10-Q/A 1 d10qa.txt AMENDMENT #1 TO FORM 10-Q ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q/A _________ (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2000 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: 000-28893 L90, Inc. (Exact name of registrant as specified in its charter) _________ Delaware 95-4761069 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 4499 Glencoe Ave Suite 400 Marina Del Rey, California 90292 (Address of principal executive offices) (Zip Code) (310) 751-0200 (Registrant's telephone number, including area code) 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 As of November 1, 2000, L90, Inc. had 23,710,986 shares of its common stock, $.001 par value per share, outstanding. ================================================================================ L90, INC. TABLE OF CONTENTS This Form 10-Q/A for the three and nine months ended September 30, 2000 is being filed for the purpose of amending and restating Items 1 and 2 of Part 1 of Form 10-Q. These items are being amended and restated for the purpose of recording transactions identified by the Audit Committee of our Board of Directors, which commenced an independent internal investigation into the matter that was prompted by an SEC investigation of the Company. To assist in this inquiry, the Audit Committee and the Company each engaged special counsel and a forensic accounting firm. As a result, certain of the Company's financial results for the year ended December 31, 2000 and for the three quarters ended September 30, 2001 are being restated. Note 8 - "Restatement of Financials" to the notes of the financial statements provides a reconciliation of the Company's previously reported balance sheet, statements of operations and cash flows as of and for the three and nine months ended September 30, 2000 with the restated financial statements. The adjustments relate to groups of transactions that were identified involving multiple vendors and service providers. These cash transactions substantially offset another when aggregated and appear to represent barter arrangements that do not meet the criteria for revenue recognition under accounting principles generally accepted in the United States. Additional revenue transactions have been reversed that involved these and other vendors and were subsequently written off as bad debts or generated concerns about the substance of the services provided. For the three and nine months ended September 30, 2000 these adjustments reflect a decrease in revenue of approximately $1.3 million and a decrease in sales and marketing of $100,000. In addition, for the three and nine months ended September 30, 2000, other income increased by approximately $815,000.

PART I ITEM 1. FINANCIAL STATEMENTS L90, INC. BALANCE SHEETS (unaudited)

The accompanying notes are an integral part of these condensed financial statements. 3 L90, INC. STATEMENTS OF OPERATIONS (Unaudited)

The accompanying notes are an integral part of these condensed financial statements. 4 L90, INC. STATEMENTS OF STOCKHOLDERS' EQUITY (Unaudited)

The accompanying notes are an integral part of these condensed financial statements. 5 L90, INC. STATEMENTS OF CASH FLOWS (Unaudited)

The accompanying notes are an integral part of these condensed financial statements. 6 L90, INC. NOTES TO FINANCIAL STATEMENTS (Unaudited) 1. Description of the Business L90, Inc. (the "Company") is an Internet-based provider of online advertising and direct marketing solutions for advertisers and Web publishers. The Company provides fully-outsourced ad sales, as well as ad serving, tracking technology and direct marketing promotions. The Company develops targeted advertising campaigns that leverage the capabilities of the Internet. The Company's adMonitor technology platform provides Web publishers, advertisers and ad agencies with the ability to target, deliver, measure and analyze their marketing campaigns. The Company commenced operations in January 1997 as a sole proprietorship. In May 1997, the Company became a California limited liability company and changed its name to John Bohan and Associates, LLC. At that time, the Company did business as AdNet Strategies. In January 1998, the Company incorporated in California, elected S-corporation status and changed its name to AdNet Strategies, Inc. In December 1998, the Company became a California C-corporation under the name Latitude 90, Inc. In September 1999, the Company reincorporated in Delaware as L90, Inc. 2. Summary of Significant Accounting Policies a. Interim Results The unaudited condensed consolidated financial statements for the three and nine month periods ended September 30, 2000 and 1999 have been prepared by the Company and are unaudited. In the Company's opinion, the unaudited condensed consolidated financial statements have been prepared on the same basis as the annual financial statements and reflect all adjustments, which include only normal recurring adjustments, necessary to present fairly the financial position as of September 30, 2000 and the results of the Company's operations and cash flows for the three and nine month periods ended September 30, 2000 and 1999. The financial data and other information disclosed in these notes to the condensed consolidated financial statements related to these periods are unaudited. The results for the three and nine month periods ended September 30, 2000 are not necessarily indicative of the results to be expected for any subsequent quarter or the entire fiscal year ending December 31, 2000. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States ("GAAP") have been condensed or omitted pursuant to the Securities and Exchange Commission's rules and regulations. It is suggested that these unaudited financial statements be read in conjunction with the Company's audited financial statements and notes thereto for the year ended December 31, 1999 as included in the Company's annual report on Form 10-K. b. Revenue Recognition Revenue from ad sales is earned under commission-based and service fee-based contracts. For commission-based contracts, the Company generally invoices the full amount of revenue due to Web publishers for the sale of their ad inventory and is entitled to receive a commission. Revenue earned from commission-based contracts reflects only the amount of the commission earned without any associated cost of revenue. The Company recognizes commissions ratably over the term of the advertising campaigns, which usually range from one to twelve months. For service fee-based contracts, the Company is obligated to pay a service fee to the Web publishers for ads placed on their Web sites that is included in cost of revenue. Additionally, under service fee-based contracts, the Company must collect and bear the risk of loss from the advertiser for ads sold. Consequently, revenue earned from service fee-based contracts reflects the full value of the ads sold, or the Company's credit risk exposure on service fee-based sales. 7 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) c. Current Vulnerability Due to Certain Concentrations The Company sells advertising space to its customers. For the quarter ended September 30, 1999, there were no advertising customers that comprised greater than 10 percent of revenue. For the quarter ended September 30, 2000, the largest advertising customer accounted for approximately 11 percent of revenue. No other advertiser accounted for 10 percent or more of the advertising space sold to generate revenue. The loss of the largest advertiser could have an adverse effect on the Company's operations. The Company purchases advertising space from its Web site partners. For the quarter ended September 30, 1999, no Web site partner comprised greater than 10 percent of revenue. For the quarter ended September 30, 2000, the largest Web site partner accounted for approximately 16 percent of revenue. No other Web site partner accounted for 10 percent or more of the advertising space sold to generate revenue. The loss of the largest Web site partner could have an adverse effect on the Company's operations. d. Cash and Cash Equivalents For purposes of the balance sheets and statements of cash flows, cash and cash equivalents includes all cash instruments due on demand or with an original maturity of 90 days or less. The Company maintained its cash balances in three financial institutions during 1999 and 2000. The cash balances in each financial institution is insured by the Federal Deposit Insurance Corporation up to $100,000. At December 31, 1999 and September 30, 2000, the Company's uninsured cash balances, including both restricted and unrestricted cash, totaled $8,064,570 and $91,259,474, respectively. e. Restricted Cash Restricted cash consists of cash pledged under outstanding letters of credit. f. Accounts Receivable The Company has receivables due from advertisers and from Web publishers resulting from the sales of ads. These receivables relate to both commission-based and service fee-based contracts. The Company's credit exposure on commission-based contracts is limited to the net amount of cash to be received by the Company from ad sales. The Company's credit exposure on service fee-based contracts is the full amount of the ad sales as the Company is obligated to pay the Web publishers for ads sold on their Web sites irrespective of receiving payment from advertisers. The Company extends credit to its customers, who are primarily located in the United States. The ability of these customers to meet their obligations to the Company is dependent on their economic health, as well as their industry and other factors. The Company maintains an allowance for doubtful accounts which represents management's estimate of expected losses on specific accounts and inherent losses on other as yet unidentified accounts included in accounts receivable. In estimating the potential losses on specific accounts, management performs ongoing credit evaluations of its customers based on management analysis and reviews of available public documents. The amounts the Company will ultimately realize could differ materially in the near term from the amounts assumed in arriving at the allowance for doubtful accounts reported in the financial statement. 8 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) g. Property and Equipment Property and equipment are recorded at cost and depreciated over the estimated useful life of the asset, using the straight-line method of depreciation. Leasehold improvements are amortized over the shorter of the estimated useful life of the asset or the term of the lease. Property, equipment and leasehold improvements have estimated useful lives ranging from three to five years. h. Equipment Under Capital Leases Equipment under capital leases is recorded at the lower of the present value of the minimum lease payments or the fair value of the leased property at the inception of the lease. Amortization of leased property is computed using the straight-line method over the term of the lease. i. Deferred Revenue Deferred revenue primarily represents advertising campaign revenue to be recognized over the period of the campaign subsequent to the respective year-end and quarter-end. This revenue will be recognized ratably over the term of the advertising campaign, which usually ranges from one to twelve months. j. Income Taxes The Company provides for income taxes in accordance with the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using the enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. k. Net Loss Per Share Basic earnings per share ("EPS") is computed by dividing income or loss available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted EPS reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or result in the issuance of common stock that would then share in the earnings of the Company. Potentially dilutive securities are excluded from the Company's calculation of diluted EPS when their inclusion would be antidilutive. l. Stock-Based Compensation GAAP permits companies to use either of two alternative accounting methods to recognize employee stock-based compensation. Under the first accounting method, if options are granted at an exercise price equal to the market value of the stock at the time of the grant, no compensation expense is recognized. The Company follows this accounting method, which it believes better reflects the motivation for its issuance of stock options, namely, that they are incentives for future performance rather than compensation for past performance. Under the second accounting method, issuers record compensation expense over the period they are expected to be outstanding prior to exercise, expiration, or cancellation. The amount of compensation expense recognized over this term is the "fair value" of the options at the time of the grant as determined by an option pricing model. The option pricing model attributes fair value to the options based upon the length of their term, the volatility of the stock price in past periods, and other factors. Under this method, the issuer recognizes compensation expense regardless of whether the officer or director exercised the options. 9 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) m. Use of Estimates 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 at date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. n. New Accounting Pronouncements In March 1998, the Accounting Standards Executive Committee issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer Software Developed or Obtained for Internal Use." SOP 98-1 requires all costs related to the development of internal use software other than those incurred during the application development stage to be expensed as incurred. Costs incurred during the application development stage are required to be capitalized and amortized over the estimated useful life of the software. SOP 98-1 was adopted by the Company on January 1, 1999 and did not have a material effect on the Company's financial position or results of operations. o. Principles of Consolidation The Company's consolidated financials as of September 30, 2000 and December 31, 1999 and for the three and nine month periods ended September 30, 2000 and 1999 include the accounts of the Company and its subsidiary from its respective date of acquisition (see note 3). All significant intercompany transactions and balances have been eliminated in consolidation. p. Certain Reclassifications Certain reclassifications were made to previously reported amounts in the accompanying condensed consolidated financial statements and the related notes to make them consistent with the current presentation format of the Company. 3. Acquisitions On July 24, 2000, the Company acquired webMillion.com, Inc., a leading direct marketing promotions company. Pursuant to the Merger Agreement, the Company issued 1,901,381 shares of its Common Stock, $0.001 par value, to all the shareholders of webMillion. Holders of warrants of webMillion received, in the aggregate, the right to purchase from the Company 98,619 shares of Common Stock at a price per share of $1.9792. A total of 361,063 of the Merger Shares are being held in a three year escrow as security for the indemnification obligations of webMillion's former shareholders pursuant to the Merger Agreement. The fair value purchase price in excess of the value of identified assets and liabilities assumed has been allocated to goodwill in the amount of $19.8 million. Goodwill is being amortized over its expected benefit, which is 20 years. The transaction was structured as a reverse triangular merger and has been accounted for through the purchase method of accounting. As a result of the tax-free purchase, webMillion now is a wholly-owned subsidiary of the Company. The following unaudited pro forma consolidated amounts give effect to the above acquisition accounted for by the purchase method of accounting as if they had occurred at the beginning of the respective period by consolidating the results of operations of the acquired entity for the three and nine month periods ended September 30, 2000 and 1999. 10 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) The unaudited pro forma consolidated condensed financial information is presented for illustrative purposes only and is not necessarily indicative of the financial position or results of operations that would have actually been reported had the merger occurred at the beginning of the periods presented, nor is it necessarily indicative of future financial position or results of operations. These unaudited pro forma consolidated condensed financial statements are based upon the respective historical financial statements of L90 and webMillion.com and notes thereto. These unaudited pro forma consolidated condensed financial statements do not incorporate, nor do they assume, any benefits from cost savings or synergies of operations of the consolidated company.

4. Equity a. Initial Public Offering In February 2000, the Company completed an initial public offering (the "IPO") of 7,475,000 shares of common stock, including 975,000 shares subject to the underwriter's over-allotment option, at $15.00 per share of common stock. The IPO resulted in aggregate net proceeds to the Company of approximately $102,600,000, net of underwriting discounts and expenses of the offering. b. Conversion of Preferred Stock and Warrants Upon the IPO of the Company's common stock, the Company converted all outstanding shares of Series A, B and C preferred stock into 5,276,156 shares of common stock. Additionally, the Series A, B and C preferred stockholders exercised their warrants to purchase shares of the Company's common stock. 5. Debt On November 29, 1999, the Company acquired a software license in exchange for a promissory note for $1,453,715. The note bears interest at 7.86% per annum. This note is collateralized by a standby letter of credit for a total of $1,208,632. At December 31, 1999, the Company had pledged $1,208,632 of cash as collateral for this outstanding letter of credit. Remaining principal payments due under the note are $442,032, $486,708 and $524,976 for the years ending December 31, 2000, 2001 and 2002, respectively. 11 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) On November 29, 1999, the Company obtained a standby letter of credit for a total of $60,000. At December 31, 1999, the Company had pledged $60,000 of cash as collateral for this outstanding letter of credit. On March 28, 2000, the Company obtained a standby letter of credit for a total of $600,000. At March 31, 1999, the Company had pledged $600,000 of cash as collateral for this outstanding letter of credit. 6. Stock Options and Warrants a. Stock Options Employee transactions during the quarter ended September 30, 2000 are summarized as follows:

The following table summarizes information about employee stock options outstanding at September 30, 2000: Weighted average Number remaining Range of Exercise Prices Outstanding contractual life ------------------------ ----------- ---------------- $1.20-$1.50......... 184,608 7.90 years $3.53-$4.59......... 1,422,889 8.90 years $6.00-$8.75......... 200,880 9.70 years $9.13-$13.06........ 685,981 9.70 years $14.44-$21.06....... 461,561 9.30 years $22.38-$27.88....... 83,882 9.50 years --------- ---------- 3,039,801 9.10 years ========= ========== b. Common Stock Warrants In connection with an advertising agreement, the Company issued a warrant to purchase 50,000 shares of common stock at an exercise price of $15.00 per share. This warrant is only exercisable from January 30, 2001 through February 5, 2001. The warrant expires on February 5, 2001. The fair value of the warrant was estimated at $209,000 on the date of issuance using the Black-Scholes option pricing model with the following assumptions: dividend yield of 0 percent; expected volatility of 65 percent; risk-free interest rate of 6.12 percent; and an expected life of one year. 12 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) 7. Commitments and Contingencies a. Litigation The Company may become subject to legal proceeding from time to time in the normal course of business. The Company is not currently involved in any litigation that management believes will have a material adverse effect on the Company's financial position or results of operations. The Company faces the risk that other parties' intellectual property positions will impair its ability to deliver advertisements over the Internet. On November 12, 1999, DoubleClick filed a patent infringement lawsuit against the Company in the United States District Court for the Eastern District of Virginia. The lawsuit was moved to the United States District Court for the Southern District of New York in March 2000. The suit alleges that the Company is infringing, and inducing and contributing to the infringement by third parties of, a patent held by DoubleClick related to methods and networks for delivering, targeting and measuring advertising over the Internet. DoubleClick had sought treble damages in an unspecified amount, a preliminary and permanent injunction from further alleged infringement and attorneys' fees and costs. On November 3, 2000, L90 and DoubleClick entered into an agreement pursuant to which the parties would enter into definitive documents to settle the patent litigation, including L90's related counterclaims. Under the definitive documents, the parties would dismiss the lawsuit with prejudice and grant each other certain rights in certain of their respective patents. No other terms of the proposed settlement were disclosed. The Company believes that the settlement will not have a material adverse effect on its business or operations. On September 7, 2000, JobsOnline filed a breach of contract lawsuit against the Company in the Circuit Court of Cook County, Illinois. The suit alleges breach of contract by the Company with respect to an Internet Advertising Agreement between the two parties. JobsOnline is seeking declaratory and injunctive relief and damages in an amount to be proven at trial. The Company believes this lawsuit is without merit and intends to vigorously defend itself against these claims. 13 L90, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) b. Office Lease The Company currently leases office space in the following locations: Santa Monica, CA, New York, NY and Detroit, MI. In addition, the Company has entered into the following lease agreements during the nine months ended September 30, 2000: On January 17, 2000, the Company entered into an agreement to lease additional office space in Chicago, IL through January 16, 2005. On February 28, 2000, the Company entered into an agreement to lease additional office space in New York, NY through July 30, 2003. In connection with this agreement, the Company was required to obtain a standby letter of credit in the amount of $600,000. This letter of credit expires on July 31, 2001 and is automatically extended for an additional period of one year through July 31, 2002. The Company has pledged $600,000 under this letter of credit. On May 1, 2000, the Company entered into an agreement to lease additional office space in San Francisco, CA through July 31, 2003. On June 26, 2000, the Company entered into an agreement to lease additional office space in Greenwich, CT through July 31, 2005. On July 24, 2000, in conjunction with its acquisition of webMillion.com, Inc., the Company assumed the lease liability for office space in Boise, ID through March 31, 2001. On September 26, 2000, the Company entered into an agreement to lease additional office space in Seattle, WA through September 30, 2003. On October 27, 2000, the Company entered into an agreement to lease additional office space for its corporate headquarters in Marina Del Rey, CA through December 31, 2005. In connection with this agreement, the Company was required to obtain a standby letter of credit in the amount of $750,000. This letter of credit expires on January 31, 2002 and is automatically extended for an additional period of one year through January 31, 2006. The Company has pledged $750,000 under this letter of credit. The minimum rental commitments required under these operating leases are as follows: Year Office Lease ---- ------------ 2000............................. $ 211,000 2001............................. 1,757,000 2002............................. 1,775,000 2003............................. 1,643,000 2004............................. 1,258,000 Thereafter....................... 421,000 ----------- $ 7,065,000 =========== 8. Restatement of Financials. On February 1, 2002, the Company's Board of Directors authorized the Audit Committee of the Board of Directors to commence an independent internal investigation into the matter that was prompted by an SEC investigation of the Company. To assist in this inquiry, the Audit Committee and the Company each engaged special counsel and a forensic accounting firm. As a result, certain of the Company's financial results for the year ended December 31, 2000 and for the three quarters ended September 30, 2001 are being restated. The following statements provide a reconciliation of the Company's previously reported unaudited balance sheet, statements of operations and cash flows as of and for the three and nine months ended September 30, 2000 with the restated financial statements. The adjustments relate to groups of transactions that were identified involving multiple vendors and service providers. These cash transactions substantially offset another when aggregated and appear to 14 represent barter arrangements that do not meet the criteria for revenue recognition under accounting principles generally accepted in the United States. Additional revenue transactions have been reversed that involved these and other vendors and were subsequently written off as bad debts or generated concerns about the substance of the services provided. For the three and nine months ended September 30, 2000, these adjustments reflect a decrease in revenue of approximately $1.3 million, a $100,000 reduction of sales and marketing expense and an increase to other income of approximately $815,000. Consolidated Balance Sheet

15 Statement of Operations

16 Statement of Cash Flows

17 9. Subsequent Events SEC Investigation On January 25, 2002, the Securities and Exchange Commission issued a formal order of investigation in connection with non-specified accounting matters, financial reports, public disclosures and trading activity in the Company's securities. In connection with this investigation, the SEC has requested that the Company provide it with certain documents and other information. The Company is continuing to fully cooperate with the SEC in its investigation and is hopeful that it can resolve this investigation in an expeditious manner. In addition, in January 2002, the Company was notified that the Nasdaq National Stock Market Listing Investigations requested certain documents and other information relating to certain transactions pursuant to Marketplace Rule 4330(c). The Company is cooperating fully with Nasdaq in its investigation. While the Company does not know the current status of either investigation or any possible actions that may be taken against it as a result, any regulatory action against it could harm the Company's business. On February 1, 2002, the Company's Board of Directors authorized the Audit Committee of the Board of Directors to commence an independent internal investigation into the matters that prompted the SEC investigation. The Audit Committee engaged special counsel and a forensic accounting firm to conduct a comprehensive examination of the Company's financial records. On May 6, 2002, the Company announced that the Audit Committee had concluded its internal investigation and determined that certain of the Company's financial results for the year ended December 31, 2000 and the three quarters ended September 30, 2001 would be restated. Securities Class Actions Beginning on March 21, 2002, following the announcement of the SEC investigation and the internal investigation of the Audit Committee of the Board of Directors, a number of securities class action complaints were filed against the Company and certain of its former officers and directors in the United States District Court for the Central District of California. The complaints have been filed as purported class actions by individuals who allege that they purchased the Company's common stock during the purported class period. The complaints generally allege that during 2000 and 2001 the Company, and the other named defendants, made false or misleading statements of material fact about the Company's financial statements, including its revenues, revenue recognition policies, business operations and prospects for the years 2000, 2001 and beyond. The complaints seek an unspecified amount of damages on behalf of persons who purchased the Company's common stock during the purported class period. The actions are still in the preliminary stages and the Company is unable to assess at this time the merits of the actions, therefore, it is not possible for the Company to quantify the extent of its potential liability, if any. Any unfavorable outcome in these actions could have a material adverse effect on the Company's business, financial condition and results of operations. Derivative Actions Beginning on March 22, 2002, the Company has been named as a nominal defendant in two derivative actions, purportedly brought on behalf of the Company, filed in the Superior Court of the State of California for the County of Los Angeles. The derivative complaints allege that certain of the Company's current and former officers and directors breached their fiduciary duties to the Company, engaged in abuses of their control of the Company, wasted corporate assets, and grossly mismanaged the Company. The plaintiffs seek unspecified damages on the Company's behalf from each of the defendants. Because of the nature of derivative litigation, any recovery in the action would inure to the Company's benefit. The actions are still in the preliminary stages and the Company is unable to assess at this time the merits of the actions. Nasdaq Delisting On April 16, 2002, the Company was notified that Nasdaq intended to initiate proceedings to delist the Company's common stock from the Nasdaq National Stock Market because of its failure to timely file with the SEC it annual report on Form 10-K for the year ended December 31, 2001. The Company has requested a hearing on the matter and has updated its financial statements, as of the date of this filing, prior to the hearing that is scheduled for May 17, 2002. However, the Company cannot assure you that its common stock will continue to be traded on the Nasdaq National Stock Market. 18 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS THE FOLLOWING DISCUSSION OF THE FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF L90 CONTAINS FORWARD-LOOKING STATEMENTS RELATING TO FUTURE EVENTS AND THE FUTURE PERFORMANCE OF L90 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. STOCKHOLDERS ARE CAUTIONED THAT SUCH STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. L90'S ACTUAL RESULTS AND TIMING OF CERTAIN EVENTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, INCLUDING, BUT NOT LIMITED TO, THOSE SET FORTH UNDER "RISK FACTORS RELATING TO OUR BUSINESS AND OPERATIONS" AND ELSEWHERE IN THIS REPORT AND IN L90'S OTHER PUBLIC FILINGS MADE FROM TIME TO TIME WITH THE SECURITIES AND EXCHANGE COMMISSION. RECENT FINANCIAL ACCOUNTING DEVELOPMENTS On February 1, 2002, the Company's Board of Directors authorized the Audit Committee of the Board of Directors to commence an independent internal investigation into the matter that was prompted by an SEC investigation of the Company. To assist in this inquiry, the Audit Committee and the Company each engaged special counsel and a forensic accounting firm. As a result, certain of the Company's financial results for the year ended December 31, 2000 and for the three quarters ended September 30, 2001 are being restated. Note 8 "Restatement of Financials" provides a reconciliation of the Company's previously reported unaudited balance sheet, statements of operations and cash flows as of and for the three and nine months ended September 30, 2000 with the restated financial statements. The adjustments relate to groups of transactions that were identified involving multiple vendors and service providers. These cash transactions substantially offset another when aggregated and appear to represent barter arrangements that do not meet the criteria for revenue recognition under accounting principles generally accepted in the United States. Additional revenue transactions have been reversed that involved these and other vendors and were subsequently written off as bad debts or generated concerns about the substance of the services provided. For the three and nine months ended September 30, 2000 these adjustments reflect a decrease in revenue of approximately $1.3 million, a $100,000 reduction of sales and marketing expense and an increase to other income of approximately $815,000. Overview References in this Report to "L90," "we," "our" and "us" refer to L90, Inc. We are a leading provider of Internet-based advertising and direct marketing solutions for advertisers and Web publishers. We design and implement advertising campaigns for our advertising clients and strategically place their ads on our network of Web sites. We provide our Web publishing clients with a fully-outsourced solution which includes the sale of advertising space on their Web sites as well as the technology required to deliver advertisements. We have developed adMonitor, our ad serving and tracking technology that is used to deliver advertisements to our network of Web site publishers. adMonitor enables our advertising and Web publishing clients to implement sophisticated advertising campaigns quickly and to selectively target ads to Web users based on specific interests or characteristics. adMonitor also enables our clients to measure and manage the effectiveness of their ad campaigns. Since inception, substantially all of our revenue has been derived from online advertising sales. We offer advertisements primarily priced on a cost per every thousand ads viewed, or CPM, basis. We also offer direct marketing programs, which may be priced on a cost per action basis, such as cost for each new user registration. In January 1999, we began to charge our customers for the use of our adMonitor technology. For the nine months ended September 30, 2000, online advertising sales accounted for 93.1% of our revenue, and fees generated by our adMonitor technology accounted for 6.9% of our revenue. Revenue from ad sales is earned under commission-based and service fee-based contracts. For commission-based contracts, we receive commissions from Web publishers for the sale of their ad inventory. Revenue earned from commission-based contracts reflects only the amount of the commission earned without any associated cost of revenue. We recognize commissions ratably over the term of an advertising campaign, which typically ranges from one to twelve months. For service fee-based contracts, we purchase advertising space, or ad inventory, from Web publishers and are obligated to pay a service fee to Web publishers for ads placed on their Web sites. Additionally, under service fee-based contracts, we bear the risk of loss from the non-collection of fees payable by advertisers for ads sold. Consequently, revenue earned from service fee-based contracts reflects the full value of the ads sold. System revenue represents the full value of gross billings for ads sold under either commission-based contracts or service fee-based contracts. In the second quarter of 1999, we began the process of amending many of our commission-based contracts with Web publishers to provide that we will sell their ad inventory on a best efforts basis to our advertising clients and remit to Web publishers, as a service fee, a percentage of the resulting advertising revenue. We are attempting to amend almost all of our existing commission-based contracts with Web publishers to convert these contracts into service fee-based contracts. So long as we have both commission-based and service fee-based contracts, revenue will include a mix of commissions received under our commission-based contracts and total billings to our advertising clients under our service fee-based contracts. For the foreseeable future, we do not expect to 19 completely convert all of our contracts into service fee-based contracts. As our amended contracts are phased in, we expect that revenue will increase disproportionately from prior periods as a result of the recognition of total billings to our advertising clients as revenue. We believe that period to period comparisons of operating results are not always meaningful and that the results for any period should not be relied upon as an indication of future performance. For the nine months ended September 30, 2000, service fee-based contracts accounted for 97.9% of our revenue, and commission based contracts accounted for 2.1% of our revenue. For the nine months ended September 30, 1999, service fee-based contracts accounted for 62.3% of our revenue, and commission-based contracts accounted for 37.7% of our revenue. Cost of revenue includes service fees paid to our Web publishers under our service fee-based contracts and Internet connectivity and bandwidth costs associated with ad serving. We expect cost of revenue to increase on an absolute dollar basis in future periods as our revenue increases and as more of the contracts with Web publishers are structured as service fee-based contracts. Results of Operations Revenue. Revenue increased 554.1% to $13.4 million for the three months ended September 30, 2000, from $2.0 million for the three months ended September 30, 1999. This increase was due to increases in the number of advertising customers that we serviced, the number of Web publishers on our network and the number of ads delivered. In addition, this increase was partly attributable to our adoption of service fee-based contracts and the initiation of our charging service fees to customers for the use of our adMonitor technology. On a year to date basis, revenue for the nine months ended September 30, 2000, totaled $34.2 million, an increase of $30.2 million or 761.50% over the nine months ended September 30, 1999. Cost of Revenue. Cost of revenue was $9.0 million for the three months ended September 30, 2000 and $1.0 million for the three months ended September 30, 1999. On a year to date basis, cost of revenue was $22.5 million for the nine months ended September 30, 2000 and $1.3 million for the nine months ended September 30, 1999. Sales and Marketing. Sales and marketing expenses include salaries, commissions, travel, advertising, trade show costs and marketing materials expense. Sales and marketing expenses increased to $4.5 million, or 33.5% of revenue, for the three months ended September 30, 2000, compared to $1.2 million or 57.6% of revenue, for the three months ended September 30, 1999. Sales and marketing expenses increased to $10.9 million, or 31.8% of revenue, for the nine months ended September 30, 2000, compared to $3.0 million or 75.2% of revenue, for the nine months ended September 30, 1999. This increase was primarily due to an increase in the number of sales and marketing personnel. Our sales and marketing organization has grown to 115 employees as of September 30, 2000 from 65 employees as of September 30, 1999. We expect sales and marketing expenses to increase on an absolute dollar basis in future periods as we hire additional personnel, expand into new markets and continue to promote our advertising solutions. 20 Research and Development. Research and development expenses consist primarily of compensation, consulting expenses and expenses for hardware, software and materials associated with the development and improvement of our adMonitor technology. To date, all research and development costs have been expensed as incurred. Research and development expenses increased to $3.4 million, or 25.2% of revenue, for the three months ended September 30, 2000, compared to $1.0 million, or 49.4% of revenue, for the three months ended September 30, 1999. Research and development expenses increased to $8.8 million, or 25.6% of revenue, for the nine months ended September 30, 2000, compared to $1.4, or 35.4% of revenue, for the nine months ended September 30, 1999. This increase was due primarily to the deployment and enhancement of our adMonitor technology. We expect research and development expenses to increase significantly on an absolute dollar basis in future periods. General and Administrative. General and administrative expenses consist primarily of compensation and professional service fees. General and administrative expenses increased to $4.5 million, or 33.6% of revenue, for the three months ended September 30, 2000, compared to $1.4 million, or 66.7% of revenue, for the three months ended September 30, 1999. General and administrative expenses increased to $12.0 million, or 35.0% of revenue, for the nine months ended September 30, 2000, compared to $2.7 million, or 68.1% of revenue, for the nine months ended September 30, 1999. This increase was primarily a result of increases in personnel expenses, professional service fees and facility expenses necessary to support our growth. We expect general and administrative expenses to increase on an absolute dollar basis as we hire additional personnel and incur additional costs related to the growth of our business and our operation as a public company. For the quarter ended September 30, 2000, our bad debt expense related to uncollected advertising fees was $1.8 million. Other Income for the three and nine months ended September 30, 2000 Other income was $814,572. Other income consists primarily from legal settlements. Interest Income. Net interest income primarily consists of interest earned on cash balances, offset by interest expense incurred with respect to our capital leases and equipment financing obligations. Net interest income was $1.4 million for the three months ended September 30, 2000. Net interest expense was $46,300 for the three months ended September 30, 1999. On a year to date basis, net interest income for the nine months ended September 30, 2000 was $3.9 million, compared to net interest expense of $51,100 for the nine months ended September 30, 1999. Liquidity and Capital Resources From our inception through September 1998, we financed our operations primarily through internally generated cash flow. In September 1998, we completed a private placement of equity securities to an individual investor and received $1.9 million in net proceeds. In September 1999, we completed two private placements of equity securities and received $12.9 million in net proceeds. In February 2000, we completed our initial public offering of 7,475,000 shares of our common stock (including 975,000 shares subject to the underwriter's over-allotment option) at $15.00 per share. The initial public offering resulted in aggregate net proceeds of approximately $102.6 million, net of underwriting discounts and expenses of the offering. The net proceeds from these private placements and our initial public offering are being used to expand our business operations, to hire additional personnel, to provide additional services and for general corporate purposes related to the expansion of our business. Net cash used by operating activities was $10.3 million for the nine months ended September 30, 2000, and $3.2 for the nine months ended September 30, 1999. Cash used in operating activities for the nine months ended September 30, 2000 resulted from a net loss of $15.2 million, as well as a $6.8 million increase in accounts receivable, partially offset by a $7.5 million increase in accounts payable and accrued expenses, a $410,000 decrease in prepaids and other current assets and a $595,000 increase in deferred revenue. Cash used in operating activities for the nine months ended September 30, 1999 resulted from a net loss of $4.5 million, a $1.8 million increase in accounts receivable and prepaids and other current assets, and a $53,000 decrease in deferred revenue partially offset by a $3.0 million increase in accounts payable and accrued expenses. Net cash used in investing activities was $12.6 million for the nine months ended September 30, 2000, and $530,100 for the nine months ended September 30, 1999. Cash used in investing activities was primarily related to purchases of property and equipment related to research and development. Additionally, $196,000 was related to costs associated with the acquisition of webMillion. 21 Net cash provided by financing activities was $106.0 million for the nine months ended September 30, 2000 and $13.2 million for the nine months ended September 30, 1999. Cash provided by financing activities for the nine months ended September 30, 2000 resulted primarily from the proceeds from our initial public offering of common stock. Cash provided by financing activities for the nine months ended September 30, 1999 resulted primarily from net borrowings under capital lease obligations and two senior promissory note agreements in the aggregate principal amount of $1,000,000. Although we do not have any material commitments for capital expenditures, we anticipate that we will experience a substantial increase in our capital expenditures consistent with our anticipated growth in operations, infrastructure and personnel. We currently anticipate that we will continue to experience significant growth in operating expenses for the foreseeable future. We believe that our existing cash and cash equivalents will be sufficient to meet our anticipated cash needs for working capital and capital expenditures for at least the next 12 months. Acquisition of webMillion.com On July 24, 2000, L90, Inc. completed the merger with webMillion.com. Pursuant to the Merger Agreement, we issued 1,901,381 shares of our common stock to all the shareholders of webMillion. Holders of warrants of webMillion received, in the aggregate, the right to purchase from us 98,619 shares of common stock at a price per share of $1.9792. A total of 361,063 of the merger shares are being held in a three year escrow as security for the indemnification obligations of webMillion's former shareholders pursuant to the Merger Agreement. A majority of outstanding voting securities of webMillion were owned by Messrs. Hauser and Adcock. The transaction was structured as a reverse triangular merger and will be accounted for through the purchase method of accounting. As a result of the tax free purchase, webMillion now is our wholly- owned subsidiary. There is no material relationship between Messrs. Hauser and Adcock, us, our affiliates, any of our directors or officers, or any associate of any such director or officer. Year 2000 Compliance We did not experience any significant malfunctions or errors in our operating or business systems when the date changed from 1999 to 2000. Based on operations since January 1, 2000, we do not expect any significant impact to our on-going business as a result of the "Year 2000 issue." However, it is possible that the full impact of the date change, which was of concern due to computer programs that use two digits instead of four digits to define years, has not been fully recognized. We cannot quantify the amount of our potential exposure but we believe that any such problems are likely to be minor and correctable. In addition, we could still be negatively impacted if our customers or suppliers are adversely affected by the Year 2000 or similar issues. We currently are not aware of any significant Year 2000 or similar problems that have arisen for our customers and suppliers. In preparation for the year 2000, we incurred internal staff costs as well as consulting and other expenses. Year 2000 expenses incurred to date totaled less than $100,000. Risk Factors Relating to Our Business and Operations THIS REPORT CONTAINS FORWARD-LOOKING STATEMENTS BASED ON OUR CURRENT EXPECTATIONS, ASSUMPTIONS, ESTIMATES AND PROJECTIONS ABOUT L90 AND OUR INDUSTRY. THESE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. L90'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, AS MORE FULLY DESCRIBED IN THIS SECTION AND ELSEWHERE IN THIS REPORT. L90 UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING STATEMENTS FOR ANY REASON, EVEN IF NEW INFORMATION BECOMES AVAILABLE OR OTHER EVENTS OCCUR IN THE FUTURE. 22 Our revenues and prospects are difficult to forecast because we have only been operating our business since January 1997 We began our business in January 1997 and have a brief operating history. Therefore, we lack sufficient historical financial and operating data on which to adequately forecast future operating results. You should consider our prospects in light of the risks, uncertainties, expenses and difficulties frequently encountered by companies in an early stage of development, particularly companies in new and rapidly evolving markets such as online advertising. These risks include our ability to: . manage our growth effectively; . anticipate and adapt to the rapid changes in the Internet; . continue to develop and upgrade our technology; . respond to competitive developments in our market; and . continue to identify, attract, retain and motivate qualified personnel. If we are unsuccessful in addressing these risks, our revenues may not grow in accordance with our business model and may fall short of expectations of market analysts and investors, which could negatively affect the price of our stock. We have a history of losses and expect to incur substantial losses in the future We incurred net losses of approximately $15.2 million for the nine months ended September 30, 2000 and $5.8 million for the nine months ended September 30, 1999. Our accumulated deficit from inception, as of September 30, 2000, was approximately $24.0 million. We expect to continue to incur substantial net losses for the foreseeable future due to a high level of planned operating expenditures. We are making these expenditures in anticipation of higher revenue, but we cannot assure you that we will realize higher revenue. If we do not succeed in substantially increasing our revenue, our losses may continue indefinitely and would likely increase. In addition, we cannot assure you that we will return to profitability. Intellectual property infringement claims could prevent or hinder our ability to deliver advertisements over the Internet We face the risk that other parties' intellectual property positions will impair our ability to deliver advertisements over the Internet and as a result, our operations may be severely harmed. Third parties may have, or may in the future be granted, patents that cover our technology or other aspects of our business. We may be limited in our ability to use our technology or conduct our business without licenses from these third parties, which may not be available on commercially reasonable terms, if at all. In that case, we would be required to alter our technology in a way that would not infringe the subject patent, and we cannot assure you that these alterations would be successful. In addition, we may become subject to claims of alleged infringement based upon patents or other intellectual property rights of third parties, including the DoubleClick patent litigation described below. Such claims and any resulting litigation, should they occur, could result in significant expenses to us and divert management time and other resources, the extent of which cannot be quantified with any reasonable accuracy. Additionally, some of our contracts with Web publishers require us to indemnify the Web publishers for losses they incur arising from any infringement by our ad serving technology of a third party's intellectual property rights. On November 12, 1999, DoubleClick filed a patent infringement lawsuit against us in the United States District Court for the Eastern District of Virginia. The lawsuit was moved to the United States District Court for the Southern District of New York in March 2000. The suit alleges that we are infringing, and inducing and contributing to the infringement by third parties of, a patent held by DoubleClick related to methods and networks for delivering, targeting and measuring advertising over the Internet. DoubleClick had sought treble damages in an unspecified amount, a preliminary and permanent injunction from further alleged infringement and attorneys' fees and costs. On November 3, 2000, L90 and DoubleClick entered into an agreement pursuant to which the parties would enter into definitive documents to settle the patent litigation, including L90's related counterclaims. Under the definitive documents, the parties would dismiss the lawsuit with prejudice and grant each other certain rights in certain of their respective patents. 23 Our quarterly operating results may fluctuate, which may make it difficult to forecast our future performance and may result in volatility in our stock price Although we intend to increase our spending and investment to support our planned growth, our revenue, and some of our costs, will be much less predictable. This unpredictability will likely result in significant fluctuations in our quarterly results. Therefore, you should not rely on quarter-to-quarter comparisons of results of operations as an indication of our future performance. Because of our limited operating history and the emerging nature of our industry, we anticipate that securities analysts may have difficulty in accurately forecasting our results. If our operating results are below market expectations, the price of our common stock will likely decline. The following are among the factors that could cause significant fluctuations in our operating results: . market acceptance of the Internet as an advertising medium; . delay or cancellation of advertising contracts; . expiration or termination of contracts with Web publishers; . introduction of new or enhanced services by us or our competitors; . system outages, delays in obtaining new equipment or problems with upgrades; . disruption or impairment of the Internet; . changes in our pricing policies or those of our competitors; . seasonality in the demand for advertising; . changes in government regulation of the Internet; and .general economic and market conditions, as well as economic and market conditions specific to the Internet. 24 Government regulation may affect our ability to gather, generate or use information for profiles and may hinder our ability to conduct business The legal and regulatory environment governing the Internet and the use of information about Web users is uncertain and may change. A number of lawsuits have recently been filed against certain Internet companies related to online privacy. In addition, the Federal Trade Commission has begun investigations of, and several attorneys general have instituted legal proceedings against, certain Internet companies related to online privacy. Web sites typically place small files of information, commonly known as cookies, on a Web user's hard drive, generally without the user's knowledge or consent. Although it is possible to modify a Web user's Internet browser software to prevent the placement of cookies, few users currently choose to do so. Our adMonitor tracking technology is able to use cookies to collect data about a Web user's movement through the Internet. Some Internet commentators and privacy advocates have suggested limiting or eliminating the use of cookies and restricting the collection of data through the use of cookies. United States legislators and various state governments in the past have introduced a number of bills aimed at regulating the collection and use of data from Internet users and additional similar bills are currently being considered. The European Union has recently adopted a directive addressing data privacy that may result in limitations on the collection and the use of specific personal information regarding Internet users. In addition, Germany and other European Union member countries have imposed their own laws protecting data that can become personally identifiable through subsequent processing. Other countries have enacted, or are considering, limitations on the use of personal data as well. The effectiveness of our technology could be impaired by any limitation in the use of cookies or the collection of data from Internet users, and consequently, our business and results of operations could be harmed. A number of laws and regulations have been, and in the future may be, adopted covering issues such as pricing, acceptable content, taxation and quality of products and services on the Internet. This legislation could inhibit the growth in the use of the Internet and decrease the acceptance of the Internet as a communications and commercial medium. In addition, due to the global accessibility of the Internet, it is possible that multiple federal, state or foreign jurisdictions might inconsistently regulate our activities and our customers. Any of these developments could limit our ability to do business and to generate revenue. Our common stock and our stock price may experience extreme price and volume fluctuations The stock market has experienced extreme price and volume fluctuations. The market prices of the securities of Internet-related companies have been especially volatile. The market price of our common stock has fluctuated in the past and is likely to be highly volatile. The market price of our common stock could be subject to wide fluctuations in response to factors such as: . actual or anticipated variations in our revenue; . earnings and cash flow; . announcements of new service offerings; . technological innovations; . competitive developments with respect to patents, copyrights or proprietary rights; . changes in financial estimates by securities analysts; . conditions and trends in the Internet and electronic commerce industries; 25 . adoption of new accounting standards affecting our industry; and . general market conditions. If we do not effectively manage our growth and expansion, our ability to provide services could suffer. Our success depends in part on our ability to manage our growth and expansion. We have grown to 180 full-time and three part-time employees as of September 30, 2000 from 96 full-time and three part-time employees as of September 30, 1999. We plan to continue to expand our sales, marketing, technology and administrative organizations. This anticipated future expansion may place a significant strain on our managerial, operational and financial resources. In addition, we will need to continue to improve our financial and managerial controls, enhance our reporting systems and procedures and expand, train and manage our work force. If we are unable to attract and retain sales and client service personnel, or if we are unable to adequately train our sales personnel in a timely manner, our business and future revenue growth could suffer Our future success depends on our ability to identify, recruit, train, integrate and retain qualified sales and marketing, managerial and technical personnel. We anticipate the need to hire a significant number of personnel to achieve our growth objectives. Competition for these personnel is intense. The inability to attract, integrate and retain the necessary sales, marketing, technical and administrative personnel could harm our ability to generate revenue. If our ad delivery and tracking technology is not effective, our relationships with our advertising clients may be harmed Because our adMonitor technology is relatively new, we cannot assure you that the use of our adMonitor services will remain effective in serving, targeting and tracking advertisements or other marketing and promotional activities. Our revenue would be adversely affected if advertisers do not perceive that the use of our adMonitor services will improve the effectiveness of their marketing campaigns. From time to time, a small number of web publishers may account for a significant percentage of our advertising revenue and our failure to develop and sustain long-term relationships with web publishers, or the reduction in traffic of a current web publishers in our network, could limit our ability to generate revenue. For the three months ended September 30, 2000, one web publisher accounted for approximately 16% of our revenue. Our contracts with web publishers are generally one year in duration and can be terminated by either party with as little as 30 days notice. We cannot assure you that any of our web publishers will continue their relationships with us. Additionally, we may lose web publishers as a result of acquisitions or as a result of the discontinuation of operations of any of our web publishers. From time to time, a limited number of marketers may account for a significant percentage of our revenue and a loss of one or more of those marketers could cause our results of operations to suffer. For the three months ended September 30, 2000, revenue from one marketer accounted for approximately more than 11% of our revenue. Marketers typically purchase advertising under short-term purchase order agreements. We cannot assure you that our top marketers or our other marketers will continue their relationships with us. The loss of one or more of the marketers that represent a significant portion of our revenue could cause our results of operations to suffer. In addition, many of our contracts with web publishers require us to bear the risk of non-payment of advertising fees from marketers. Accordingly, the non-payment or late payment of amounts due to us from a significant marketer could cause our financial condition to suffer. 26 Since we expect to derive substantially all of our revenue in the foreseeable future from online advertising, our ability to generate revenue may suffer if the Internet is not increasingly accepted as an effective advertising medium If the online advertising market does not develop further, or develops more slowly than expected, we may not generate enough advertising revenue to return to profitability. Since we expect to derive substantially all of our revenue in the foreseeable future from online advertising, our future success is highly dependent on the increased use of the Internet as an advertising medium. Online advertising is relatively new and rapidly evolving, and its effectiveness, compared to traditional media, is uncertain. Widespread use of online advertising depends upon businesses accepting a new way of marketing their products and services. Businesses may view online advertising as undesirable or less effective for promoting their products and services relative to traditional advertising media. In addition, the widespread adoption of technologies that permit Internet users to block advertisements on Web sites could inhibit the growth of the Internet as an advertising medium. Since our business depends in part on market acceptance of electronic commerce, if electronic commerce does not grow, or grows slower than we expect, our ability to generate revenue may suffer Our success depends in part on market acceptance of electronic commerce. A number of factors outside of our control could prevent this acceptance, including the following: . the necessary network infrastructure for substantial growth in usage of the Internet may not develop adequately; . insufficient availability of telecommunication services or changes in telecommunication services could result in slower response times; and . negative publicity and consumer concern surrounding the security of transactions could impede the growth of electronic commerce. If electronic commerce does not grow, or grows slower than we expect, due to any of the above factors, or any other factor, our ability to generate revenue could suffer. Failure of our technology and computing systems could harm our relationships with our clients and cause our results of operations to suffer The continuing and uninterrupted performance of our servers and networking hardware and software infrastructure is critical to our business. Periodically, we have experienced minor systems interruptions, including Internet disruptions, which we believe may occur periodically in the future. Any system failure that causes interruptions in our ability to service our customers, including failures that affect our ability to deliver advertisements without significant delay to the viewer, could reduce customer satisfaction and, if sustained or repeated, could cause our results of operations to suffer. Further, an increase in the volume of advertising delivered through our servers could strain the capacity of our hardware and software, which could lead to slower response times or system failures. If we do not effectively address any capacity constraints, customer satisfaction could be harmed and our business would likely suffer. 27 Failure of the Web infrastructure to support the growth of the electronic marketplace could limit the growth of our business The Internet may not in the future be a viable commercial marketplace because of inadequate development of the necessary infrastructure, slow development of complementary products, including high speed modems, delays in the development or adoption of new standards and protocols required to handle increased levels of Internet activity or increased government regulation. To the extent that the Internet continues to experience significant growth in the number of users and the level of use, we cannot assure you that the Internet infrastructure will continue to be able to support the demands placed on it by its users. If the necessary infrastructure or complementary products are not developed, our business may not grow and would likely suffer. Our failure to adequately respond to rapid changes in technology and the Internet could harm our ability to generate revenue The market for online products and services is subject to rapid change and characterized by evolving industry standards and frequent introductions of new technological developments. These new standards and technological developments could make our existing or future products or services obsolete. Keeping pace with the introduction of new standards and technological developments could result in significant additional costs or prove to be difficult or impossible for us. Any failure to keep pace with the introduction of new standards and technological developments on a cost-effective basis could result in increased costs and harm our ability to generate revenue. Many competitors have substantial competitive advantages that may make it more difficult for us to retain our existing advertisers and Web publishers and to attract new advertisers and Web publishers The markets for online advertising, direct marketing and ad delivery, or ad serving, and tracking technology are intensely competitive. We compete with television, radio, cable and print for a share of advertisers' total advertising budgets. We also compete with large Web publishers and Web search engine companies, such as America Online, Excite@Home, Infoseek and Yahoo!, for the online advertising budgets of advertisers. In addition, we compete with various Internet advertising networks, such as DoubleClick, 24/7 Media and Engage Technologies. In marketing our adMonitor products and services to Web publishers and advertisers, we also compete with providers of ad delivery, or ad serving, technology, database management and related services, including AdForce, DoubleClick and Engage Technologies. Many of our current and potential competitors enjoy competitive advantages over us, including significantly greater financial, technical and marketing resources. They may also enjoy significantly greater brand recognition and substantially larger bases of Web site clients and advertisers. As a result, our competitors may be able to respond more quickly than we can to new or emerging technologies and changes in client requirements. Our competitors may also have a significantly greater ability to undertake more extensive marketing campaigns, adopt more aggressive pricing policies and make more attractive offers to potential employees, strategic partners, advertisers and Web publishers. Further, we cannot assure you that our competitors will not develop online products and services that are equal to or superior to our products and services or that achieve greater market acceptance than our products and services. If we are unable to compete successfully against existing or potential competitors, our revenue and margins may decline. Our failure to successfully acquire and integrate new technologies and businesses could cause our results of operations to suffer We focus on creating sponsorship-oriented advertising campaigns that take full advantage of the unique capabilities of the Internet. The Internet is a quickly changing environment, requiring companies to constantly improve their technology and develop or acquire new technology. We intend to acquire and make investments in complementary businesses, products, services or technologies. On July 24, 2000, we completed the acquisition of webMillion.com, Inc. We cannot assure you that we will be able to identify other acquisition or investment candidates. Even if we do identify other candidates, we cannot assure you that 28 we will be able to make any potential acquisition or investment on commercially acceptable terms. Moreover, we may have difficulty integrating any acquired businesses, products, services or technologies into our operations. These difficulties could disrupt our business, distract our management and employees and increase our expenses. In addition, we may incur debt or issue equity securities to fund any future acquisitions. The issuance of equity securities could be dilutive to existing stockholders. In the webMillion.com acquisition, we issued an aggregate of 1,901,381 shares of common stock and warrants to purchase up to 98,619 additional shares of common stock. If we are unable to safeguard the security and privacy of our information, our results of operations may suffer Our technical infrastructure is potentially vulnerable to physical or electronic computer break-ins, viruses and similar disruptive problems. Weaknesses or vulnerabilities in the Internet, a user's personal computer or in our services could compromise the confidential nature of information transmitted over the Internet. These factors could require us to devote significant financial and human resources to protect against future breaches and alleviate or mitigate problems caused by security breaches. Security breaches could result in financial loss, litigation and other liabilities, any of which could cause our results of operations to suffer. Any failure by us to protect our intellectual property could harm our business and competitive position We generally protect our intellectual property through a combination of patent, trademark, trade secret and copyright laws, confidentiality agreements with our employees and third parties, and license agreements with consultants, vendors and clients. We have filed a patent application for our adMonitor technology in the United States. We have also filed applications for several trademarks internationally and in the United States. We cannot assure you that any of our patent or trademark applications will be approved. Even if these applications are approved, the patents or trademarks may be successfully challenged by others or invalidated. In addition, despite our efforts to protect our intellectual property, unauthorized parties may attempt to copy aspects of our services or to obtain and use information that we regard as proprietary. We may not have adequate remedies for any breach of confidentiality agreements, and our trade secrets may otherwise become known or independently developed by competitors. We may be liable for content available or posted on the Web sites of our publishers We may be liable to third parties for content in the advertising we serve if the music, artwork, text or other content involved violates the copyright, trademark or other intellectual property rights of such third parties or if the content is defamatory. Any claims or counterclaims could be time-consuming, result in costly litigation or divert management's attention. The loss of key employees would likely impair the growth of our business Our performance and future success is substantially dependent on the continued service of our executive officers and other key employees, all of whom are employed on an at-will basis. In particular, our success depends on the client relationships, management skills and industry and technical knowledge of our CEO and president, John C. Bohan, and our chief technology officer, Frank A. Addante. Given our early stage of development, we are dependent on our ability to retain and motivate highly qualified personnel, especially our management, technical and business development executives and other key employees. The loss of the services of one or more of our executive officers or other key employees would likely impair the growth of our business. Future sales of our common stock may affect the market price of our common stock. As of November 1, 2000, L90 had 23,710,986 shares of common stock outstanding, excluding 3,039,801 shares subject to options outstanding as of such date under its stock option plans that are exercisable at prices ranging from $1.20 to $27.88 per share. Additionally, certain holders of L90's common stock have registration rights with respect to their shares. L90 may be required to file one or more registration statements in compliance with these registration rights. L90 cannot predict the effect, if any, that future sales of common stock 29 or the availability of shares of common stock for future sale, will have on the market price of its common stock prevailing from time to time. Sales of substantial amounts of common stock, or the perception that such sales could occur, may materially and adversely affect prevailing market prices for its common stock. Our executive officers and directors exercise significant control over our company, including the ability to control the election of our board of directors and the outcome of corporate actions requiring stockholder approval Our executive officers and directors, in the aggregate, beneficially own or control a substantial number of the outstanding shares of our common stock as of September 30, 2000. Our officers, directors and their affiliates will have the ability to control the election of our board of directors and the outcome of corporate actions requiring stockholder approval, including merger and other changes of corporate control, going private transactions and other extraordinary transactions and terms thereof. Our planned international expansion may be affected by factors beyond our control We are currently evaluating the initiation of operations in selected international markets. This potential expansion could occur through internal growth, acquisition, or both. In June 2000, we established a branch office in London. Expansion into international markets will require substantial resources and attention from management. We have no experience in international operations and may not be able to compete effectively in international markets. We may face numerous risks inherent in conducting business internationally, such as: . the impact of recessions in economies outside the United States; changes in domestic regulatory requirements, as well as differences between domestic and foreign regulatory requirements; . export restrictions, including export controls relating to encryption technology; . reduced protection for intellectual property rights in some countries; . potentially adverse tax consequences; . difficulties and costs of staffing and managing foreign operations; . problems associated with any acquisitions we might pursue; . foreign political and economic instability; . tariffs and other trade barriers; . fluctuations in currency exchange rates; and . seasonal reductions in business activity. Our failure to address these risks adequately may cause our business, results of operations and financial condition to suffer. 30 We may need additional capital in the future to operate our business and we may experience difficulty in obtaining this additional capital We believe that our existing cash and cash equivalents will be sufficient to meet our anticipated cash needs for working capital and capital expenditures for at least the next 12 months. We may need to raise additional funds in the future to fund our operations, to enhance or expand the range of products and services we offer or to respond to competitive pressures or perceived opportunities. We cannot assure you that additional financing will be available on terms favorable to us, or at all. If adequate funds are not available or not available when required or on acceptable terms, the growth of our business and results of operations may suffer. We are subject to anti-takeover provisions, which may make it difficult for a third party to acquire us A number of recent acquisitions and consolidations have occurred in our industry. For example, DoubleClick acquired NetGravity in October 1999, and CMGI, Inc., which recently acquired Flycast Communications and Adforce, has agreed to sell Flycast Communications and Adsmart to its majority-owned operating company, Engage Technologies, Inc. We are subject to anti-takeover provisions that may make it difficult for a third party to acquire us. We are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law. In general, the statute prohibits a publicly held Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. For purposes of Section 203, a "business combination" includes a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an "interested stockholder" is a person who, together with affiliates and associates, owns, or within three years prior, did own, 15% or more of the corporation's voting stock. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK We are exposed to a variety of risks, including foreign currency fluctuations and changes in interest rates affecting the yield on our investments. Interest Rate Risk The primary objective of our investment activities is to preserve the principal while at the same time achieving an attractive return. To achieve this objective, we maintain a portfolio of investment grade cash equivalents and short-term investments. Although we are subject to interest rate risks, we believe an effective increase or decrease of 10% in interest rate percentages would not have a material adverse effect on our results from operations. The potential change noted above is based on sensitivity analysis we performed as of September 30, 2000. We did not hold derivative financial instruments as of September 30, 2000, and have never held these instruments in the past. Foreign Currency Essentially all of our sales and expenses are denominated in U.S. dollars and as a result we have experienced virtually no foreign exchange gains and losses to date. While we do expect to effect some transactions in foreign currencies during 2000, we do not anticipate that foreign exchange gains or losses will be significant. We have not engaged in foreign currency hedging activities to date. PART II ITEM 1. LEGAL PROCEEDINGS On November 12, 1999, DoubleClick filed a lawsuit against us in the United States District Court for the Eastern District of Virginia. The lawsuit was moved to the United States District Court for the Southern District of New York in March 2000. The suit alleges that we are infringing, and inducing and contributing to the infringement by third parties of, a patent held by DoubleClick related to methods and networks for delivering, targeting and measuring advertising over the Internet. DoubleClick had sought treble damages in an unspecified amount, a preliminary and permanent injunction from further alleged infringement and attorneys' fees and costs. On November 3, 2000, L90 and DoubleClick entered into an agreement pursuant to which the parties would enter into definitive documents to settle the patent litigation, including L90's related counterclaims. Under the definitive documents, the parties would dismiss the lawsuit with prejudice and grant each other certain rights in certain of their respective patents. We believe that the settlement will not have a material adverse effect on our business or our operations. For a description of the lawsuit, please see PART I, ITEM 3 (LEGAL PROCEEDINGS), in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1999, previously filed with the Securities and Exchange Commission. On September 7, 2000, JobsOnline filed a breach of contract lawsuit against us in the Circuit Court of Cook County, Illinois. The suit alleges breach of contract by L90 with respect to an Internet Advertising Agreement between the two parties. JobsOnline is seeking declaratory and injunctive relief and damages in an amount to be proven at trial. We believe this lawsuit is without merit and intend to vigorously defend ourselves against these claims. 31 ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS Sale of Unregistered Securities Upon the consummation of our initial public offering on February 2, 2000, all outstanding shares of our preferred stock were automatically converted into an aggregate of 5,276,156 shares of common stock. These shares were issued in reliance upon the exemption provided for by Section 3(a)(9) of the Securities Act. On February 2, 2000, DigaComm (L90), L.L.C. exercised a warrant on a cashless basis and purchased 276,825 shares of our common stock. The shares issued upon exercise of this warrant were issued in reliance upon the exemption provided for by Section 3(a)(9) of the Securities Act. On January 31, 2000, Development Ventures (Two) Inc. exercised a warrant and purchased an aggregate of 674,029 shares of our common stock at an aggregate purchase price of $3,093,793. The shares issued upon exercise of this warrant were issued in reliance upon the exemption provided for by Section 4(2) of the Securities Act, based upon the fact that we issued the shares in a sale not involving a public offering. On February 2, 2000, Rare Medium Group, Inc. exercised a warrant on a cashless basis and purchased 486,652 shares of our common stock. The shares issued upon exercise of this warrant were issued in reliance upon the exemption provided for by Section 3(a)(9) of the Securities Act. On January 28, 2000, William Apfelbaum exercised a warrant on a cashless basis and purchased 274,422 shares of our common stock. The shares issued upon exercise of this warrant were issued in reliance upon the exemption provided for by Section 3(a)(9) of the Securities Act. In addition, Mr. Apfelbaum exercised a warrant on January 27, 2000, and purchased 438,593 shares of our common stock at an aggregate purchase price of $750,000. The shares issued upon exercise of this warrant were issued in reliance upon the exemption provided for by Section 4(2) of the Securities Act, based upon the fact that we issued the shares in a sale not involving a public offering. On February 27, 2000, we issued to Entertaindom, Inc. a warrant to purchase an aggregate of 50,000 shares of our common stock at a purchase price per share of $15.00. This warrant was issued and sold in reliance upon the exemption provided for by Section 4(2) of the Securities Act, based on the fact that we issued this warrant in a sale not involving a public offering. On July 24, 2000, we issued an aggregate of 1,901,381 shares of common stock and warrants to purchase up to 98,619 additional shares of common stock to the former stockholders and warrant holders of webMillion.com, Inc. These securities were issued in exchange for all of the outstanding capital stock and warrants of webMillion.com, Inc. These securities were issued and sold in reliance upon the exemption provided for by Section 4(2) of the Securities Act and Regulation D promulgated thereunder. During the period covered by this Report, we issued and sold 62,976 shares of our common stock to employees, consultants, officers and directors upon the exercise of options for an aggregate consideration of $195,238.55. All shares of our common stock issued upon exercise of these options were issued and sold in reliance upon the exemption provided for under Rule 701 promulgated under the Securities Act of 1933, as amended. Use of Proceeds The effective date of the registration statement related to our initial public offering of shares of common stock was January 28, 2000 (SEC Registration No. 333-87607). Through our initial public offering in February 2000, we sold 7,475,000 shares of our common stock, inclusive of the underwriters' over allotment, at an initial public offering price of $15.00 per share. Our initial public offering was managed by SG Cowen Securities Corporation, Banc of America Securities LLC, CIBC Oppenheimer Corp. and Wit SoundView Corporation. The initial public offering resulted in gross proceeds of approximately $112.1 million, approximately $7.8 million of which was applied toward the underwriting discount and commission. Expenses related to the offering totaled approximately $1.7 million. Our net proceeds from the offering were approximately $102.6 million. From the time of receipt through March 31, 2000, these net proceeds have been applied toward general corporate purposes. Pending these uses, the net proceeds have been invested in short-term, investment grade, interest-bearing securities. 32 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K a. Exhibits. The following exhibits are filed as part of this Report. 10.1 Agreement and Plan of Merger dated July 7, 2000 by and among L90, Inc., WM Acquisition Corp., Inc., webMillion.com, Inc., Anthony Hauser and Kenneth Adcock, (previously filed on July 28, 2000 with the Commission as an Exhibit to L90's Current Report on Form 8-K, which is incorporated herein by reference). b. Reports on Form 8-K We filed a current report on Form 8-K dated July 24, 2000, Item 2, on July 28, 2000, announcing the completion of our acquisition of webMillion.com, Inc. Copies of the Agreement and Plan of Merger and the press release relating to the acquisition are appended as exhibits to the Report. We filed an amendment to our current report on Form 8-K/A dated July 24, 2000, Item 2, on October 5, 2000, to include financial statements and pro forma financial information with respect to our acquisition of webMillion.com, Inc., which is incorporated herein by reference. 33 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. L90, INC. Dated: June 7, 2002 By: /s/ Mitchell Cannold --------------------------------------- Name: Mitchell Cannold Title: President & Chief Executive Officer Dated: June 7, 2002 By: /s/ Steven M. Kantor --------------------------------------- Name: Steven M. Kantor Title: Vice President Finance 34 EXHIBITS INDEX Exhibit No. Exhibit ----------- ------- 10.1 Agreement and Plan of Merger dated July 7, 2000 by and among L90, Inc., WM Acquisition Corp., Inc., webMillion.com, Inc., Anthony Hauser and Kenneth Adcock, previously filed on July 28, 2000 with the Commission as an Exhibit to L90's Current Report on Form 8-K, which is incorporated herein by reference. 35

L90 INC 10-Q/A