10.1

EMPLOYMENT AGREEMENT

This Employment Agreement (the “Agreement”) is made and entered into effective as of May 10, 2010 (the “Effective Date”), by and between Nikhil Behl (“Employee”) and InfoSpace, Inc., its affiliates, successors, and assigns (“InfoSpace, Inc.” or the “Company”).

In consideration of the mutual covenants herein contained, the employment of Employee by the Company, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Certain Definitions.

(a) “Cause”. For purposes of this Agreement, “Cause” means, in the reasoned discretion of the Company (i) any act of criminal or fraudulent misconduct by Employee in connection with Employee’s responsibilities as an employee of the Company that is intended to result in Employee’s personal enrichment, (ii) Employee’s arrest for or conviction of a felony or other crime that may materially reflect negatively on the Company, (iii) breach of a fiduciary duty owed by Employee to the Company or its stockholders, or (iv) continued failure to diligently and reasonably perform Employee’s job duties and Obligations after, in the first instance of such failure only, Employee has been given written notice of such noncompliance and Employee has had a minimum of thirty (30) days to cure such noncompliance, if such failure is reasonably susceptible to cure.

(b) “Change of Control”. For purposes of this Agreement, a “Change of Control” is defined as the occurrence of any of the following:

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then-outstanding voting securities;

(ii) Any merger or consolidation of the Company with any other corporation that has been approved by the stockholders of the Company, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company;

(iii) Any sale or disposition by the Company or Mercantila Acquisition LLC, in one transaction or a series of related transactions, of all or substantially all the Company’s assets; or

(iv) A change in the composition of the Company’s Board of Directors (the “Board”) occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. An “Incumbent Director” is defined as a director who either (A) is a director of the Company as of the Effective Date, or (B) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination. For purposes of the preceding, individuals who are elected pursuant to clause (B) also shall be considered Incumbent Directors.

(c) “Disability”. For purposes of this Agreement, “Disability” is defined as Employee’s inability to perform his employment duties to the Company hereunder, with or without reasonable accommodation, for 180 days (in the aggregate) in any one-year period as determined by an independent physician selected by the Company.


(d) “Good Reason”. For purposes of this Agreement, “Good Reason” is defined as, within twelve (12) months subsequent to a Change in Control, and after thirty (30) days’ written notice and reasonable opportunity to cure, the occurrence of any of the following without Employee’s express prior written consent: (i) a material adverse change of or to Employee’s duties, position, responsibilities or title (other than pursuant to a promotion); (ii) a substantial reduction, unless such reduction is shared by similarly-situated Employees as to Employee, of the facilities and perquisites available to Employee; (iii) a reduction by the Company of Employee’s base salary; (iv) a material reduction by the Company in the kind or level of employee benefits to which Employee is entitled unless similarly-situated Employees also experience a reduction; (v) the requirement that Employee re-locate his home or primary work location more than 50 miles from San Francisco, California or from any work location to which the Company transfers Employee during the course of his employment and to which such transfer Employee has agreed in writing; or (vi) a material breach of this Agreement by the Company. Moreover, in addition to the above, Good Reason shall, at any time, notwithstanding whether a Change in Control has occurred, be deemed to exist if items (iii) or (v) above occur, after thirty (30) days’ written notice and opportunity to cure. Notwithstanding the foregoing, although Employee will initially report to the CEO of InfoSpace, Inc., it is contemplated that the Company will acquire other e commerce assets and Mercantila and/or these other assets may report to someone other than the CEO of InfoSpace, Inc (hereinafter referred to as “E Commerce Lead”). Should this occur, this will not be considered a Good Reason for Employee to terminate employment and receive benefits described in Section 6 of this Agreement.

(e) “Release”. For purposes of this Agreement, “Release” is defined as a full release of claims against the Company in a form acceptable to the Company; provided, however, that notwithstanding the foregoing, such Release is not intended to and will not waive Employee’s rights: (i) to indemnification pursuant to any applicable provision of the Company’s Bylaws or Certificate of Incorporation, as amended, pursuant to any written indemnification agreement between Employee and the Company, or pursuant to applicable law; (ii) to vested benefits or payments specifically to be provided to Employee under this Agreement or any Company employee benefit plans or policies; or (iii) respecting any claims which Employee may have solely by virtue of Employee’s status as a shareholder of the Company. The Release also shall not include claims that an employee cannot lawfully release through execution of a general release of claims.

2. Duties and Scope of Employment. The Company shall employ Employee in the position of Chief Executive Officer, Mercantila. Employee will render such business and professional services in the performance of Employee’s duties, consistent with Employee’s position within the Company, as shall reasonably be assigned to Employee at any time and from time to time by the Company’s Chief Executive Officer, E Commerce Lead, or the Board of Directors.

3. Obligations. While employed hereunder, Employee will perform his/her duties ethically, faithfully and to the best of Employee’s ability and in accordance with law and Company policy. Employee agrees not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the express written prior approval of the Chief Executive Officer; provided, however, that notwithstanding anything to the contrary in the Company’s Supplementary Terms of Employment—[Management/Professional] attached hereto as Exhibit A , Employee may engage in charitable activities so long as such activities do not materially interfere with Employee’s responsibilities to the Company.

4. At-Will Employment. Subject to the terms and conditions hereof including without limitation Sections 6 and 7, the Company and the Employee acknowledge that the Employee’s employment is and shall continue to be terminable at-will, with either party able to terminate the employment relationship with or without Cause or notice.

 

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5. Compensation and Benefits.

(a) Base Compensation. While Employee is an active full-time employee of the Company, the Company shall pay Employee as compensation for Employee’s services hereunder an annual base salary of $210,000. Such salary shall be earned and paid ratably for work performed subject to applicable tax withholding and shall be paid periodically in accordance with normal Company payroll practices. The base salary shall be subject to annual review by the CEO and the Compensation Committee of the Board but in no event shall be less than $210,000.

(b) Incentive Bonus. In addition to the base salary, Employee may receive a performance bonus during each year of employment with the Company under this Agreement equal to an amount, if any, to be determined by the CEO and the Compensation Committee of the Board in their discretion. The target amount of such annual performance bonus shall initially be 50% of Employee’s then current base salary for the applicable fiscal year although actual payment may be more or less than the target amount. Such performance bonus, if any, shall be based upon performance objectives to be determined by the CEO and paid only if Employee is actively employed through the entire performance measurement period. Notwithstanding the foregoing, the Company will pay Employee 50% of his first calendar year target bonus (prorated for calendar days served as an employee). To avoid confusion, if Employee were hired by the Company on May 2, 2010 and continues employment through December 31, 2010, the guaranteed portion of Employee’s bonus will be calculated as follows: $105,000 X (244/365)/2 = $35,095

(c) Benefits. Employee shall be eligible to participate in the employee benefit plans which are available or which become available to other employees of the Company, with the adoption or maintenance of such plans to be in the discretion of the Company, subject in each case to the generally applicable terms and conditions of the plan or program in question and to the determination of any committee administering such plan or program. Such benefits shall include participation in the Company’s group medical, life, disability, and retirement plans, and any supplemental plans available to senior executives of the Company from time to time. The Company reserves the right to change or terminate its employee benefit plans and programs at any time.

(d) Expenses. The Company will reimburse Employee for reasonable business expenses incurred by Employee in the furtherance of or in connection with the performance of Employee’s duties hereunder, in accordance with the Company’s expense reimbursement policy as in effect from time to time.

(e) Retention Bonus. Company will pay Employee a retention bonus of $500,000 to be paid in two (2) installments. Within thirty (30) days of the Effective Date, the Company will pay Employee a lump sum bonus equal to $100,000 subject to applicable tax withholding (“Retention Bonus Part 1”). Further provided that Employee is still a full-time employee of Company on the one-year anniversary date of the Effective Date, Company shall pay Employee a lump sum bonus equal to $400,000 subject to applicable tax withholding (“Retention Bonus Part 2”). Retention Bonus Part 1 and Retention Bonus Part 2 shall be referred to herein as the “Retention Bonus”.

(f) Stock Options; Restricted Stock Units

(i) Employee will be granted a non-qualified stock option (“the Option”) to purchase 180,000 shares of the Company’s common stock at an exercise price equal to the per share equivalent of the fair market value of the Company’s common stock on the date of grant as determined by the closing price of the Company’s common stock on NASDAQ NMS on the date of grant, or, if there is no such reported price on the date of grant, the closing price on the trading day on NASDAQ NMS first preceding the date of grant. The date of grant shall be set by the Compensation Committee of the Board of Directors. Subject to the accelerated vesting provisions set forth herein, the Option shall vest as to one- third of the shares subject thereto on One Year from the Effective Date (Same as Hire Date) and shall vest ratably in six (6) month increments thereafter over the two (2) year period commencing on One Year from the Effective Date (Same as Hire Date), subject to Employee’s continued full-time employment by the Company on the relevant vesting dates. The Option shall be subject to the terms and conditions of the Company’s Restated 1996 Stock Incentive Plan (the “1996 Plan”) and the Stock Option Agreement between Employee and the Company; provided, however, that notwithstanding the foregoing, in the event of a conflict between the terms and conditions of the Effective Date Option and this Agreement, the terms and conditions of this Agreement shall prevail.

 

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(ii) On Effective Date (Same as Hire Date), Employee will be granted 90,000 restricted stock units (the “RSU Grant”). The RSU Grant shall be subject to the terms and conditions of the Notice of Grant of Restricted Stock Units, Restricted Stock Unit Agreement and the 1996 Plan. Subject to the foregoing, the RSU Grant shall vest as to one-third of the shares subject thereto on One Year from Effective Date (Same as Hire Date) and shall vest ratably in six (6) month increments thereafter over the two (2) year period commencing on One Year from Effective Date (Same as Hire Date), subject to Employee’s continued full-time employment by the Company on the relevant vesting dates.

6. Termination of Employment.

(a) Termination by Company for Cause; Voluntary Termination. In the event Employee’s employment with the Company is terminated for Cause by the Company or voluntarily by Employee (other than for Good Reason) (i) the Company shall pay Employee any unpaid base salary due for periods prior to the date of termination of employment (“Termination Date”); (ii) the Company shall pay Employee all of Employee’s accrued and unused “paid time off” (“PTO”), if any, through the Termination Date; and (iii) following submission of proper expense reports by Employee, the Company shall reimburse Employee for all expenses reasonably and necessarily incurred by Employee in connection with the business of the Company through the Termination Date. These payments shall be made promptly upon termination and within the period of time mandated by applicable law. Employee shall retain all stock options that are vested as of the Termination Date and such stock options may be exercised in accordance with the provisions of the applicable stock option plan(s) and the respective stock option agreement(s). Except as expressly stated above or as required by law, Employee shall receive no further compensation in any form other than as set forth in this paragraph.

(b) Termination by Company without Cause or by Employee for Good Reason. The Company may terminate Employee’s employment without Cause at any time, and Employee may likewise terminate his employment at any time. If Employee’s employment with the Company is terminated by the Company without Cause or Employee terminates employment with the Company for Good Reason, and Employee signs within sixty (60) days of termination and does not revoke a Release as may be permitted by law, and continues to abide by any continuing obligations to the Company, then Employee shall receive the following:

(i) a severance payment in an amount equal to one-time’s Employee’s annual base salary (less applicable withholding taxes), as then in effect, payable in one payment that the Company shall deliver to Employee no later than fourteen (14) days from the date on which Employee has returned to the Company an original signed Release.

(ii) severance pay in an amount equal to 50% of Employee’s annual bonus rate (For the purpose of this provision only, Employee’s Annual Bonus Rate shall be the greater of either the most recent Incentive Bonus (as set forth in Paragraph 5(b), above) Employee earned or sixty percent (60%) of Employee’s annual base salary in effect at the time of termination or resignation less applicable withholding taxes), as then in effect. The Company shall deliver this payment to Employee no later than fourteen (14) days from the date on which Employee has returned to the Company an original signed Release.

 

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(iii) one “lump sum” payment of that portion of Retention Bonus Part 1 that has not yet been paid to the Employee as of the date of termination or resignation, if any along with a thirty seven and one half percent (37.5% ) of Retention Bonus Part 2 if Retention Bonus Part 2 has not yet been paid to the Employee as of the date of termination or resignation . For illustrative purposes, if Employee were hired by the Company on May 10, 2010, received Retention Bonus Payment 1 on June 2, 2010, then is terminated without Cause or resigns for Good Reason on December 15, 2010, Employee would be entitled to receive $150,000 (thirty seven and one half percent (37.5% ) of Retention Bonus Payment 2). The Company shall deliver this payment to Employee no later than fourteen (14) days from the date on which Employee has returned to the Company an original signed Release.

(iv) the same level of health (i.e., medical, vision and dental) coverage and benefits as in effect for the Employee on the day immediately preceding the Termination Date; provided, however, that (A) the Employee constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the Internal Revenue Code of 1986, as amended; and (B) Employee elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide Employee with Company-paid health coverage until the earlier of (y) the date Employee is no longer eligible to receive continuation coverage pursuant to COBRA, or (z) twelve (12) months from the Termination Date;

(v) fifty percent (50%) of the Employee’s then-unvested stock options shall immediately vest and become exercisable and Employee shall have twelve (12) months following the Termination Date to exercise such vested shares and fifty percent (50%) of the Employee’s then-unvested restricted stock units (RSUs) shall immediately vest; provided, however, that in the event of a conflict between the terms and conditions of any such stock option agreement or Notice of Grant of Restricted Stock Units and Restricted Stock Unit Agreement, as the case may be, and this Agreement, the terms and conditions of this Agreement shall prevail unless the conflicting provision(s) in any such stock option agreement or Notice of Grant of Restricted Stock Units and Restricted Stock Unit Agreement, as the case may be, shall be more favorable to Employee in which case the provision(s) more favorable to Employee shall govern; provided further, however, that notwithstanding the foregoing in no event shall the extended twelve (12) month exercise period specified in this Section 6(b)(iv) modify or extend the Expiration Date of any stock option as set forth in such stock option agreement.

(c) Death. In the event of Employee’s death while employed hereunder, and provided Employee’s representative executes a Release that also releases any claims by Employee’s estate or survivors, Employee’s beneficiary (or such other person(s) specified by will or the laws of descent and distribution) will receive (i) continuing payments of severance pay (less applicable withholding taxes) at a rate equal to Employee’s base salary for a period of ninety (90) days from Employee’s death, to be paid periodically in accordance with the Company’s normal payroll policies, (ii) Company-paid COBRA benefits as specified in Section 6(b)(iii) above for ninety (90) days from Employee’s death, and (iii) have the right to exercise Employee’s stock options which are vested as of the date of Employee’s death for one (1) year following Employee’s death.

(d) Disability. In the event of Employee’s termination of employment with the Company due to Disability, and provided Employee signs and does not revoke a Release, Employee shall be entitled to continuing payments of base salary (less applicable withholding taxes) until, if applicable and subject to plan documents, Employee is eligible for long-term disability payments under the Company’s group disability policy; provided, however, that in no event shall such period of continued base salary exceed 180 days following termination.

 

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7. Change of Control Benefits. Notwithstanding the foregoing, in the event that the benefits provided for in this Agreement (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits otherwise payable shall be reduced by the minimum extent necessary such that no portion of such benefits would be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 7 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 7. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 7.

8. No Impediment to Agreement. Employee hereby represents to the Company that Employee is not, as of the date hereof, and will not be during Employee’s employment with the Company, employed under contract, oral or written, by any other person, firm or entity, and is not and will not be bound by the provisions of any restrictive covenant or confidentiality agreement which would constitute an impediment to, or restriction upon, Employee’s ability to enter this Agreement and to perform the duties of Employee’s employment.

9. Confidentiality. Employee also agrees to the terms of the attached “Supplementary Terms of Employment—Managerial/Professional” that are attached as Exhibit A and incorporated herein by reference.

10. Arbitration. Employee agrees, as a condition to Employee’s employment that any employment related disputes between Employee and the Company are subject to binding arbitration in accordance with the terms of Exhibit A.

11. Successors; Personal Services. The services and duties to be performed by the Employee hereunder are personal and may not be assigned or delegated. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and the Employee and Employee’s heirs and representatives.

12. Notices. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of the Employee, mailed notices shall be addressed to Employee at the home address, which Employee most recently communicated to the Company in writing, with a copy to Employee’s counsel as designated by Employee whose address is provided below. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its General Counsel.

13. Code Section 409A

(a) Notwithstanding anything to the contrary in this Agreement, if the Employee is a “specified employee” within the meaning of Section 409A of the Code, and the final regulations and any guidance promulgated thereunder (“Section 409A”) at the time of the Employee termination of employment (other than due to death), then the severance benefits payable to the Employee under this Agreement, if any, and any other severance payments or separation benefits that may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”) otherwise due to the Employee on or within the six (6) month period following the Termination Date will accrue during such six (6) month period and will become payable in a lump sum payment (less applicable withholding taxes) on the date six (6) months and one (1) day following the Termination Date. All subsequent payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Employee dies following his or her termination of employment but prior to the six (6) month anniversary of the Termination Date, then any payments delayed in accordance with this paragraph will be payable in a lump sum (less applicable withholding taxes) to the Employee’s estate as soon as administratively practicable after the date of the Employee’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.

 

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(b) This provision is intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Company and the Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Employee under Section 409A.

14. Miscellaneous Provisions.

(a) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Employee and by an authorized officer of the Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.

(b) Entire Agreement. This Agreement (including exhibits) shall supersede and replace all prior agreements or understandings relating to the subject matter hereof, and no agreements, representations or understandings (whether oral or written or whether express or implied) which are not expressly set forth in this Agreement have been made or entered into by either party with respect to the relevant matter hereof. This Agreement may not be modified except expressly in a writing signed by both parties.

(c) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the internal substantive laws of the State of Washington without reference to any choice of law rules.

(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.

(e) No Assignment of Benefits. The rights of any person to payments or benefits under this Agreement shall not be made subject to option or assignment, either by voluntary or involuntary assignment or by operation of law, in respect of bankruptcy, garnishment, attachment or other creditor’s process, and any action in violation of this subsection shall be void.

(f) No Duty to Mitigate. Employee shall not be required to mitigate the amount of any payment contemplated by this Agreement, nor shall any such payment be reduced by any earnings that Employee may receive from any other source.

(g) Employment Taxes. All payments made pursuant to this Agreement will be subject to withholding of all applicable income, health insurance and employment taxes.

 

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(h) Assignment by Company. The Company may assign its rights under this Agreement to an affiliate (as defined under the Securities Exchange Act of 1934), and an affiliate may assign its rights under this Agreement to another affiliate of the Company or to the Company. In the case of any such assignment, the term “Company” when used in a section of this Agreement shall mean the corporation that actually employs the Employee.

(i) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.

 

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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first above written.

 

COMPANY:     INFOSPACE, INC.
    By:   

/s/    David Binder

      Chief Financial Officer
EMPLOYEE:      

/s/    Nikhil Behl

      Nikhil Behl
      Chief Executive Officer, Mercantila

 

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Section 302 Certification

Exhibit 31.1

CERTIFICATION PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

Principal Executive Officer

I, William J. Lansing, certify that:

 

1. I have reviewed this quarterly report on Form 10-Q of InfoSpace, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, 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;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: August 4, 2010

 

/s/    William J. Lansing

William J. Lansing
Chief Executive Officer and President
(Principal Executive Officer)
Section 302 Certification

Exhibit 31.2

CERTIFICATION PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

Principal Financial Officer

I, David B. Binder, certify that:

 

1. I have reviewed this quarterly report on Form 10-Q of InfoSpace, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, 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;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: August 4, 2010

 

/s/    David B. Binder

David B. Binder
Chief Financial Officer
(Principal Financial Officer)
Section 906 Certification

Exhibit 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, William J. Lansing, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report on Form 10-Q of InfoSpace, Inc. for the three months ended June 30, 2010 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of InfoSpace, Inc.

 

Dated: August 4, 2010     By:  

/s/    William J. Lansing

    Name:   William J. Lansing
    Title:   Chief Executive Officer and President
      (Principal Executive Officer)
Section 906 Certification

Exhibit 32.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, David B. Binder, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report on Form 10-Q of InfoSpace, Inc. for the three months ended June 30, 2010 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of InfoSpace, Inc.

 

Dated August 4, 2010     By:  

/s/    David B. Binder

    Name:   David B. Binder
    Title:   Chief Financial Officer
      (Principal Financial Officer)