sv1za
As filed with the Securities
and Exchange Commission on August 15, 2006
Registration
No. 333-131540
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Amendment No. 1
to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BroadVision, Inc.
(Exact name of Registrant as
specified in its charter)
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Delaware
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7371
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94-3184303
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code number)
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(I.R.S. Employer
Identification Number)
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585 Broadway
Redwood City, CA 94063
(650) 261-5100
(Address, including zip code,
and telephone number,
including area code, of
Registrants principal executive offices)
Pehong Chen
President and Chief Executive
Officer
BroadVision, Inc.
585 Broadway
Redwood City, CA 94063
(650) 261-5100
(Name, address, including zip
code, and telephone number,
including area code, of agent
for service)
Copies to:
Kenneth L. Guernsey
Virginia C. Edwards
Peter H. Werner
Cooley Godward
llp
101
California St., Fifth Floor
San Francisco,
California 94111
(415)
693-2000
Approximate date of commencement of proposed sale to the
public: From time to time after the registration
statement becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to
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Offering
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Aggregate
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Registration
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Securities to be Registered
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be Registered(1)
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Price Per Share
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Offering Price
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Fee(2)
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Common stock, par value
$0.0001 per share
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177,890,071 shares
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$0.45
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$80,050,531.95
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$8,566(5)
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Subscription Rights(3)
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177,890,071 shares
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N/A
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N/A
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$0(4)
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(1)
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Pursuant to Rule 416 of the Securities Act of 1933, there
are also being registered an indeterminate number of additional
shares of common stock as may become offered, issuable or sold
to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
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(2)
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Calculated in accordance with Rule 457(o) of the Securities
Act of 1933.
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(3)
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Consisting of 28,553,695 rights, each of which evidences the
right to subscribe for 5.87235 shares of BroadVision common
stock.
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(4)
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No consideration will be received by BroadVision upon
distribution of the subscription rights. No registration fee is
required for the registration of subscription rights pursuant to
Rule 457(g) of the Securities Act.
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(5) |
$8,074 paid with previous filing.
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The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and we are not soliciting offers to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION,
DATED August 15, 2006
PROSPECTUS
177,890,071 Shares
Common Stock
We are distributing to our stockholders, and certain holders of
warrants exercisable for BroadVision common stock, at no charge,
non-transferable subscription rights to purchase up to an
aggregate of 177,890,071 shares of BroadVision common stock
at a cash subscription price of $0.45 per share. Each
stockholder and eligible warrantholder will receive one
subscription right for each share of BroadVision common stock
owned of record (or underlying eligible warrants held of record)
on December 20, 2005. Each subscription right will entitle
the holder to purchase 5.87235 shares of BroadVision common
stock, rounded down in the aggregate to the nearest whole
number. We refer to this as the basic subscription
privilege. Each subscription right will carry with it an
over-subscription privilege for shares that are not otherwise
purchased through the exercise of the basic subscription
privilege.
The subscription rights will expire if they are not exercised by
5:00 p.m. Pacific Time on
[ ], 2006, the expected
expiration date of the rights offering. We, in our sole
discretion, may extend the period for exercising the
subscription rights. Subscription rights that are not exercised
by the expiration date of the rights offering will expire and
will have no value. As the subscription rights are irrevocable,
you should carefully consider whether or not to exercise your
subscription rights before the expiration date.
As there is no required minimum subscription, we cannot estimate
what the net proceeds will be as a result of the rights
offering. Actual net proceeds, if any, will be dependent on the
number of subscription rights exercised.
Investing in BroadVision common stock involves risks. You
should consider carefully the risk factors beginning on
page 4 before deciding whether to exercise your
subscription rights.
On March 8, 2006, BroadVision common stock ceased trading
on the NASDAQ National Market and began trading only on the Pink
Sheets®
under the symbol BVSN.
On [ ], 2006, the last reported sale
price for BroadVision common stock was
$[ ] per share.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2006
TABLE OF
CONTENTS
References in this prospectus to we, us
and our refer to BroadVision, Inc. and its
subsidiaries. BroadVision^, BroadVision
One-To-One^,
iGuide^, Interleaf^ and Interleaf Xtreme^ are our
U.S. registered trademarks. Our common law trademarks
(designated by
tm)
in the United States and other countries include BroadVision
Commerce, BroadVision Content, BroadVision Deployment,
BroadVision eMarketing, BroadVision Multi-Touchpoint,
BroadVision Portal, BroadVision Process, BroadVision
QuickSilver, BroadVision Search, Energizing
e-Business,
Click-to-Create,
BroadVision Command Center, BroadVision Publishing Center,
BroadVision Instant Publisher, and any of the registered marks
that are not registered in the particular country where the mark
is being used. Trademarks, service marks and trade names of
other companies appearing in this prospectus are the property of
their respective holders.
You should rely only on the information and representations
provided in this prospectus. We have not authorized anyone to
provide you with any different information or to make any
different representations in connection with any offering made
by this prospectus. This prospectus does not constitute an offer
to sell, or a solicitation of an offer to buy, in any state
where the offer or sale is prohibited. Neither the delivery of
this prospectus, nor any sale made under this prospectus shall,
under any circumstances, imply that the information in this
prospectus is correct as of any date after the date of this
prospectus.
i
QUESTIONS &
ANSWERS ABOUT THE RIGHTS OFFERING
What is
the rights offering?
The rights offering is a distribution, at no charge, of
non-transferable subscription rights on a pro rata basis to all
of our stockholders and eligible warrantholders. We are
distributing subscription rights for every share of BroadVision
common stock held (or underlying eligible warrants held) on
December 20, 2005, the record date. If all subscription
rights are exercised, we will issue approximately
177,890,071 shares of BroadVision common stock in the
rights offering, raising net proceeds of approximately
$80.0 million after deducting estimated offering expenses
payable by us.
What is
the purpose of the rights offering?
On November 18, 2005, our Chairman, Chief Executive
Officer, President, interim Chief Financial Officer and largest
stockholder, Dr. Pehong Chen, acquired through his wholly
owned affiliate Honu Holdings LLC, a Delaware limited liability
company (Honu), all of our outstanding senior
subordinated convertible notes (the Notes).
Including accrued interest, the Notes represented approximately
$15.5 million in debt obligations as of December 20,
2005. In order to relieve BroadVision from the liquidity
challenges presented by the Notes, Dr. Chen agreed to
cancel all amounts owed under the Notes in exchange for
34,500,000 shares of BroadVision common stock at an
effective price per share of $0.45, representing a 25% discount
to the December 20, 2005 closing price of BroadVision
common stock of $0.60 per share. We refer to this as the
Note Conversion. On March 8, 2006, we
cancelled the Notes and issued 34,500,000 new shares of common
stock to Dr. Chen. Because of the highly dilutive nature of
the Note Conversion, our primary purpose for the rights offering
is to allow the holders of BroadVision common stock at the time
of the Note Conversion an opportunity to further invest in
BroadVision in order to maintain their proportionate interest in
BroadVision common stock, at the same price per share as the
conversion price afforded to Dr. Chen in the
Note Conversion. 177,890,071 shares of BroadVision
common stock equals the number of shares that would have to be
acquired in the aggregate by our stockholders and eligible
warrantholders in order for our stockholders and eligible
warrantholders to maintain their proportionate interests in
BroadVision after the Note Conversion. On March 8,
2006, Dr. Chen waived any right to participate in the
rights offering. References herein to Dr. Chen include
references to Honu.
For reference, the following table shows the percentage of
outstanding BroadVision common stock represented by shares held
by Dr. Chen and Honu following the rights offering, given
various levels of participation in the rights offering by
eligible
participants:1
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% of subscription rights exercised by eligible
participants:
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0%
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25%
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50%
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100%
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[ ]
shares of BroadVision common stock held by Dr. Chen as of
August , 2006 will represent
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59
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36
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26
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17
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(1) |
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Based
on shares
of BroadVision common stock outstanding as of
August , 2006. |
If I am a
stockholder, how does the Note Conversion affect my
ownership interest in BroadVision?
The Note Conversion has had a highly dilutive effect on the
persons who hold BroadVision common stock at the time of the
Note Conversion. If you exercise your basic subscription
privilege in full and all other eligible participants also
exercise in full, your proportionate ownership interest in
BroadVision immediately after the rights offering will be the
same as it was immediately prior to the Note Conversion. If you
exercise your basic subscription privilege in full and all other
eligible participants do not all exercise in full, your
proportionate ownership interest in BroadVision will be greater
immediately following the rights offering than it was
immediately prior to the Note Conversion. Your proportionate
ownership interest will also be greater if you exercise and
receive shares pursuant to the over-subscription privilege. If
you do not exercise your subscription rights, you will lose any
value inherent in such rights and your proportionate ownership
interest in BroadVision immediately following the rights
offering will be less than it was immediately prior to the Note
Conversion.
ii
To better understand the dilutive effect of the Note Conversion
and how participation in this rights offering can counteract
that dilutive effect, the following table shows the percentage
of outstanding BroadVision common stock held by a stockholder
that held 1% of all outstanding BroadVision common stock prior
to the Note Conversion, given various levels of participation in
the rights offering by the stockholder and all other eligible
participants:1
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% of subscription rights exercised by other eligible
participants:
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0%
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25%
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50%
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100%
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If 1% stockholder does not
exercise subscription rights:
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0.50
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%
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0.31
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%
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0.23
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%
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0.15
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If 1% stockholder exercises
subscription rights in full:
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3.4
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2.1
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1.5
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1.0
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(1) |
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Based
on shares
of BroadVision common stock outstanding as of
August , 2006. |
What is a
subscription right?
Each full subscription right entitles a stockholder or eligible
warrantholder to purchase 5.87235 shares of BroadVision
common stock, rounded down in the aggregate to the nearest whole
number, at a subscription price of $0.45 per share and
carries with it a basic subscription privilege and an
over-subscription privilege.
What is
the basic subscription privilege?
The basic subscription privilege of the subscription rights
entitles you to purchase 5.87235 shares of BroadVision
common stock, rounded down in the aggregate to the nearest whole
number, at the subscription price for every subscription right
you hold.
What is
the over-subscription privilege?
The over-subscription privilege included with the subscription
rights entitles you, if you fully exercise your basic
subscription privilege, to subscribe for additional shares of
BroadVision common stock at the subscription price to the extent
that other subscription rights holders do not exercise their
subscription rights. If sufficient shares are available, we will
honor all over-subscription requests in full. If
over-subscription requests exceed the shares available, we will
allocate the available shares pro rata among those who
over-subscribed based on the number of shares subscribed for
pursuant to the basic subscription privilege. Pro
rata means in proportion to the number of shares of
BroadVision common stock that you and the other subscription
rights holders have purchased by exercising your basic
subscription privileges on your BroadVision common stock
holdings.
When does
the rights offering expire?
The rights offering expires at 5:00 p.m. Pacific Time on
[ ],
2006. We may extend the expiration date in our sole discretion
and for any reason. See The Rights Offering
Expiration Date; amendments and termination.
Am I
required to subscribe in the rights offering?
No.
What
happens if I choose not to exercise my subscription
rights?
You will retain your current number of shares of BroadVision
common stock even if you do not exercise your subscription
rights. If you choose not to exercise your subscription rights
and other stockholders exercise any of their subscription
rights, then the percentage of BroadVision common stock that you
own will decrease.
May I
sell or transfer my subscription rights if I do not want to
purchase any shares?
No. The subscription rights are not transferable. Only you may
exercise the subscription rights that are distributed to you.
iii
How do I
exercise my subscription rights if my shares are held in the
name of my broker, custodian bank or other nominee?
If you hold your shares in a brokerage account, custodian bank
or by another nominee, you will not receive a subscription
rights certificate. We will ask your broker, custodian bank or
other nominee to notify you of the rights offering. If you wish
to exercise your subscription rights, you will need to have your
broker, custodian bank or other nominee act for you. To indicate
your decision, you should complete and return to your broker,
custodian bank or other nominee the form entitled
Beneficial Owner Election Form. You should receive
this form from your broker, custodian bank or other nominee with
the other rights offering materials. You should contact your
broker, custodian bank or other nominee if you do not receive
this form, but you believe you are entitled to participate in
this offering.
How do I
exercise my subscription rights if my shares are held in my
name?
If you hold shares directly, you will receive a subscription
rights certificate. You may exercise your subscription rights by
completing and signing the purchase form that appears on the
back of each subscription rights certificate. You must then send
the completed and signed form, along with payment in full of the
subscription price for all shares of BroadVision common stock to
be purchased through the basic subscription privilege and, if
exercised, the over-subscription privilege, to Computershare,
the subscription agent.
The subscription agent must receive these documents and the
subscription payment no later than the time and date the rights
offering expires.
You may also exercise your subscription rights by following the
procedures for guaranteed delivery described under The
Rights Offering Guaranteed Delivery Procedures
beginning on page 23. In this case, you must deliver the
Notice of Guaranteed Delivery and subscription payment to the
subscription agent by the time and date the rights offering
expires. You must also deliver the properly completed
subscription rights certificate to the subscription agent no
later than three business days following the time and date the
rights offering expires.
We have provided more detailed instructions on how to exercise
your subscription rights under The Rights
Offering Exercise of Subscription Rights
beginning on page 19 and with the subscription rights
certificate accompanying this prospectus.
What
should I do if I want to participate in the rights offering and
I am a stockholder in a foreign country or in the armed
services?
The subscription agent will mail subscription certificates to
you if you are a rights holder whose address is outside the
United States or if you have an army post office or a fleet post
office address. To exercise your subscription rights, you must
notify the subscription agent on or prior to 5:00 p.m.
Pacific Time on
[ ],
2006, and take all other steps that are necessary to exercise
your subscription rights, on or prior to that time. If you do
not follow these procedures prior to the expiration of the
rights offering, your subscription rights will expire.
If I
exercise my subscription rights in the rights offering, may I
cancel or change my decision?
No. All exercises of subscription rights are irrevocable.
Will I be
charged a sales commission or a fee if I exercise my
subscription rights?
We will not charge a brokerage commission or a fee to
subscription rights holders for exercising their rights.
However, if you exercise your subscription rights through a
broker or nominee, you will be responsible for any fees charged
by your broker or nominee.
If I am a
current BroadVision stockholder, what are the United States
federal income tax consequences of exercising my subscription
rights?
A holder of BroadVision common stock generally should not
recognize income or loss for federal income tax purposes in
connection with the receipt or exercise of subscription rights
in the rights offering. We urge you to consult your own tax
advisor with respect to the particular tax consequences of the
rights offering or the related share issuance to you. See
Certain United States Federal Income Tax
Consequences beginning on page 25.
iv
Are there
risks involved in exercising my subscription rights?
Yes. A purchase of BroadVision common stock involves a high
degree of risk. You should read and carefully consider the
information set forth under Risk Factors beginning
on page 4 and the information contained elsewhere in this
prospectus. You should decide whether to subscribe for
BroadVision common stock based upon your own assessment of your
best interests.
What is
the recommendation of BroadVisions board of directors
regarding the rights offering?
BroadVisions board of directors makes no recommendation as
to whether or not you should subscribe for BroadVision common
stock.
Whom
should I contact with questions?
If you have questions or need assistance, please contact
Kent Liu, our Vice President of Finance, at:
BroadVision, Inc.
585 Broadway
Redwood City, CA 94063
(650) 261-5100
For further assistance on how to subscribe for shares, you may
also contact the subscription agent for the rights offering by
telephone at:
Computershare Trust Company, Inc.
(800) 962-4284 x4732
v
PROSPECTUS
SUMMARY
You should read the following summary together with the
entire prospectus, including the more detailed information in
our financial statements and related notes referred to elsewhere
in this prospectus. You should carefully consider, among other
things, the matters discussed in Risk Factors.
BROADVISION,
INC.
Our
Business
We develop, market and support a suite of personalized
self-service web applications that enable organizations to unify
their
e-business
infrastructure and conduct both interactions and transactions
with employees, partners and customers. Our integrated suite of
process, commerce, portal and content solutions helps
organizations rapidly increase revenues and reduce costs. As of
December 31, 2005, we had licensed our products to more
than 1,000 customers.
Corporate
Information
We were incorporated in Delaware in May 1993 and have been a
publicly traded corporation since 1996. From 2001 to
December 31, 2005, our annual revenue has declined and we
have incurred significant losses and had negative cash flows
from operations. As of December 31, 2005, we had negative
working capital and an accumulated deficit of approximately
$1.2 billion. The majority of these accumulated losses to
date have resulted from non-cash charges associated with our
2000 acquisition of Interleaf, Inc. and restructuring charges
related to excess real estate. During 2004, we entered into a
series of termination agreements to buy out of nearly all of our
excess lease obligations. In November 2004, we issued
$16 million in aggregate principal amount of senior
subordinated secured convertible notes (the Notes).
In November 2005, Dr. Pehong Chen, our Chairman, Chief
Executive Officer, President, interim Chief Financial Officer
and largest stockholder, acquired all Notes then outstanding and
agreed to cancel all amounts owed under the Notes in exchange
for 34,500,000 shares of BroadVision common stock at an
effective price per share of $0.45. On March 8, 2006, we
cancelled the Notes and issued to Dr. Chen
34,500,000 shares of BroadVision common stock.
Our principal executive offices are located at 585 Broadway,
Redwood City, California 94063. Our telephone number is
(650) 261-5100.
Our website address is www.broadvision.com. The information on,
or that can be accessed through, our website is not part of this
prospectus.
RIGHTS
OFFERING SUMMARY
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Rights Granted |
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We have granted to each record holder of BroadVision common
stock, and certain holders of warrants exercisable for
BroadVision common stock, on the record date subscription
rights, consisting of a basic subscription privilege and
an over-subscription privilege for each share of BroadVision
common stock held by such record holder (or underlying warrants
held on the record date). Each basic subscription privilege will
entitle the stockholder or warrantholder to subscribe for and
purchase 5.87235 shares of BroadVision common stock,
rounded down in the aggregate to the nearest whole number, at a
subscription price of $0.45 per share. |
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To exercise your rights, you must deliver either a properly
completed subscription rights certificate or a Notice of
Guaranteed Delivery to the subscription agent along with payment
of the applicable subscription price in immediately available
funds before 5:00 p.m. Pacific Time on
[ ],
2006. |
1
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Securities Offered |
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We are offering shares of BroadVision common stock, the rights
of which are described below and in greater detail under the
caption Description of Capital Stock, beginning on
page 85. |
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Exercise some or all of your rights |
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You may exercise some or all of your rights, or you may choose
not to exercise any of your rights. |
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Record date |
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December 20, 2005 |
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Expiration date and time |
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The rights expire at 5:00 p.m. Pacific Time on
[ ],
2006, unless we extend the rights offering. Rights not exercised
by the expiration date will be null and void. |
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Subscription agent |
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Computershare Trust Company, Inc.
By Mail:
P. O. Box 1596
Denver, Colorado 80201
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By Hand:
350 Indiana Street, Suite 800
Golden, Colorado 80401
(800) 962-4284 x4732 |
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Reasons for the rights offering |
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Dr. Chen agreed to cancel all amounts owed under the Notes,
which represented approximately $15.5 million in debt
obligations as of December 20, 2005, in exchange for shares
of BroadVision common stock at an effective price per share of
$0.45. On March 8, 2006, we cancelled the Notes and issued
34,500,000 shares of BroadVision common stock. We refer to
this transaction as the Note Conversion. We are
providing the subscription rights in connection with the
Note Conversion to allow our stockholders to maintain the
proportionate ownership interest they held in BroadVision
immediately prior to the Note Conversion. |
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Use of proceeds |
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The net proceeds from the rights offering, if any, will be used
for general working capital purposes. |
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No board recommendation |
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Our board of directors makes no recommendation to BroadVision
stockholders regarding the exercise of rights under this
offering. Stockholders and eligible warrantholders who exercise
subscription rights risk the complete loss of their investment.
We refer you to the section entitled Risk Factors
beginning on page 4. |
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Non-transferability of rights |
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The rights are not transferable and may be exercised only by the
stockholder or warrantholder of record on the record date. |
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No revocation |
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If you exercise any rights, you are not allowed to revoke or
change your exercise or request a refund of monies paid. |
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U.S. federal income tax consequences |
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For U.S. federal income tax purposes, a stockholder may
recognize taxable income upon the receipt of rights. See
Certain United States Federal Income Tax
Consequences beginning on page 25. We urge you to
consult your own tax adviser concerning the tax consequences of
this rights offering as result of your tax situation. |
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Withdrawal, amendment and extension |
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We may withdraw, amend or extend the rights offering at any time
prior to the expiration date. If we withdraw the rights
offering, we will return all funds received in the rights
offering, without interest, to those persons who exercised their
rights and subscribed for shares in the rights offering. |
2
SUMMARY
CONSOLIDATED FINANCIAL DATA
You should read the following summary consolidated financial
data in conjunction with our consolidated financial statements
and the related notes and the sections of this prospectus
entitled, Selected Financial Data and
Managements Discussion and Analysis of Financial
Condition and Results of Operations. The summary
consolidated financial data as of and for the years ended
December 31, 2003, 2004 and 2005, including certain
information for 2004 that has been restated, is derived from our
audited consolidated financial statements that are contained in
our Annual Report on Form 10-K for the year ended December 31,
2005 that is incorporated herein by reference. The summary
consolidated financial data for the three months ended
March 31, 2005, including certain information that has been
restated, and as of and for the three months ended
March 31, 2006 are derived from our unaudited condensed
consolidated financial statements contained in our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2006 that is
incorporated herein by reference. The unaudited condensed
consolidated financial statements include, in the opinion of
management, all adjustments, consisting only of normal,
recurring adjustments, that management considers necessary for a
fair statement of the results of those periods. These historical
results are not necessarily indicative of results to be expected
in any future period and the results for the three months ended
March 31, 2006 should not be considered indicative of
results expected for the full fiscal year ended
December 31, 2006.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Three Months Ended March 31,
|
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
|
(In thousands, except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
Consolidated Statement of
Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
88,081
|
|
|
$
|
78,004
|
|
|
$
|
60,121
|
|
|
$
|
16,367
|
|
|
$
|
12,624
|
|
Operating income (loss)
|
|
|
(37,931
|
)
|
|
|
20,366
|
|
|
|
(35,013
|
)
|
|
|
(1,485
|
)
|
|
|
1,264
|
|
Net income (loss)
|
|
$
|
(35,471
|
)
|
|
$
|
18,566
|
|
|
$
|
(38,966
|
)
|
|
$
|
7,413
|
|
|
|
881
|
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings (loss) per share
|
|
$
|
(1.08
|
)
|
|
$
|
0.55
|
|
|
$
|
(1.14
|
)
|
|
$
|
0.22
|
|
|
|
0.02
|
|
Diluted earnings (loss) per share
|
|
$
|
(1.08
|
)
|
|
$
|
0.54
|
|
|
$
|
(1.14
|
)
|
|
$
|
0.19
|
|
|
|
0.02
|
|
Shares used in
computation basic earnings (loss) per share
|
|
|
32,800
|
|
|
|
33,539
|
|
|
|
34,228
|
|
|
|
33,971
|
|
|
|
42,958
|
|
Shares used in
computation diluted earnings (loss) per share
|
|
|
32,800
|
|
|
|
34,321
|
|
|
|
34,228
|
|
|
|
39,968
|
|
|
|
43,068
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
As of March 31,
|
|
|
2003
|
|
2004
|
|
2005
|
|
2006
|
|
|
(restated)
|
|
(Unaudited)
|
|
|
(In thousands)
|
|
|
|
Consolidated Balance Sheet
Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
78,776
|
|
|
$
|
41,851
|
|
|
$
|
4,849
|
|
|
|
10,644
|
|
Working capital (deficit)
|
|
|
748
|
|
|
|
(20,273
|
)
|
|
|
(35,872
|
)
|
|
|
(13,214
|
)
|
Total assets
|
|
|
195,082
|
|
|
|
144,653
|
|
|
|
49,942
|
|
|
|
55,840
|
|
Debt and capital leases, less
current portion
|
|
|
969
|
|
|
|
4,227
|
|
|
|
|
|
|
|
|
|
Accumulated deficit
|
|
|
(1,204,675
|
)
|
|
|
(1,186,109
|
)
|
|
|
(1,225,075
|
)
|
|
|
(1,224,194
|
)
|
Total stockholders equity
(deficit)
|
|
|
7,950
|
|
|
|
28,341
|
|
|
|
(9,723
|
)
|
|
|
12,073
|
|
3
RISK
FACTORS
You should carefully consider the following factors, together
with the other information contained in this prospectus, before
exercising subscription rights or purchasing the BroadVision
common stock we are offering. An investment in BroadVision
common stock involves a high degree of risk and may not be
appropriate for investors who cannot afford to lose their entire
investment.
Risks
Relating to the Rights Offering
As a
holder of BroadVision common stock, you may suffer significant
dilution of your percentage ownership of BroadVision common
stock and our Chairman, Chief Executive Officer, President and
largest stockholder may hold a controlling interest in the
outstanding BroadVision common stock.
The Note Conversion has had a highly dilutive effect on the
holders of BroadVision common stock. If you do not fully
exercise your subscription rights and other eligible
participants exercise their subscription rights to a greater
extent that you do, your proportionate voting and ownership
interest will be further reduced and the percentage that your
original shares represent of our expanded equity after exercise
of the subscription rights will be diluted. For example, if you
owned 1% of our outstanding common stock (approximately
344,000 shares) on the record date, the new shares issued
in the Note Conversion reduced your ownership percentage to
approximately 0.5% of the shares outstanding immediately after
the Note Conversion. If you exercise none of your
subscription rights while all other subscription rights are
exercised, then your percentage ownership will be further
reduced to approximately 0.15%. The magnitude of the reduction
of your percentage ownership will depend upon the extent to
which you participate in the rights offering. Assuming no
eligible participant exercises its subscription rights,
Dr. Chens percentage ownership in BroadVision common
stock will remain at approximately 59%. As the holder of a
majority of the outstanding BroadVision common stock, Dr. Chen
would continue to be able to exercise significant control over
the Company and would continue to be able to determine the
outcome of matters given to the Companys stockholders for
their approval.
The
subscription price per share is not an indication of our value,
and you may not be able to sell shares purchased upon the
exercise of your subscription rights at a price equal to or
greater than the subscription price.
The subscription price per share does not necessarily bear any
relationship to the value of our assets, operations, cash flows,
earnings, financial condition or any other established criteria
for value. As a result, you should not consider the subscription
price as an indication of the current value of our company or
BroadVision common stock. We cannot assure you that you will be
able to sell shares purchased in this offering at a price equal
to or greater than the subscription price.
The
rights offering may cause the price of BroadVision common stock
to decrease immediately, and this decrease may
continue.
The subscription price per share of $0.45 equaled approximately
75% of the closing price of BroadVision common stock on the
NASDAQ National Market on December 20, 2005 (on
March 8, 2006, BroadVision common stock, ceased trading on
the NASDAQ National Market and began trading on the Pink
Sheets®
under the symbol BVSN). This discount, along with
the number of shares we propose to issue and ultimately will
issue if the rights offering is completed, may result in an
immediate decrease in the market value of BroadVision common
stock. This decrease may continue after the completion of the
rights offering. On [ ], 2006, the
closing price of BroadVision common stock was
$0.[ ] per share.
If you
exercise your subscription rights, you may not revoke the
exercise of your subscription rights even if there is a decline
in BroadVision common stock prior to the expiration date of the
subscription period, and you may be unable to sell any shares
you purchase at a profit.
The public trading market price of BroadVision common stock may
decline after you elect to exercise your subscription rights. If
that occurs, you may have committed to buy shares of common
stock at a price above the prevailing market price and you may
not revoke or change your exercise rights. Moreover, we cannot
assure you that
4
following the exercise of your subscription rights you will be
able to sell your shares of common stock at a price equal to or
greater than the subscription price.
Your
ability to sell shares of BroadVision common stock purchased in
the rights offering may be delayed by the time required to
deliver the stock certificates.
Until shares are delivered upon expiration of the rights
offering, you may not be able to sell the shares of BroadVision
common stock that you purchase in the rights offering.
Certificates representing shares of BroadVision common stock
purchased will be delivered as soon as practicable after
expiration of the rights offering.
You
may not revoke the exercise of your subscription rights even if
we decide to extend the expiration date of the subscription
period.
We may, in our sole discretion, extend the expiration date of
the subscription period. During any potential extension of time,
BroadVision common stock price may decline below the
subscription price and result in a loss on your investment upon
the exercise of rights to acquire shares of BroadVision common
stock. If the expiration date is extended after you send in your
subscription forms and payment, you still may not revoke or
change your exercise of rights.
You
will not receive interest on subscription funds returned to
you.
If we cancel the rights offering, neither we nor the
subscription agent will have any obligation with respect to the
subscription rights except to return, without interest, any
subscription payments to you.
The
subscription rights are not transferable, and there is no market
for the subscription rights.
You may not sell, give away or otherwise transfer your
subscription rights. The subscription rights are only
transferable by operation of law. Because the subscription
rights are non-transferable, there is no market or other means
for you to directly realize any value associated with the
subscription rights. You must exercise your subscription rights
and acquire additional shares of BroadVision common stock to
realize any value.
Because
we may terminate the offering, your participation in the
offering is not assured.
Once you exercise your subscription rights, you may not revoke
the exercise for any reason unless we amend the offering. If we
decide to terminate the offering, we will not have any
obligation with respect to the subscription rights except to
return any subscription payments, without interest.
If you
do not act promptly and follow subscription instructions, your
subscription rights may be rejected.
Stockholders who desire to purchase shares in the rights
offering must act promptly to ensure that all required forms and
payments are actually received by the subscription agent prior
to 5:00 p.m. Pacific Time
on ,
2006, the expiration date of the rights offering. If you fail to
complete and sign the required subscription forms, send an
incorrect payment amount, or otherwise fail to follow the
subscription procedures that apply to your desired transaction,
the subscription agent may, depending on the circumstances,
reject your subscription or accept it to the extent of the
payment received. Neither we nor our subscription agent
undertakes to contact you concerning, or attempt to correct, an
incomplete or incorrect subscription form or payment. We have
the sole discretion to determine whether a subscription exercise
properly follows the subscription procedures.
Risks
related to our business
We
have a history of losses and our future profitability on a
quarterly or annual basis is uncertain, which could have a
harmful effect on our business and the value of BroadVision
common stock.
Since 2000 through December 31, 2005, we have incurred
substantial net operating losses and have not achieved positive
cash flows from operations. For the year ended December 31,
2005 we had a net loss of $39.0 million. As of
December 31, 2005, we had an accumulated deficit of
approximately $1.2 billion.
5
Given our planned operating and capital expenditures, for the
foreseeable future we expect our results of operations to
fluctuate, and during this period we may incur losses
and/or
negative cash flows. If our revenue does not increase or if we
fail to maintain our expenses at an amount less than our
projected revenue, we will not be able to achieve or sustain
operating profitability on a consistent basis, if at all. We are
continuing efforts to reduce and control our expense structure.
We believe strict cost containment and expense reductions are
essential to achieving positive cash flow and profitability. A
number of factors could preclude us from successfully bringing
costs and expenses in line with our revenues, including
unplanned uses of cash, the inability to accurately forecast
business activities and further deterioration of our revenues.
If we are not able to effectively reduce our costs and achieve
an expense structure commensurate with our business activities
and revenues, we may have inadequate levels of cash for
operations or for capital requirements, which could
significantly harm our ability to operate our business.
Our failure to operate profitably or control negative cash flows
on a quarterly or annual basis could harm our business and the
value of BroadVision common stock. If the negative cash flow
continues, our liquidity and ability to operate our business
would be severely and adversely impacted. Additionally, our
ability to raise financial capital may be hindered due to our
operational losses and negative cash flows, reducing our
operating flexibility.
We
face liquidity challenges and may need additional near-term
financing.
We face liquidity challenges. We currently expect to be able to
fund our working capital requirements from our existing cash and
cash equivalents and our anticipated cash flows from operations
and subleases. However, we could experience unforeseen
circumstances, such as an economic downturn, difficulties in
retaining customers and/or key employees due to going concern
issues, or other factors that could increase our use of
available cash and require us to seek additional financing. We
may find it necessary to obtain additional equity or debt
financing due to the factors listed above or in order to support
a more rapid expansion, develop new or enhanced products or
services, respond to competitive pressures, acquire
complementary businesses or technologies or respond to
unanticipated requirements. Our Chairman, Chief Executive
Officer and largest stockholder has committed to provide, upon
our request at any time through December 31, 2006, up to $5
million of working capital support through cash, debt guarantees
or a combination thereof on mutually satisfactory terms.
However, we currently do not have any bank loan agreement or
other similar financing arrangement in place that would entitle
us to borrow additional funds, and there can be no assurance
that we will be able to generate sufficient cash from ongoing
operations, the pending rights offering or from any other source
in order to fund our future working capital requirements.
In addition to this offering, we may seek to raise additional
funds through private or public sales of securities, strategic
relationships, bank debt, financing under leasing arrangements
or otherwise. If additional funds are raised through the
issuance of equity securities, the percentage ownership of our
stockholders will be reduced, stockholders may experience
additional dilution or any equity securities we sell may have
rights, preferences or privileges senior to those of the holders
of our common stock. We expect that obtaining additional
financing on acceptable terms would be difficult, at best. If
adequate funds are not available or are not available on
acceptable terms, we may be unable to pay our debts as they
become due, develop our products, take advantage of future
opportunities or respond to competitive pressures or
unanticipated requirements, which could have a material adverse
effect on our business, financial condition and future operating
results.
Our
management identified a material weakness in the effectiveness
of our internal control over financial reporting as of
December 31, 2005 and we cannot assure you that additional
material weaknesses will not be discovered in the
future.
Our management assessed the effectiveness of our internal
control over financial reporting as of December 31, 2005,
and this assessment identified one material weakness. Further,
we restated our operating results for the year ended
December 31, 2004, due to the subsequent determination that
an embedded derivative existed in our convertible notes that
should have been separately accounted for as a liability.
As of December 31, 2005, we did not have a sufficient
number of experienced personnel in our accounting and finance
organization to facilitate an efficient financial statement
close process and permit the preparation of our financial
statements in accordance with generally accepted accounting
principles. For example, there were a significant number of
adjustments to our financial statements during the course of the
2005 audit, at least one of
6
which was individually material and required us to make the
restatement described above. Our personnel also lacked certain
required skills and competencies to oversee the accounting
operations and perform certain important control functions, such
as the review, periodic inspection and investigation of
transactions of our foreign locations. We consider this to be a
deficiency that is also a material weakness in the operation of
entity-level controls. If we are not successful in remedying the
deficiencies that caused this material weakness, there is more
than a remote likelihood that our quarterly or annual financial
statements could be materially misstated, which could require a
restatement.
As our future staffing is dependent upon filling open positions
and retaining existing employees, we are currently unable to
determine when this material weakness will be fully remediated.
In June 2006 William Meyer resigned as our Chief Financial
Officer, a position Mr. Meyer had held since April 2003. Mr.
Meyers departure compounds our staffing needs and will
increase the time it will take to fully remediate this material
weakness. The market for skilled accounting personnel is
competitive and we may have difficulty in retaining our staff
due to (1) our efforts to restructure our operations by
reducing our workforce and other cost containment activities and
(2) the uncertainty created by the recent execution and
subsequent termination of our merger agreement with an affiliate
of Vector Capital Corporation. Our inability to staff the
department with competent personnel with sufficient training may
affect our internal controls over financial reporting to the
extent that we may not be able to prevent or detect material
misstatements. Inferior internal control could also cause
investors to lose confidence in our reported financial
information, which could have a negative effect on the trading
price of our common stock.
Our
business currently depends on revenue related to our BroadVision
Self-Service Suite, and if the market does not increasingly
accept this product and related products and services, our
revenue may continue to decline.
We generate our revenue from licenses of the BroadVision
Self-Service Suite, including process, commerce, portal and
content management and related products and services. We expect
that these products, and future upgraded versions, will continue
to account for a large portion of our revenue in the foreseeable
future. Our future financial performance will depend on
increasing acceptance of our current product and on the
successful development, introduction and customer acceptance of
new and enhanced versions of our products. If new and future
versions and updates of our products and services do not gain
market acceptance when released commercially, or if we fail to
deliver the product enhancements and complementary third party
products that customers want, demand for our products and
services, and our revenue, may decline.
If we
are unable to keep pace with the rapid technological changes in
online commerce and communication, our products and services may
fail to be competitive.
Our products and services may fail to be competitive if we do
not maintain or exceed the pace of technological developments in
Internet commerce and communication. Failure to be competitive
could cause our revenue to decline. The information services,
software and communications industries are characterized by
rapid technological change, changes in customer requirements,
frequent new product and service introductions and enhancements
and evolving industry standards and practices. The introduction
of products and services embodying new technologies and the
emergence of new industry standards and practices can render
existing products and services obsolete. Our future success will
depend, in part, on our ability to:
|
|
|
|
|
develop leading technologies;
|
|
|
|
enhance our existing products and services;
|
|
|
|
develop new products and services that address the increasingly
sophisticated and varied needs of our prospective
customers; and
|
|
|
|
respond to technological advances and emerging industry
standards and practices on a timely and cost-effective basis.
|
7
Our
sales and product implementation cycles are lengthy and subject
to delay, which make it difficult to predict our quarterly
results.
Our sales and product implementation cycles generally span
months. Delays in customer orders or product implementations,
which are difficult to predict, can affect the timing of revenue
recognition and adversely affect our quarterly operating
results. Licensing our products is often an enterprise-wide
decision by prospective customers. The importance of this
decision requires that we engage in a lengthy sales cycle with
prospective customers. A successful sales cycle may last up to
nine months or longer. Our sales cycle is also affected by a
number of other factors, some of which we have little or no
control over, including the volatility of the overall software
market, the business condition and purchasing cycle of each
prospective customer, and the performance of our technology
partners, systems integrators and resellers. The implementation
of our products can also be time and resource intensive, and
subject to unexpected delays. Delays in either product sales or
implementations could cause our operating results to vary
significantly from quarter to quarter.
Because
our quarterly operating results are volatile and difficult to
predict, our quarterly operating results in one or future
periods are likely to fluctuate significantly, which could cause
our stock price to decline if we fail to meet the expectations
of securities analysts or investors.
Our quarterly operating results have varied significantly in the
past and are likely to continue to vary significantly in the
future. For example, in the quarters ended March 31, 2005,
June 30, 2005 and September 30, 2005, our revenues
declined 22%, 23% and 18%, respectively, as compared to the
previous fiscal year quarters. In the quarters ended
June 30, 2004, September 30, 2004 and
December 31, 2004, our revenues declined 8%, 7% and 15%,
respectively, as compared to the same quarterly periods in the
prior fiscal year. If our revenues, operating results, earnings
or future projections are below the levels expected of
securities analysts or investors, our stock price is likely to
decline.
We expect to continue to experience significant fluctuations in
our results of operations due to a variety of factors, some of
which are outside of our control, including:
|
|
|
|
|
introduction of products and services and enhancements by us and
our competitors;
|
|
|
|
competitive factors that affect our pricing;
|
|
|
|
market acceptance of new products;
|
|
|
|
the mix of products sold by us;
|
|
|
|
changes in our pricing policies or our competitors;
|
|
|
|
changes in our sales incentive plans;
|
|
|
|
the budgeting cycles of our customers;
|
|
|
|
customer order deferrals in anticipation of new products or
enhancements by us or our competitors or because of
macro-economic conditions;
|
|
|
|
nonrenewal of our maintenance agreements, which generally
automatically renew for one-year terms unless earlier terminated
by either party upon
90-days
notice;
|
|
|
|
product life cycles;
|
|
|
|
changes in strategy;
|
|
|
|
seasonal trends;
|
|
|
|
the mix of distribution channels through which our products are
sold;
|
|
|
|
the mix of international and domestic sales;
|
|
|
|
the rate at which new sales people become productive;
|
|
|
|
changes in the level of operating expenses to support projected
growth;
|
8
|
|
|
|
|
increase in the amount of third party products and services that
we use in our products or resell with royalties attached;
|
|
|
|
fluctuations in the recorded value of outstanding common stock
warrants that will be based upon changes to the underlying
market value of BroadVision common stock;
|
|
|
|
the timing of receipt and fulfillment of significant orders; and
|
|
|
|
costs associated with litigation, regulatory compliance and
other corporate events such as operational reorganizations.
|
As a result of these factors, we believe that
quarter-to-quarter
comparisons of our revenue and operating results are not
necessarily meaningful, and that these comparisons are not
accurate indicators of future performance. Because our staffing
and operating expenses are based on anticipated revenue levels,
and because a high percentage of our costs are fixed, small
variations in the timing of the recognition of specific revenue
could cause significant variations in operating results from
quarter to quarter. If we are unable to adjust spending in a
timely manner to compensate for any revenue shortfall, any
significant revenue shortfall would likely have an immediate
negative effect on our operating results. If our operating
results in one or more future quarters fail to meet the
expectations of securities analysts or investors, we would
expect to experience an immediate and significant decline in the
trading price of our stock.
Because
a significant portion of our sales activity occurs at the end of
each fiscal quarter, delays in a relatively small number of
license transactions could adversely affect our quarterly
operating results.
A significant proportion, generally over 40%, of our sales are
concentrated in the last month of each fiscal quarter. Gross
margins are high for our license transactions. Customers and
prospective customers may use these conditions in an attempt to
obtain more favorable terms. While we endeavor to avoid making
concessions that could result in lower margins, the negotiations
often result in delays in closing license transactions. Small
delays in a relatively small number of license transactions
could have a significant impact on our reported operating
results for that quarter.
We
have substantially modified our business and operations and will
need to manage and support these changes effectively in order
for our business plan to succeed.
We substantially expanded then contracted our business and
operations since our inception in 1993. We grew from 652
employees at the end of 1999 to 2,412 employees at the end of
2000 and then reduced our numbers to 1,102 at the end of 2001,
449 at the end of 2002, 367 at the end of 2003 and 337 at the
end of 2004. On June 29, 2005, our Board of Directors
approved a business restructuring plan, which included a
reduction in headcount by an additional 63 employees. On
December 31, 2005, we had 181 employees. As a consequence
of our employee base growing and then contracting so rapidly, we
entered into significant contracts for facilities space for
which we ultimately determined we did not have a future use. We
announced during the third and fourth quarters of 2004 that we
had agreed with the landlords of various facilities to
renegotiate future lease commitments, extinguishing a total of
approximately $155 million of future obligations. The
management of the expansion and later reduction of our
operations has taken a considerable amount of our
managements attention during the past several years. As we
manage our business to introduce and support new products, we
will need to continue to monitor our workforce and make
appropriate changes as necessary. If we are unable to support
past and implement future changes effectively, we may have to
divert additional resources away from executing our business
plan and toward internal administration. If our expenses
significantly outpace our revenues, we may have to make
additional changes to our management systems and our business
plan may not succeed.
Modifications
to our business and operations may not result in a reduced cost
structure as anticipated and may otherwise adversely impact our
productivity.
Since 2000, we have substantially modified our business and
operations in order to reduce our cost structure. These
modifications included closing facilities, reducing liability
for idle lease space and reducing our employee headcount, while
maintaining sales efforts and providing continuing customer
support by reallocating the workload
9
among continuing employees. We may not realize anticipated
reductions in our cost structure, which will delay or prevent us
from achieving sustained profitability. In addition, these
modifications may result in lower revenues as a result of the
decreased headcount in our sales and marketing and professional
services groups, or other adverse impacts on productivity that
we did not anticipate.
We are
dependent on direct sales personnel and third-party distribution
channels to achieve revenue growth.
To date, we have sold our products primarily through our direct
sales force. Our ability to achieve significant revenue growth
in the future largely will depend on our success in recruiting,
training and retaining sufficient direct sales personnel and
establishing and maintaining relationships with distributors,
resellers and systems integrators. Our products and services
require a sophisticated sales effort targeted at the senior
management of our prospective customers. New hires as well as
employees of our distributors, resellers and systems integrators
require training and take time to achieve full productivity. Our
recent hires may not become as productive as necessary, and we
may be unable to hire and retain sufficient numbers of qualified
individuals in the future. We have entered into strategic
alliance agreements with partners, under which partners have
agreed to resell and support our current BroadVision product
suite. These contracts are generally terminable by either party
upon 30 days notice of an uncured material breach or
for convenience upon 90 days notice prior to the end
of any annual term. Termination of any of these alliances could
harm our expected revenues. We may be unable to expand our other
distribution channels, and any expansion may not result in
revenue increases. If we fail to maintain and expand our direct
sales force or other distribution channels, our revenues may not
grow or they may decline.
Failure
to maintain relationships with third-party systems integrators
could harm our ability to achieve our business
plan.
Our relationships with third-party systems integrators who
deploy our products have been a key factor in our overall
business strategy, particularly because many of our current and
prospective customers rely on integrators to develop, deploy and
manage their online marketplaces. Our efforts to manage our
relationships with systems integrators may not succeed, which
could harm our ability to achieve our business plan due to a
variety of factors, including:
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Systems integrators may not view their relationships with us as
valuable to their own businesses. The related arrangements
typically may be terminated by either party with limited notice
and in some cases are not covered by a formal agreement.
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Under our business model, we often rely on our system
integrators employees to perform implementations. If we
fail to work together effectively, or if these parties perform
poorly, our reputation may be harmed and deployment of our
products may be delayed or inadequate.
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Systems integrators may attempt to market their own products and
services rather than ours.
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Our competitors may have stronger relationships with our systems
integrators than us and, as a result, these integrators may
recommend a competitors products and services over ours.
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If we lose our relationships with our systems integrators, we
will not have the personnel necessary to deploy our products
effectively, and we will need to commit significant additional
sales and marketing resources in an effort to reach the markets
and customers served by these parties.
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We may
be unable to manage or grow our international operations, which
could impair our overall growth.
We derive a significant portion of our revenue from our
operations outside North America. In the twelve months ended
December 31, 2005, approximately 43% of our revenues were
derived from international sales. If we are unable to manage or
grow our existing international operations, we may not generate
sufficient revenue required to establish and maintain these
operations, which could slow our overall growth and impair our
operating margins.
10
As we rely heavily on our operations outside of North America,
we are subject to significant risks of doing business
internationally, including:
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unexpected changes in regulatory requirements;
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export controls relating to encryption technology and other
export restrictions;
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tariffs and other trade barriers;
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difficulties in staffing and managing foreign operations;
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political and economic instability;
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fluctuations in currency exchange rates;
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reduced protection for intellectual property rights in some
countries;
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cultural barriers;
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seasonal reductions in business activity during the summer
months in Europe and certain other parts of the world; and
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potentially adverse tax consequences.
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Management of international operations presents special
challenges, particularly at our reduced staffing levels. For
example, in December 2005, an inappropriate transfer of
approximately $60,000 was made from our bank account in Japan to
a consulting services provider affiliated with two officers of
our Japan subsidiary without the approvals required under our
internal control policies. Although this transfer was later
detected, the funds were recaptured and the services of the
Japan subsidiary officers involved were terminated, we face the
risk that other similar misappropriations of assets may occur in
the future.
In additional our international sales growth will be limited if
we are unable to establish additional foreign operations, expand
international sales channel management and support, hire
additional personnel, customize products for local markets and
develop relationships with international service providers,
distributors and system integrators. Even if we are able to
successfully expand our international operations, we may not
succeed in maintaining or expanding international market demand
for our products.
Current
and potential competitors could make it difficult for us to
acquire and retain customers now and in the
future.
The market for our products is intensely competitive. We expect
competition in this market to persist and increase in the
future. If we fail to compete successfully with current or
future competitors, we may be unable to attract and retain
customers. Increased competition could also result in price
reductions for our products and lower profit margins and reduced
market share, any of which could harm our business, results of
operations and financial condition.
Many of our competitors have significantly greater financial,
technical, marketing and other resources, greater name
recognition, a broader range of products and a larger installed
customer base, any of which could provide them with a
significant competitive advantage. In addition, new competitors,
or alliances among existing and future competitors, may emerge
and rapidly gain significant market share. Some of our
competitors, particularly established software vendors, may also
be able to provide customers with products and services
comparable to ours at lower or at aggressively reduced prices in
an effort to increase market share or as part of a broader
software package they are selling to a customer. We may be
unable to match competitors prices or price reductions,
and we may fail to win customers that choose to purchase an
information technology solution as part of a broader software
and services package. As a result, we may be unable to compete
successfully with current or new competitors.
Our
success and competitive position will depend on our ability to
protect our proprietary technology.
Our success and ability to compete are dependent to a
significant degree on our proprietary technology. We hold a U.S.
patent, issued in January 1998, on elements of the BroadVision
platform, which covers electronic
11
commerce operations common in todays web business. We also
hold a U.S. patent, issued in November 1996, acquired as
part of the Interleaf acquisition on the elements of the
extensible electronic document processing system for creating
new classes of active documents. Although we hold these patents,
they may not provide an adequate level of intellectual property
protection. In addition, litigation may be necessary in the
future to enforce our intellectual property rights, to protect
our trade secrets, or to determine the validity and scope of the
proprietary rights of others. It is also possible that third
parties may claim we have infringed their patent, trademark,
copyright or other proprietary rights. Claims may be made for
indemnification resulting from allegations of infringement.
Intellectual property infringement claims may be asserted
against us as a result of the use by third parties of our
products. Claims or litigation, with or without merit, could
result in substantial costs and diversions of resources, either
of which could harm our business.
We also rely on copyright, trademark, service mark, trade secret
laws and contractual restrictions to protect our proprietary
rights in products and services. We have registered
BroadVision, iGuide, BroadVision
Self-Service Suite, BroadVision Process,
BroadVision Commerce, Broadvision
Portal, BroadVision Content and
Interleaf as trademarks in the United States and in
other countries. It is possible that our competitors or other
companies will adopt product names similar to these trademarks,
impeding our ability to build brand identity and possibly
confusing customers.
As a matter of company policy, we enter into confidentiality and
assignment agreements with our employees, consultants and
vendors. We also control access to and distribution of our
software, documents and other proprietary information.
Notwithstanding these precautions, it may be possible for an
unauthorized third party to copy or otherwise obtain and use our
software or other proprietary information or to develop similar
software independently. Policing unauthorized use of our
products will be difficult, particularly because the global
nature of the Internet makes it difficult to control the
ultimate destination or security of software and other
transmitted data. The laws of other countries may afford us
little or no effective protection of our intellectual property.
A
breach of the encryption technology that we use could expose us
to liability and harm our reputation, causing a loss of
customers.
If any breach of the security technology embedded in our
products were to occur, we would be exposed to liability and our
reputation could be harmed, which could cause us to lose
customers. A significant barrier to online commerce and
communication is the secure exchange of valuable and
confidential information over public networks. We rely on
encryption and authentication technology, including Open SSL and
public key cryptography technology featuring the major
encryption algorithms RC2 and MDS, to provide the security and
authentication necessary to effect the secure exchange of
confidential information. Advances in computer capabilities, new
discoveries in the field of cryptography or other events or
developments could cause a breach of the RSA or other algorithms
that we use to protect customer transaction data.
The
loss or malfunction of technology licensed from third parties
could delay the introduction of our products and
services.
We rely in part on technology that we license from third
parties, including relational database management systems from
Oracle and Sybase, Informix object request broker software from
IONA Technologies PLC, and database access technology from Rogue
Wave Software. The loss or malfunction of any of these
technology licenses could harm our business. We integrate or
sublicense this technology with internally developed software to
perform key functions. For example, our products and services
incorporate data encryption and authentication technology
licensed from Open SSL. Third-party technology licenses might
not continue to be available to us on commercially reasonable
terms, or at all. Moreover, the licensed technology may contain
defects that we cannot control. Problems with our technology
licenses could cause delays in introducing our products or
services until equivalent technology, if available, is
identified, licensed and integrated. Delays in introducing our
products and services could adversely affect our results of
operations.
12
Our
executive officers, key employees and highly skilled technical
and managerial personnel are critical to our business, and they
may not remain with us in the future.
Our performance substantially depends on the performance of our
executive officers and key employees. We also rely on our
ability to retain and motivate qualified personnel, especially
our management and highly skilled development teams. The loss of
the services of any of our executive officers or key employees,
particularly our founder and Chief Executive Officer,
Dr. Pehong Chen, could cause us to incur increased
operating expenses and divert senior management resources in
searching for replacements. The loss of their services also
could harm our reputation if our customers were to become
concerned about our future operations. We do not carry key
person life insurance policies on any of our employees.
Our future success also depends on our continuing ability to
identify, hire, train and retain other highly qualified
technical and managerial personnel. Competition for these
personnel is intense, especially in the Internet industry. We
have in the past experienced, and may continue to experience,
difficulty in hiring and retaining sufficient numbers of highly
skilled employees. The significant downturn in our business
environment has had and may continue to have a negative impact
on our operations and, together with the uncertainty created by
the recent execution and subsequent termination of our merger
agreement with an affiliate of Vector Capital Corporation. We
have restructured our operations by reducing our workforce and
implementing other cost containment activities. These actions
could lead to disruptions in our business, reduced employee
morale and productivity, increased attrition, and problems with
retaining existing and recruiting future employees.
Limitations
on the online collection of profile information could impair the
effectiveness of our products.
Online users resistance to providing personal data, and
laws and regulations prohibiting use of personal data gathered
online without express consent or requiring businesses to notify
their web site visitors of the possible dissemination of their
personal data, could limit the effectiveness of our products.
This in turn could adversely affect our sales and results of
operations.
One of the principal features of our products is the ability to
develop and maintain profiles of online users to assist business
managers in determining the nature of the content to be provided
to these online users. Typically, profile information is
captured when consumers, business customers and employees visit
a web site and volunteer information in response to survey
questions concerning their backgrounds, interests and
preferences. Profiles can be augmented over time through the
subsequent collection of usage data. Although our products are
designed to enable the development of applications that permit
web site visitors to prevent the distribution of any of their
personal data beyond that specific web site, privacy concerns
may nevertheless cause visitors to resist providing the personal
data necessary to support this profiling capability. The mere
perception by prospective customers that substantial security
and privacy concerns exist among online users, whether or not
valid, may indirectly inhibit market acceptance of our products.
In addition, new laws and regulations could heighten privacy
concerns by requiring businesses to notify web site users that
the data captured from them while online may be used by
marketing entities to direct product messages to them. We are
subject to increasing regulation at the federal and state levels
relating to online privacy and the use of personal user
information. Several states have proposed legislation that would
limit the uses of personal user information gathered online or
require online services to establish privacy policies. In
addition, the U.S. Federal Trade Commission, or FTC, has
urged Congress to adopt legislation regarding the collection and
use of personal identifying information obtained from
individuals when accessing web sites. The FTC has settled
several proceedings resulting in consent decrees in which
Internet companies have been required to establish programs
regarding the manner in which personal information is collected
from users and provided to third parties. We could become a
party to a similar enforcement proceeding. These regulatory and
enforcement efforts could also harm our customers ability
to collect demographic and personal information from users,
which could impair the effectiveness of our products.
13
We may
not have adequate
back-up
systems, and natural or manmade disasters could damage our
operations, reduce our revenue and lead to a loss of
customers.
We do not have fully redundant systems for service at an
alternate site. A disaster could severely harm our business
because our service could be interrupted for an indeterminate
length of time. Our operations depend upon our ability to
maintain and protect our computer systems at our facility in
Redwood City, California, which reside on or near known
earthquake fault zones. Although these systems are designed to
be fault tolerant, they are vulnerable to damage from fire,
floods, earthquakes, power loss, acts of terrorism,
telecommunications failures and similar events. In addition, our
facilities in California could be subject to electrical
blackouts if California faces another power shortage similar to
that of 2001. Although we do have a backup generator that would
maintain critical operations, this generator could fail. We also
have significantly reduced our workforce in a short period of
time, which has placed different requirements on our systems and
has caused us to lose personnel knowledgeable about our systems,
both of which could make it more difficult to quickly resolve
system disruptions. Disruptions in our internal business
operations could harm our business by resulting in delays,
disruption of our customers business, loss of data, and
loss of customer confidence.
Risks
related to BroadVision common stock
BroadVision
common stock was delisted from the NASDAQ National Market, which
may result in a suppressed common stock trading price, reduced
liquidity for our stockholders and confusion among
investors.
BroadVision common stock was delisted from the NASDAQ National
Market on March 8, 2006. Unless and until BroadVision
common stock is relisted on NASDAQ, BroadVision common stock is
expected to be quoted only on the Pink Sheets, and possibly on
the
Over-The-Counter
market. The quotation of BroadVision common stock on the Pink
Sheets may reduce the price of BroadVision common stock and the
level of liquidity available to our stockholders. In addition,
the quotation of BroadVision common stock on the Pink Sheets may
materially and adversely affect our access to the capital
markets, and any limitation on liquidity or reduction in the
price of BroadVision common stock could materially and adversely
affect our ability to raise capital through alternative
financing sources on terms acceptable to us or at all. Stocks
that are quoted on the Pink Sheets are no longer eligible for
margin loans, and a company quoted on the Pink Sheets cannot
avail itself of federal preemption of state securities (or
blue sky) laws, which adds substantial compliance
costs to securities issuances, including pursuant to employee
option plans, stock purchase plans and private or public
offerings of securities such as the rights offering. The
delisting of BroadVision common stock from the NASDAQ National
Market and its quotation on the Pink Sheets may also result in
other negative implications, including the potential loss of
confidence by vendors, customers and employees, the loss of
institutional investor interest and fewer business development
opportunities.
Our
stock price has been highly volatile.
The trading price of BroadVision common stock has been highly
volatile. For example, the trading price of BroadVision common
stock has ranged from $0.32 per share to $9.05 per
share between January 1, 2004 and
[ ],
2006. On [ ], 2006 the closing price of
BroadVision common stock was $0.[ ] per
share. Our stock price is subject to wide fluctuations in
response to a variety of factors, including:
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quarterly variations in operating results;
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announcements of technological innovations;
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announcements of new software or services by us or our
competitors;
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changes in financial estimates by securities analysts;
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general economic conditions; or
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other events or factors that are beyond our control.
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In addition, the stock market has experienced significant price
and volume fluctuations that have particularly affected the
trading prices of equity securities of many technology
companies. These fluctuations have often been
14
unrelated or disproportionate to the operating performance of
these companies. Any negative change in the publics
perception of the prospects of Internet or electronic commerce
companies could further depress our stock price regardless of
our results. Other broad market fluctuations may decrease the
trading price of BroadVision common stock. In the past,
following declines in the market price of a companys
securities, securities class action litigation, such as the
class action lawsuits filed against us and certain of our
officers and directors in early 2001, has often been instituted
against that company. Litigation could result in substantial
costs and a diversion of managements attention and
resources.
USE OF
PROCEEDS
The net proceeds to us from this rights offering will depend on
the number of shares that are purchased. If all of the
subscription rights offered by this prospectus are exercised,
then we will receive approximately $80.0 million after
deducting estimated offering expenses payable by us. We
currently intend to use the net proceeds from the rights
offering for general working capital purposes.
PRICE
RANGE OF COMMON STOCK
On March 8, 2006, BroadVision common stock was delisted
from the NASDAQ National Market and began trading only on the
Pink Sheetsunder the symbol BVSN. The following
table shows high and low sale prices per share of BroadVision
common stock as reported on the NASDAQ National Market and the
Pink
Sheets®,
as applicable:
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2006 Fiscal Year
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High
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Low
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Third Quarter
(through ,
2006)
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$
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[ ]
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$
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[ ]
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Second Quarter
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$
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0.52
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$
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0.44
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First Quarter
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$
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0.65
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$
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0.42
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2005 Fiscal Year
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High
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Low
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Fourth Quarter
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$
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0.83
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$
|
0.32
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Third Quarter
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1.42
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0.81
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Second Quarter
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1.94
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|
1.06
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First Quarter
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2.84
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|
1.62
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2004 Fiscal Year
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High
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Low
|
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Fourth Quarter
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$
|
3.20
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|
|
$
|
2.05
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Third Quarter
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|
4.35
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|
2.10
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Second Quarter
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6.87
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|
2.92
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First Quarter
|
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|
9.05
|
|
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4.28
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2003 Fiscal Year
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High
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Low
|
|
|
Fourth Quarter
|
|
$
|
5.89
|
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$
|
4.60
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Third Quarter
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|
7.22
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4.50
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Second Quarter
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7.95
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3.66
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First Quarter
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4.80
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3.43
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As of [ ], 2006, there were
holders of record of
BroadVision common stock. On [ ], 2006, the
last sale price reported on the Pink Sheetsfor BroadVision
common stock was $0. per share.
DIVIDEND
POLICY
We have never declared or paid any cash dividends on BroadVision
common stock. In addition, the terms of our existing loans, as
well as our Silicon Valley Bank Commercial Credit facility,
restrict our ability to pay dividends. We currently intend to
retain any future earnings to support operations and to finance
the growth and
15
development of our business, and we do not anticipate paying any
cash dividends on BroadVision common stock in the foreseeable
future.
FORWARD-LOOKING
STATEMENTS AND INDUSTRY DATA
This prospectus, including particularly the sections entitled
Prospectus Summary, Risk Factors,
Managements Discussion and Analysis of Financial
Condition and Results of Operations and
Business, contains forward-looking statements. In
some cases, you can identify forward-looking statements by words
such as may, will, should,
expects, intends, plans,
anticipates, believes,
estimates, predicts,
potential or similar terms. These statements relate
to future events or our future financial performance and involve
known and unknown risks, uncertainties and other factors that
may cause our actual results, levels of activity, performance or
achievements to differ materially from any future results,
levels of activity, performance or achievements expressed or
implied by these forward-looking statements. These risks and
other factors include those listed under Risk
Factors and elsewhere in this prospectus. These statements
are only predictions based on our current expectations and
projections about future events, and we cannot guarantee future
results, levels of activity, performance or achievements.
Information regarding market and industry statistics contained
in the Prospectus Summary and Business
sections of this prospectus is included based on information
available to us that we believe is accurate. It is generally
based on academic and other publications that are not produced
for purposes of securities offerings or economic analysis.
16
THE
RIGHTS OFFERING
Before exercising any subscription rights, you should read
carefully the information set forth under Risk
Factors on page 4.
Background
On November 18, 2005, our Chairman, Chief Executive
Officer, President, interim Chief Financial Officer and largest
stockholder, Dr. Pehong Chen, acquired through Honu all of
the Notes. Including accrued interest, the Notes represented
approximately $15.5 million in debt obligations as of
December 20, 2005. In order to relieve BroadVision from the
liquidity challenges presented by the Notes, Dr. Chen
agreed to cancel all amounts owed under the Notes in exchange
for 34,500,000 shares of BroadVision common stock at an
effective price per share of $0.45, representing a 25% discount
to the December 20, 2005 closing price of BroadVision
common stock of $0.60 per share. We refer to this as the
Note Conversion. In On March 8, 2006 we
cancelled the Notes and issued 34,500,000 new shares of common
stock to Honu. Because of the highly dilutive nature of the Note
Conversion, our primary purpose for the rights offering is to
allow the holders of BroadVision common stock at the time of the
Note Conversion an opportunity to further invest in BroadVision
in order to maintain their proportionate interest in BroadVision
common stock, at the same price per share as the conversion
price afforded to Dr. Chen in the Note Conversion.
177,890,071 shares of BroadVision common stock equals the
aggregate number of shares that would have to be acquired in the
aggregate by our stockholders and eligible warrantholders in
order for our stockholders and eligible warrantholders to
maintain their proportionate interest in BroadVision after the
Note Conversion. On March 8, 2006, Dr. Chen
waived any right to participate in the rights offering.
References herein to Dr. Chen include references to Honu.
The
subscription rights
We will distribute to each holder of BroadVision common stock,
and certain holders of warrants exercisable for BroadVision
common stock, on the record date, December 20, 2005, at no
charge, one non-transferable subscription right for each share
of BroadVision common stock owned (or underlying eligible
warrants held) on the record date. If all subscription rights
are exercised, we will sell a total of approximately
177,890,071 shares of BroadVision common stock. The
subscription rights will be evidenced by non-transferable
subscription rights certificates. Although we will distribute
subscription rights to each holder of BroadVision common stock
(and eligible warrantholder) as of the record date,
Dr. Chen, on behalf of himself and his affiliates, has
waived any subscription privileges in order to enhance the
subscription privileges of our other eligible participants.
Each subscription right will allow you to purchase
5.87235 shares of BroadVision common stock, rounded down to
the nearest whole number, at the subscription price of
$0.45 per share. If you elect to exercise your basic
subscription privilege in full, you will also be entitled to
subscribe, at the subscription price, for additional shares of
BroadVision common stock in connection with your
over-subscription privilege to the extent that other eligible
participants do not exercise their basic subscription privileges
in full. If the number of shares available after satisfaction of
all basic subscriptions is insufficient to satisfy fully all
elections to exercise the over-subscription privilege, we will
allocate the excess shares pro rata among those
over-subscribing. We will base the pro rata allocation on the
number of shares subscribed for pursuant to the basic
subscription privilege. The opportunity to exercise the
over-subscription privilege is available to all subscription
rights holders on the same terms.
If you hold your shares in a brokerage account or by a custodian
bank or other nominee, you will not receive a subscription
rights certificate, and your subscription rights must be
exercised through the broker, custodian bank or other nominee.
The following describes the rights offering in general and
assumes (unless specifically provided otherwise) that you are a
record holder of BroadVision common stock (or the holder of a
warrant that, pursuant to its terms, affords you the right to
participate in this rights offering). If you hold your shares in
a brokerage account or by a custodian bank or other nominee,
please contact your broker, custodian bank or other nominee to
participate in the rights offering.
17
If you hold your shares directly, you will receive a
non-transferable subscription rights certificate. As a holder of
subscription rights you will be entitled to two subscription
privileges: (1) a basic subscription privilege and
(2) an over-subscription privilege. These privileges are
described below.
We will not issue fractional shares in the rights offering, but
rather will round down any fractional shares to the nearest
whole share. For example, if you exercise 100 subscription
rights, you will receive 587 shares of BroadVision common
stock, instead of the 587.235 shares of BroadVision common
stock you would have received without rounding.
Your purchase of shares of BroadVision common stock pursuant to
the rights offering is not conditioned upon the subscription of
any minimum number of shares by you and the other holders of the
subscription rights.
Before exercising any subscription rights, you should read
the information set forth under Risk Factors
beginning on page 4 carefully.
Expiration
date; amendments and termination
You may exercise the basic subscription privilege and the
over-subscription privilege at any time before 5:00 p.m.
Pacific Time on
[ ],
2006, the expiration date for the rights offering. We may, in
our sole discretion, extend the time for exercising the
subscription rights. If the commencement of the rights offering
is delayed for a period of time, the expiration date of the
rights offering will be similarly extended. If we elect to
extend the date the subscription rights expire, we will issue a
press release announcing the extension before the first Pink
Sheets®
trading day after the most recently announced expiration date.
We reserve the right, in our sole discretion, to amend,
terminate or modify the terms of the rights offering. If we
terminate the rights offering, all affected subscription rights
will expire without value and we will as soon as practicable
return all of your subscription payments to you, without
interest or deduction.
If you do not exercise your subscription rights before the time
they expire, then your subscription rights will be null and
void. We will not be obligated to honor your exercise of
subscription rights if the subscription agent receives the
documents relating to your exercise after the time they expire,
regardless of when you transmitted the documents, except when
you have timely transmitted the documents pursuant to the
guaranteed delivery procedures described below.
Subscription
rights
Your subscription rights entitle you to the basic subscription
privilege and the over-subscription privilege.
Basic Subscription Privilege. With the basic
subscription privilege, you may purchase 5.87235 shares of
BroadVision common stock, rounded down in the aggregate to the
nearest whole number, per subscription right, upon delivery of
the required documents and payment of the subscription price of
$0.45 per share, before the time the subscription rights
expire. You are not required to exercise all of your
subscription rights unless you wish to purchase shares under
your over-subscription privilege. We will deliver to those who
purchase shares in the rights offering certificates representing
the shares purchased with a holders basic subscription
privilege as soon as practicable after the rights offering has
expired.
Over-Subscription Privilege. In addition to
your basic subscription privilege, you may subscribe for
additional shares of BroadVision common stock, upon delivery of
the required documents and payment of the subscription price of
$0.45 per share before the time the subscription rights
expire, if you exercised your basic subscription privilege in
full and other holders of subscription rights do not exercise
their basic subscription privileges in full.
Pro Rata Allocation. If there are not enough
shares to satisfy all subscriptions pursuant to the exercise of
the over-subscription privilege, we will allocate the remaining
shares pro rata (subject to the elimination of fractional
shares) among those over-subscribing. Pro rata means in
proportion to the number of shares you and the other holders
have purchased by exercising the basic subscription privileges.
If there is a pro rata allocation of the remaining shares and
the pro-ration results in the allocation to you of a greater
number of shares than you subscribed for pursuant to the
over-subscription privilege, then we will allocate to you only
the number of shares for which you
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subscribed. We will allocate the remaining shares among all
other holders exercising their over-subscription privilege.
Full Exercise of the Basic Subscription
Privilege. You may exercise the over-subscription
privilege only if you exercise your basic subscription privilege
in full. To determine if you have fully exercised your basic
subscription privilege, we will consider only the basic
subscription privileges held by you in the same capacity. For
example, suppose you were granted subscription rights for shares
of BroadVision common stock you own individually and shares of
BroadVision common stock you own collectively with your spouse.
If you wish to exercise your over-subscription privilege with
respect to the subscription rights you own individually, but not
with respect to subscription rights you own collectively with
your spouse, you only need to exercise your basic subscription
privilege with respect to your individually owned subscription
rights. You do not have to subscribe for any shares under the
basic subscription privilege owned collectively with your spouse
to exercise your individual over-subscription privilege.
When you complete the portion of the subscription rights
certificate to exercise your over-subscription privilege, you
will be representing and certifying that you have fully
exercised your basic subscription privilege as to shares of
BroadVision common stock you hold in that capacity. You must
exercise your over-subscription privilege at the same time you
exercise your basic subscription privilege in full.
If you own your shares of BroadVision common stock through your
bank, broker or other nominee holder who will exercise your
over-subscription privilege on your behalf, the nominee holder
will be required to certify to us and the subscription agent:
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the number of shares held on the record date on your behalf;
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the number of subscription rights you exercised under your basic
subscription privilege;
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that your entire basic subscription privilege held in the same
capacity has been exercised in full; and
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the number of shares of common stock you subscribed for pursuant
to the over-subscription privilege.
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Your nominee holder must also disclose to us certain other
information received from you.
If you exercise fewer than all of the subscription rights
evidenced by your subscription rights certificate by so
indicating on your subscription rights certificate, the
subscription agent will, if you so request, issue to you a new
rights certificate evidencing the unexercised subscription
rights. A new subscription rights certificate will be issued to
you according to your instructions upon the partial exercise of
subscription rights only if the subscription agent receives a
properly endorsed subscription rights certificate no later than
the fifth business day prior to the expiration date of the
rights offering. After that date no new subscription rights
certificates will be issued. Accordingly, after such date if you
exercise less than all of your subscription rights you will lose
the power to exercise your remaining subscription rights.
Return of Excess Payment. If you exercised
your over-subscription privilege and are allocated less than all
of the shares of BroadVision common stock for which you wished
to subscribed, your excess payment for shares that were not
allocated to you will be returned to you by mail, without
interest or deduction, as soon as practicable after the
expiration date of the rights offering. We will deliver to the
record holders who purchase shares in the rights offering
certificates representing the shares of BroadVision common stock
that were purchased as soon as practicable, but in no event more
than ten business days, after the expiration date of the
rights offering and after all pro rata allocations and
adjustments have been completed.
Transferability of Subscription Rights. You
may not transfer your subscription rights. Only you may exercise
your subscription rights.
Subscription Price. To exercise your
subscription rights, you must pay in cash the subscription price
of $0.45 per share of BroadVision common stock.
Record
date
The record date for the rights offering is December 20,
2005.
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Subscription
agent
We have appointed Computershare Trust Company, Inc. as
subscription agent for the rights offering. We will pay the fees
and expenses of the subscription agent. We also have agreed to
indemnify the subscription agent from certain liabilities that
it may incur in connection with the rights offering.
Computershares telephone number is (800) 962-4284 x4732.
Exercise
of subscription rights
You may exercise your subscription rights by delivering the
following to the subscription agent at or before 5:00 p.m.
Pacific Time on
[ ],
2006, the expiration date of the rights offering:
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your properly completed and executed subscription rights
certificate evidencing those subscription rights with any
required signature guarantees or other supplemental
documentation; and
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your payment in full of the subscription price for each share of
BroadVision common stock subscribed for under your basic
subscription privilege and over-subscription privilege.
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If you are a beneficial owner of shares of BroadVision common
stock whose shares are registered in the name of a broker,
custodian bank or other nominee, you should instruct your
broker, custodian bank or other nominee to exercise your
subscription rights and deliver all documents and payment on
your behalf prior to 5:00 p.m. Pacific Time on
[ ],
2006, the expiration date of the rights offering.
Your subscription rights will not be considered exercised unless
the subscription agent receives from you, your broker, custodian
or nominee, as the case may be, all of the required documents
and your full subscription price payment prior to 5:00 p.m.
Pacific Time on
[ ],
2006, the expiration date of the rights offering.
Once you exercise your subscription rights, you cannot revoke
your subscription. In order to exercise your subscription
rights, you must exercise them before they expire.
Method of
payment
Your payment of the subscription price must be made in
U.S. dollars for the full number of shares of BroadVision
common stock for which you are subscribing by either:
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check or bank draft drawn upon a U.S. bank or postal,
telegraphic or express money order payable to Computershare, as
subscription agent; or
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wire transfer of immediately available funds to the account
maintained by the subscription agent for such purpose at
Colorado Business Bank, 15710 W Colfax Avenue, Golden, Colorado
80401 (marked: BroadVision, Inc. Subscription).
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Receipt
of Payment
Your payment of the subscription price will be deemed to have
been received by the subscription agent only upon:
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clearance of any uncertified check;
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receipt by the subscription agent of any certified check or bank
draft drawn upon a U.S. bank or any postal, telegraphic or
express money order; or
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receipt of collected funds in the subscription agents
account designated above.
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Clearance
of uncertified checks
You should note that funds paid by uncertified personal checks
may take at least five business days to clear. If you wish to
pay the subscription price by an uncertified personal check, we
urge you to make payment sufficiently in advance of the time the
subscription rights expire to ensure that your payment is
received and clears by that time. We urge you to consider using
a certified or cashiers check, money order or wire
transfer of funds to avoid missing the opportunity to exercise
your subscription rights.
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Delivery
of subscription materials and payment
You should deliver the subscription rights certificate and
payment of the subscription price, as well as any Nominee Holder
Certifications, Notices of Guaranteed Delivery and DTC
Participant Over-Subscription Forms,
if by mail, hand or overnight courier to:
Computershare Trust Company, Inc.
By mail:
P. O. Box 1596
Denver, Colorado 80201
By hand:
350 Indiana Street, Suite 800
Golden, Colorado 80401
Attn: John Harmann
You may call the subscription agent at (800) 962-4284 x4732.
Your delivery to another address or by any method other than as
set forth above will not constitute valid delivery.
Calculation
of subscription rights exercised
If you do not indicate the number of subscription rights being
exercised, or do not forward full payment of the total
subscription price for the number of subscription rights that
you indicate are being exercised, then you will be deemed to
have exercised the basic subscription privilege with respect to
the maximum number of subscription rights that may be exercised
for the aggregate subscription price payment you delivered to
the subscription agent. If your aggregate subscription price
payment is greater than the amount you owe for your
subscription, you will be deemed to have exercised the full
basic subscription privilege and the over-subscription privilege
to purchase the maximum number of shares of BroadVision common
stock with your overpayment. If we do not apply your full
subscription price payment to your purchase of shares of
BroadVision common stock, we will return the excess amount to
you by mail without interest or deduction as soon as
practicable, but in no event more than 10 business days,
after the expiration date of the rights offering.
Your
funds will be held by the subscription agent until shares of
BroadVision common stock are issued
The subscription agent will hold your payment of the
subscription price in a segregated account with other payments
received from holders of subscription rights until we issue to
you your shares of BroadVision common stock upon completion of
the rights offering.
If you exercised your over-subscription privilege and are
allocated less than all of the shares of BroadVision common
stock for which you wished to subscribe, the excess funds you
paid for shares of BroadVision common stock that are not
allocated to you will be returned by mail without interest or
deduction as soon as practicable, but in no event more than
10 business days, after the expiration date of the
subscription rights.
Medallion
guarantee may be required
Your signature on each subscription rights certificate must be
guaranteed by an eligible institution (a member firm of a
registered national securities exchange or a member of the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company having an office or correspondent in the
United States), subject to standards and procedures adopted by
the subscription agent, unless
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your subscription rights certificate provides that the shares of
BroadVision common stock you subscribed for are to be delivered
to you as record holder of those subscription rights; or
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you are an eligible institution.
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Notice to
beneficial holders
If you are a broker, a trustee or a depositary for securities
that held shares of BroadVision common stock for the account of
others as of the record date of December 20, 2005 (a
nominee record holder), you should notify the
respective beneficial owners of such shares of the subscription
rights as soon as possible to find out such beneficial
owners intentions with respect to exercising their
subscription rights. You should obtain instructions from the
beneficial owner with respect to the subscription rights, as set
forth in the instructions we have provided to you for your
distribution to beneficial owners. If the beneficial owner so
instructs, you should complete the appropriate subscription
rights certificates and submit them to the subscription agent
with the proper payment. If you hold shares of BroadVision
common stock for the account(s) of more than one beneficial
owner, you may exercise the number of subscription rights to
which all such beneficial owners in the aggregate otherwise
would have been entitled had they been direct record holders of
BroadVision common stock on the record date, provided that you,
as a nominee record holder, make a proper showing to the
subscription agent by submitting the form entitled Nominee
Holder Certification that we will provide to you with your
rights offering materials. If you did not receive this form, you
should contact the subscription agent to request a copy.
Beneficial
owners
If you are a beneficial owner of shares of BroadVision common
stock or will receive your subscription rights through a broker,
custodian bank or other nominee, we will ask your broker,
custodian bank or other nominee to notify you of the rights
offering. If you wish to exercise your subscription rights, you
will need to have your broker, custodian bank or other nominee
act for you. If you hold certificates of BroadVision common
stock directly and would prefer to have your broker, custodian
bank or other nominee act for you, you should contact your
nominee and request it to effect the transactions for you. To
indicate your decision with respect to your subscription rights,
you should complete and return to your broker, custodian bank or
other nominee the form entitled Beneficial Owner Election
Form. You should receive this form from your broker,
custodian bank or other nominee with the other rights offering
materials. If you wish to obtain a separate subscription rights
certificate, you should contact the nominee as soon as possible
and request that a separate subscription rights certificate be
issued to you. You should contact your broker, custodian bank or
other nominee if you do not receive this form, but you believe
you are entitled to participate in the rights offering. We are
not responsible if you do not receive the form from your broker,
custodian bank or nominee or if you receive it without
sufficient time to respond.
Instructions
for completing your subscription rights certificate
You should read and follow the instructions accompanying the
subscription rights certificates carefully. If you want to
exercise your subscription rights, you must send your
subscription rights certificates to the subscription agent.
You should not send the subscription rights certificates to
BroadVision. We can not guarantee that any subscription
rights certificates sent to BroadVision will be forwarded to the
subscription agent.
You are responsible for the method of delivery of your
subscription rights certificate(s) with your subscription price
payment to the subscription agent. If you send your
subscription rights certificate(s) and subscription price
payment by mail, we recommend that you send them by registered
mail, properly insured, with return receipt requested. You
should allow a sufficient number of days to ensure delivery to
the subscription agent and clearance of payment prior to the
time the subscription rights expire. Because uncertified
personal checks may take at least five business days to clear,
we strongly urge you to pay, or arrange for payment, by means of
certified or cashiers check, money order or wire transfer
of funds.
Determinations
regarding the exercise of your subscription rights
We will decide all questions concerning the timeliness,
validity, form and eligibility of your exercise of subscription
rights. Our decisions will be final and binding. We, in our sole
discretion, may waive any defect or irregularity, or permit a
defect or irregularity to be corrected within such time as we
may determine. We will not be required to make uniform
determinations in all cases. We may reject the exercise of any
of your subscription rights because of any defect or
irregularity. Your subscription will not be deemed to have been
received or accepted until all irregularities have been waived
by us or cured by you within such time as we decide, in our sole
discretion.
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Neither we nor the subscription agent will be under any duty to
notify you of a defect or irregularity in connection with your
submission of subscription rights certificates. We will not be
liable for failing to give you such notice. We reserve the right
to reject your exercise of subscription rights if your exercise
is not in accordance with the terms of the rights offering or in
proper form. We will also not accept your exercise of
subscription rights if our issuance of shares of BroadVision
common stock pursuant to your exercise could be deemed unlawful
or materially burdensome.
Regulatory
limitation
We will not be required to issue shares of BroadVision common
stock pursuant to the rights offering to you if, in our opinion,
you would be required to obtain prior clearance or approval from
any state or federal regulatory authorities to own or control
such shares if, at the time the subscription rights expire, you
have not obtained such clearance or approval.
Guaranteed
delivery procedures
If you wish to exercise your subscription rights, but you do not
have sufficient time to deliver the subscription rights
certificates evidencing your subscription rights to the
subscription agent on or before the time the subscription rights
expire, you may exercise your subscription rights by the
following guaranteed delivery procedures:
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deliver to the subscription agent on or prior to the rights
offering expiration date your subscription price payment in full
for each share of BroadVision common stock you subscribed for
under your basic subscription privilege and your
over-subscription privilege (in the manner set forth in
Exercise of Subscription Rights
beginning on page 19);
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deliver to the subscription agent on or prior to the rights
offering expiration date the form entitled Notice of
Guaranteed Delivery, substantially in the form provided
with the Instructions as to Use of BroadVision, Inc.
Subscription Rights Certificates distributed with your
subscription rights certificates; and
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deliver the properly completed subscription rights certificate
evidencing the subscription rights being exercised and the
related nominee holder certification, if applicable, with any
required signature guarantee, to the subscription agent within
three Pink
Sheets®
trading days following the date the Notice of Guaranteed
Delivery was delivered to the subscription agent.
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Your Notice of Guaranteed Delivery must be substantially in the
form provided with the Instructions as to Use of BroadVision,
Inc. Subscription Rights Certificates distributed to you with
your subscription rights certificate. Your Notice of Guaranteed
Delivery must come from an eligible institution (a member firm
of a registered national securities exchange or a member of the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company having an office or correspondent in the
United States).
In your Notice of Guaranteed Delivery you must state:
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your name;
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the number of subscription rights represented by your
subscription rights certificates, the number of shares of
BroadVision common stock you are subscribing for pursuant to the
basic subscription privilege and the number of the shares of
BroadVision common stock, if any, you are subscribing for
pursuant to the over-subscription privilege; and
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your guarantee that you will deliver to the subscription agent
any subscription rights certificates evidencing the subscription
rights you are exercising within three Pink
Sheets®
trading days following the date the subscription agent receives
your Notice of Guaranteed Delivery.
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You may deliver the Notice of Guaranteed Delivery to the
subscription agent in the same manner as the subscription rights
certificate at the address set forth in
Delivery of Subscription Materials and
Payment beginning on page 20. You may alternatively
transmit the Notice of Guaranteed Delivery to the subscription
agent by facsimile transmission at (303) 262-0606.
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The subscription agent will send you additional copies of the
form of Notice of Guaranteed Delivery if you need them. Please
call the subscription agent at (800) 962-4284 to request any
copies of the form of Notice of Guaranteed Delivery.
Questions
about exercising subscription rights
You may direct any questions or require assistance regarding the
method of exercising your subscription rights, additional copies
of this prospectus, the Instructions as to the Use of
BroadVision, Inc. Subscription Rights Certificates, the Nominee
Holder Certification, the Notice of Guaranteed Delivery or other
subscription documents referred to herein, to Computershare at
the following telephone number and address.
350 Indiana Street, Suite 800
Golden, Colorado 80401
Attn: John Harmann
(800) 962-4284 x4732
No
revocation
Once you have exercised your basic subscription privilege
and/or
over-subscription privilege, you may not revoke your exercise.
Subscription rights not exercised prior to the expiration date
of the rights offering will expire and will have no value.
Procedures
for DTC participants
We expect that your exercise of your basic subscription
privilege and your over-subscription privilege may be made
through the facilities of The Depository Trust Company
(DTC). If your subscription rights are held of
record through DTC, you may exercise your basic subscription
privilege and your over-subscription privilege by instructing
DTC to transfer your subscription rights from your account to
the account of the subscription agent, together with
certification as to the aggregate number of subscription rights
you are exercising and the number of shares of BroadVision
common stock you are subscribing for under your basic
subscription privilege and your over-subscription privilege, if
any, and your subscription price payment for each share of
BroadVision common stock that you subscribed for pursuant to
your basic subscription privilege and your over-subscription
privilege.
Determination
of subscription price
Our board of directors chose the $0.45 per share
subscription price in order to provide you with the opportunity
to acquire shares of BroadVision common stock at the same price
afforded to Dr. Chen in connection with the
Note Conversion.
The $0.45 per share subscription price should not be
considered an indication of the actual value of BroadVision or
of BroadVision common stock. We cannot assure you that the
market price of BroadVision common stock will not decline during
or after the rights offering. We also cannot assure you that you
will be able to sell shares of common stock purchased during the
rights offering at a price equal to or greater than
$0.45 per share. We urge you to obtain a current quote for
BroadVision common stock before exercising your subscription
rights. On [ ], 2006, the closing price of
BroadVision common stock was $0. per
share. BroadVision common stock is traded on the Pink
Sheets®
under the symbol BVSN.
No
recommendations to subscription rights holders
An investment in shares of BroadVision common stock must be made
according to each investors evaluation of its own best
interests and after considering all of the information in this
prospectus, including the Risk Factors section of
this prospectus. None of our board of directors, our officers or
any other person are making any recommendations as to whether or
not you should exercise your subscription rights. You should
make your decision based on your own assessment of your best
interests.
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Non-U.S. and
certain other stockholders
The subscription agent will mail subscription certificates to
you if you are a rights holder whose address is outside the
United States or if you have an army post office or a fleet post
office address. To exercise your subscription rights, you must
notify the subscription agent on or prior to 5:00 p.m.
Pacific Time on
[ ],
2006, and take all other steps that are necessary to exercise
your subscription rights, on or prior to that time. If you do
not follow these procedures prior to the expiration of the
rights offering, your subscription rights will expire.
Issuance
of common stock
The subscription agent will issue to you certificates
representing shares of BroadVision common stock you purchase
pursuant to the rights offering as soon as practicable after the
time the subscription rights expire.
Your payment of the subscription price will be retained by the
subscription agent, and will not be delivered to us, until your
subscription is accepted and you are issued your stock
certificates. We will not pay you any interest on funds paid to
the subscription agent, regardless of whether such funds are
applied to the subscription price or returned to you. You will
have no rights as a stockholder of BroadVision with respect to
shares of BroadVision common stock subscribed for until
certificates representing such shares are issued to you. Unless
otherwise instructed in the subscription rights certificates,
your certificates for shares issued pursuant to your exercise of
subscription rights will be registered in your name.
If the rights offering is not completed for any reason, the
subscription agent will as soon as practicable return, without
interest, all funds received by it.
Shares of
common stock outstanding after the rights offering
As of
[ ],
2006 there
were shares
of BroadVision Common Stock outstanding. Assuming we issue all
of the shares of BroadVision common stock offered in the rights
offering, approximately
[ ] shares
of BroadVision common stock will be issued and outstanding after
the expiration of the rights offering.
Other
matters
We are not making the rights offering in any state or other
jurisdiction in which it is unlawful to do so. We will not sell
or accept an offer to purchase BroadVision common stock from you
if you are a resident of any such state or other jurisdiction.
We may delay the commencement of the rights offering in certain
states or other jurisdictions in order to comply with the laws
of such states or other jurisdictions. We do not expect that
there will be any changes in the terms of the rights offering.
However, we may decide, in our sole discretion, not to modify
the terms of the rights offering as may be requested by certain
states or other jurisdictions. If that happens and you are a
resident of that state, you will not be eligible to participate
in the rights offering.
CERTAIN
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain United States
federal income tax consequences of the rights offering to
holders of BroadVision common stock that hold such stock as a
capital asset for United States federal income tax purposes.
This discussion is based on laws, regulations, rulings and
decisions in effect on the date hereof, all of which are subject
to change (possibly with retroactive effect) and to differing
interpretations. This discussion applies only to holders that
are U.S. persons and does not address all aspects of United
States federal income taxation that may be relevant to holders
in light of their particular circumstances or to holders who may
be subject to special tax treatment under the Internal Revenue
Code, including, without limitation, holders of our warrants
(including holders of our warrants that, by virtue of the terms
of the warrants, will receive rights in this offering), holders
who are dealers in securities or foreign currency, foreign
persons, insurance companies, tax-exempt organizations, banks,
financial institutions, broker-dealers, holders who hold common
stock as part of a hedge, straddle, conversion or other risk
reduction transaction, or who acquired common stock pursuant to
the exercise of compensatory stock options or otherwise as
compensation.
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Moreover, this summary does not address the tax consequences of
the rights offering under state, local or foreign tax laws.
ACCORDINGLY, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS TO
DETERMINE THE SPECIFIC TAX CONSEQUENCES OF THE RIGHTS OFFERING
TO YOU.
Issuance
of the subscription rights
If you hold BroadVision common stock on the record date, you
should not recognize taxable income upon the receipt of the
subscription rights.
In general, a distribution by a corporation to its stockholders
of subscription rights to acquire stock of the distributing
corporation is not taxable. An exception to this general rule
applies in the case of a distribution which constitutes a
disproportionate distribution with respect to any class or
classes of stock of the corporation. A distribution of stock
rights constitutes a disproportionate distribution if it is a
part of a distribution or a series of distributions (including
deemed distributions) that has the effect of (1) the
receipt of property (including cash) by some stockholders and
(2) an increase in the proportionate interests of other
stockholders in the assets or earnings and profits of the
distributing corporation.
The distribution of the subscription rights to all stockholders
except Dr. Chen should not constitute a disproportionate
distribution taxable as a dividend since (1) the
Note Conversion was made with the expectation of promptly
thereafter making the distribution of subscription rights to the
remaining stockholders, and the subscription rights may be
exercised on the same economic terms as the private placement,
(2) there is a single class of stock outstanding, and
(3) there has not been nor is there expected to be any
property distributions to any stockholder in connection with the
distribution of subscription rights.
We intend to treat the distribution of subscription rights as a
nontaxable distribution. If the Internal Revenue Service were to
take a contrary position with respect to this matter, by deeming
the distribution of subscription rights to constitute a taxable
distribution, a person receiving a right would recognize a
dividend, taxable as ordinary income, in an amount equal to the
fair market value of the right received, but only to the extent
of our current and accumulated earnings and profits, if any. To
the extent the deemed distribution exceeds such current and
accumulated earnings and profits, any excess would be treated
first as a nontaxable recovery of adjusted tax basis in your
BroadVision common stock with respect to which the right was
distributed and then as gain from the sale or exchange of your
BroadVision common stock. Your tax basis in a right received in
a taxable distribution would equal the fair market value of the
right as of the date of distribution of the right. Your holding
period in the right would begin on the day following the date of
distribution of the right.
The following discussion assumes that the distribution of the
subscription rights will be treated as a nontaxable distribution.
Basis and
holding period of the subscription rights
Generally, if you hold BroadVision common stock on the record
date, your basis in the subscription rights you receive will be
zero. If, however, (1) the fair market value of the
subscription rights on the date we issue the subscription rights
is 15% or more of the fair market value (on that same date) of
BroadVision common stock, or (2) you properly elect under
Section 307 of the Internal Revenue Code in your federal
income tax return to allocate part of the basis of your
BroadVision common stock to the subscription rights, then your
basis in your shares of BroadVision common stock will be
allocated between your BroadVision common stock and the
subscription rights in proportion to the fair market values of
each on the date we issue the subscription rights. We have not
obtained an independent appraisal of the valuation of the
subscription rights and, therefore, each stockholder
individually must determine how Internal Revenue Code
Section 307 will apply in that stockholders
particular situation.
The holding period of your subscription rights will include your
holding period (as of the date of issuance) of the BroadVision
common stock with respect to which we distributed the
subscription rights to you.
Expiration
of the subscription rights
If your basis in your subscription rights is zero, and you allow
your subscription rights to expire unexercised, you will not
recognize any gain or loss.
26
If you have a basis in your subscription rights and you allow
your subscription rights to expire unexercised, you will
recognize a loss equal to the basis of those subscription
rights. Any loss you recognize on the expiration of your
subscription rights will be a capital loss if the BroadVision
common stock obtainable by you upon exercise of the subscription
rights would be a capital asset.
Exercise
of the subscription rights, basis and holding period of acquired
shares
You will not recognize any gain or loss upon the exercise of
your subscription rights. Your basis in each share of
BroadVision common stock you acquire through exercise of your
subscription rights will equal the sum of the subscription price
you paid to exercise your subscription rights and your basis, if
any, in the subscription rights. Your holding period for the
BroadVision common stock you acquire through exercise of your
subscription rights will begin on the date you exercise your
subscription rights.
Sale or
exchange of common stock
If you sell or exchange shares of BroadVision common stock, you
will generally recognize gain or loss on the transaction. The
gain or loss you recognize will be equal to the difference
between the amount you realize on the transaction and your basis
in the shares you sell. Such gain or loss generally will be
capital gain or loss so long as you held the shares as a capital
asset at the time of the sale or exchange. Gain or loss from a
capital asset held for more than one year will generally be
taxable as long term capital gain or loss.
Information
reporting and backup withholding
You may be subject to backup withholding with respect to the
rights offering. However, you will not be subject to backup
withholding if you: (1) are a corporation or fall within
certain other exempt categories and, when required, demonstrate
that fact; or (2) provide a correct taxpayer identification
number and certify under penalties of perjury that your taxpayer
identification number is correct and that you are not subject to
backup withholding because you previously failed to report all
dividends and interest income.
Any amount withheld under these rules will be credited against
your federal income tax liability. We may require you to
establish your exemption from backup withholding or make other
arrangements with respect to the payment of backup withholding.
THIS SUMMARY IS INCLUDED FOR GENERAL INFORMATION ONLY. YOU
SHOULD CONSULT YOUR OWN TAX ADVISORS REGARDING THE CONSEQUENCES
OF THE RIGHTS OFFERING TO YOUR PARTICULAR TAX SITUATION,
INCLUDING STATE AND LOCAL INCOME AND OTHER TAX LAWS.
PLAN OF
DISTRIBUTION
We are making the rights offering directly to you, the holders
of BroadVision common stock and the holders of certain warrants
exercisable for shares of BroadVision common stock that, by
their terms, grant you the right to participate in this rights
offering. We have not employed any brokers, dealers or
underwriters in connection with the rights offering and will not
pay any underwriting commissions, fees or discounts in
connection with the rights offering. Some of our directors or
officers may assist in the rights offering. These individuals
will not receive any commissions or compensation other than
their normal directors fees or employment compensation.
We will bear all costs, expenses and fees in connection with the
rights offering. We will pay the subscription agent a fee of
approximately $12,000 and reimburse the subscription agent for
certain expenses incurred in connection with the rights
offering. We estimate that our total expenses in connection with
the rights offering, including fees to the subscription agent,
will be approximately
$[ ].
27
SELECTED
CONSOLIDATED FINANCIAL DATA
You should read the following selected consolidated financial
data in conjunction with our consolidated financial statements
and the related notes and Managements Discussion and
Analysis of Financial Condition and Results of Operations
contained in our Annual Report on Form 10-K for the year ended
December 31, 2005 that is incorporated herein by reference. The
selected consolidated statement of operations data for the years
ended December 31, 2003, 2004 and 2005 and the selected
consolidated balance sheet data as of December 31, 2004 and
2005, including certain information for 2004 that has been
restated, are derived from the audited consolidated financial
statements contained in our Annual Report on Form 10-K for the
year ended December 31, 2005 that is incorporated herein by
reference. The selected consolidated financial data as of and
for the three months ended March 31, 2005, including certain
information that has been restated, and March 31, 2006 are
derived from our unaudited condensed consolidated financial
statements contained in our Quarterly Report on Form 10-Q for
the quarter ended March 31, 2006 that is incorporated herein by
reference. The unaudited condensed consolidated financial
statements include, in the opinion of management, all
adjustments, consisting only of normal, recurring adjustments,
that management considers necessary for a fair statement of the
results of those periods. The historical results are not
necessarily indicative of the results of operations to be
expected in any future periods and the results for the three
months ended March 31, 2006 are not necessarily indicative
of results to be expected for the full fiscal year ended
December 31, 2006.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
Years Ended December 31,
|
|
|
March 31,
|
|
|
|
2001
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
|
(In thousands, except per share data)
|
|
|
(Unaudited)
|
|
|
Consolidated Statement of
Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software licenses
|
|
$
|
101,480
|
|
|
$
|
40,483
|
|
|
$
|
30,230
|
|
|
$
|
26,883
|
|
|
$
|
14,721
|
|
|
$
|
4,416
|
|
|
|
2,882
|
|
Services
|
|
|
146,943
|
|
|
|
75,415
|
|
|
|
57,851
|
|
|
|
51,121
|
|
|
|
45,400
|
|
|
|
11,951
|
|
|
|
9,742
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
248,423
|
|
|
|
115,898
|
|
|
|
88,081
|
|
|
|
78,004
|
|
|
|
60,121
|
|
|
|
16,367
|
|
|
|
12,624
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of software licenses
|
|
|
9,895
|
|
|
|
8,144
|
|
|
|
2,561
|
|
|
|
1,303
|
|
|
|
(38
|
)
|
|
|
(57
|
)
|
|
|
62
|
|
Cost of services
|
|
|
97,639
|
|
|
|
38,898
|
|
|
|
25,708
|
|
|
|
24,978
|
|
|
|
21,931
|
|
|
|
5,980
|
|
|
|
4,058
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
107,534
|
|
|
|
47,042
|
|
|
|
28,269
|
|
|
|
26,281
|
|
|
|
21,893
|
|
|
|
5,923
|
|
|
|
4,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
140,889
|
|
|
|
68,856
|
|
|
|
59,812
|
|
|
|
51,723
|
|
|
|
38,228
|
|
|
|
10,444
|
|
|
|
8,504
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
78,677
|
|
|
|
41,432
|
|
|
|
21,067
|
|
|
|
18,024
|
|
|
|
13,831
|
|
|
|
4,287
|
|
|
|
2,631
|
|
Sales and marketing
|
|
|
139,799
|
|
|
|
48,918
|
|
|
|
26,394
|
|
|
|
27,340
|
|
|
|
16,208
|
|
|
|
5,811
|
|
|
|
2,381
|
|
General and administrative
|
|
|
42,311
|
|
|
|
16,288
|
|
|
|
9,790
|
|
|
|
9,538
|
|
|
|
9,479
|
|
|
|
2,535
|
|
|
|
1,738
|
|
Litigation settlement costs
|
|
|
|
|
|
|
|
|
|
|
4,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill and intangible amortization
|
|
|
211,216
|
|
|
|
3,548
|
|
|
|
886
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charge for acquired in-process
technology
|
|
|
6,418
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairment of assets
|
|
|
|
|
|
|
3,129
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairment of goodwill and other
intangibles
|
|
|
336,379
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31,386
|
|
|
|
|
|
|
|
|
|
Restructuring charge (credit)
|
|
|
153,284
|
|
|
|
110,449
|
|
|
|
35,356
|
|
|
|
(23,545
|
)
|
|
|
(462
|
)
|
|
|
(704
|
)
|
|
|
490
|
|
Business combination charge
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,817
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
968,084
|
|
|
|
223,764
|
|
|
|
97,743
|
|
|
|
31,357
|
|
|
|
73,241
|
|
|
|
11,929
|
|
|
|
7,240
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(827,195
|
)
|
|
|
(154,908
|
)
|
|
|
(37,931
|
)
|
|
|
20,366
|
|
|
|
(35,013
|
)
|
|
|
(1,485
|
)
|
|
|
1,264
|
|
Other income (expense), net
|
|
|
(6,928
|
)
|
|
|
(8,011
|
)
|
|
|
2,899
|
|
|
|
(2,109
|
)
|
|
|
(6,564
|
)
|
|
|
6,866
|
|
|
|
(227
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
(834,123
|
)
|
|
|
(162,919
|
)
|
|
|
(35,032
|
)
|
|
|
18,257
|
|
|
|
(41,577
|
)
|
|
|
5,381
|
|
|
|
1,037
|
|
Income tax benefit (provision)
|
|
|
(2,136
|
)
|
|
|
(7,603
|
)
|
|
|
(439
|
)
|
|
|
309
|
|
|
|
2,611
|
|
|
|
2,032
|
|
|
|
(156
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(836,259
|
)
|
|
$
|
(170,522
|
)
|
|
$
|
(35,471
|
)
|
|
$
|
18,566
|
|
|
$
|
(38,966
|
)
|
|
$
|
7,413
|
|
|
|
881
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
Years Ended December 31,
|
|
|
March 31,
|
|
|
|
2001
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
|
(In thousands, except per share data)
|
|
|
(Unaudited)
|
|
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings (loss) per share
|
|
$
|
(27.20
|
)
|
|
$
|
(5.32
|
)
|
|
$
|
(1.08
|
)
|
|
$
|
0.55
|
|
|
$
|
(1.14
|
)
|
|
$
|
0.22
|
|
|
$
|
0.02
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings (loss) per share
|
|
$
|
(27.20
|
)
|
|
$
|
(5.32
|
)
|
|
$
|
(1.08
|
)
|
|
$
|
0.54
|
|
|
$
|
(1.14
|
)
|
|
|
0.19
|
|
|
|
0.02
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in
computation basic earnings (loss) per share
|
|
|
30,748
|
|
|
|
32,036
|
|
|
|
32,800
|
|
|
|
33,539
|
|
|
|
34,228
|
|
|
|
33,971
|
|
|
|
42,958
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in
computation diluted earnings (loss) per share
|
|
|
30,748
|
|
|
|
32,036
|
|
|
|
32,800
|
|
|
|
34,321
|
|
|
|
34,228
|
|
|
|
39,968
|
|
|
|
43,068
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
As of March 31,
|
|
|
|
2001
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
(restated)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
Consolidated Balance Sheet
Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
75,758
|
|
|
$
|
77,386
|
|
|
$
|
78,776
|
|
|
$
|
41,851
|
|
|
$
|
4,849
|
|
|
$
|
37,218
|
|
|
|
10,644
|
|
Working capital (deficit)
|
|
|
67,165
|
|
|
|
5,616
|
|
|
|
748
|
|
|
|
(20,273
|
)
|
|
|
(35,872
|
)
|
|
|
(19,740
|
)
|
|
|
(13,214
|
)
|
Total assets
|
|
|
392,417
|
|
|
|
240,136
|
|
|
|
195,082
|
|
|
|
144,653
|
|
|
|
49,942
|
|
|
|
118,842
|
|
|
|
55,840
|
|
Debt and capital leases, less
current portion
|
|
|
2,922
|
|
|
|
1,945
|
|
|
|
969
|
|
|
|
4,227
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated deficit
|
|
|
(998,682
|
)
|
|
|
(1,169,204
|
)
|
|
|
(1,204,675
|
)
|
|
|
(1,186,109
|
)
|
|
|
(1,225,075
|
)
|
|
|
(1,178,698
|
)
|
|
|
(1,224,194
|
)
|
Total stockholders equity
(deficit)
|
|
|
203,147
|
|
|
|
41,633
|
|
|
|
7,950
|
|
|
|
28,341
|
|
|
|
(9,723
|
)
|
|
|
36,167
|
|
|
|
12,073
|
|
29
MANAGEMENTS
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read this discussion and analysis in conjunction
with our consolidated financial statements and the related notes
incorporated by reference into this prospectus. In addition to
the historical consolidated information, the following
discussion contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended, and within the meaning of Section 21E of the
Securities Exchange Act of 1934, as amended, which are subject
to the safe harbor created by those sections. These
forward-looking statements are generally identified by words
such as expect, anticipate,
intend, believe, hope,
assume, estimate, plan,
will and other similar words and expressions. These
forward-looking statements involve risks and uncertainties that
could cause our actual results to differ materially from those
expressed or implied in the forward-looking statements as a
result of certain factors. Factors that could cause or
contribute to differences include those discussed below and
elsewhere in this prospectus, particularly in Risk
Factors. We undertake no obligation to publicly release
any revisions to the forward-looking statements or to reflect
events and circumstances after the date of this document.
Overview
BroadVision solutions help customers rapidly increase revenues
and reduce costs by moving interactions and transactions to
personalized self service via the web. Our integrated
self-service application suite including process,
commerce, portal and content offers rich
functionality out of the box, and is easily configured for each
customers
e-business
environment.
Over 1,000 customers including U.S. Air Force,
Lockheed Martin, Netikos, Circuit City, Iberia L.A.E. and
Vodafone have licensed BroadVision solutions to
power and personalize their mission-critical web initiatives.
Worldwide demand for enterprise software has declined
significantly over the past several years. The decline in
venture capital spending has resulted in fewer new companies
with funding to, among other things, build an on-line business.
Established companies have scaled back, delayed or cancelled
web-based initiatives. As a result of these reasons and others,
in particular the selling challenges created by our
deteriorating financial condition, we have seen significant
declines in our revenue over the past four fiscal years.
Our objective is to further our position as a global supplier of
web-based, self-service applications. This will require us to
continue to build in new functionality to our applications that
offer our customers a compelling value proposition to license
our products rather than design and build custom solutions.
We generate revenue from fees for licenses of our software
products, maintenance, consulting services and customer
training. We generally charge fees for licenses of our software
products either based on the number of persons registered to use
the product or based on the number of CPUs on the machine on
which the product is installed. Payment terms are generally
thirty days from the date the products are delivered or the
services are provided.
From 2001 to December 31, 2005, we have incurred
significant losses and negative cash flows from operations. In
fiscal years 2004 and 2005, we incurred significant cash usage
related to the termination of excess real estate obligations,
certain reductions in workforce and the execution and subsequent
termination of an acquisition agreement. See further discussion
under Background and Recent Events below. Although
we believe that cash flows will be benefited in future periods
by a number of these events, we make no assurance about our
ability to generate profits or positive cash flows in future
periods.
We strive to anticipate changes in the demand for our services
and aggressively manage our labor force appropriately. Through
our thorough budgeting process, cross-functional management
participates in the planning, reviewing and managing of our
business plans. This process is intended to allow us to adjust
our cost structures to changing market needs, competitive
landscapes and economic factors. Our emphasis on cost control
helps us manage our margins even if revenues generated fall
short of what we anticipated.
30
Background
and Recent Events
During the third and fourth quarters of 2004, we reached
agreements with certain landlords to extinguish approximately
$155.0 million of future real estate obligations. We made
cash payments of $20.7 million in 2004 and
$25.0 million in 2005. In addition, we issued to one of the
landlords a five-year warrant to purchase approximately
700,000 shares of BroadVision common stock at an exercise
price of $5.00 per share, which became exercisable in
August 2005. As a component of the settlement of one of the
previous leases, we have a residual lease obligation beginning
in 2007 of approximately $9.1 million. We may make an
additional cash payment of $4.5 million if we exercise an
option to terminate this residual real estate obligation prior
to the lease term. This option to terminate the residual lease
obligation, discounted to net present value, is accounted for in
accordance with SFAS 146 and is part of the current
restructuring accrual as of December 31, 2005.
In November 2004, we entered into a definitive agreement for the
private placement of the Notes that were convertible, at the
holders option, into common stock at a conversion price of
$2.76 per share. The Notes bore interest at a rate of six
percent per annum, and we were originally obligated to repay the
principal amount of the initial $16.0 million of notes in 15
equal monthly installments of $1.1 million beginning in June
2005. Payments of future principal and interest could have been
made in either cash or, upon satisfaction of various conditions
set forth in the Notes, shares of BroadVision common stock.
However, because we did not satisfy the conditions required to
make payments in stock, we were required to use cash to satisfy
our payment obligations under the Notes. Certain principal
payments that were due in the quarters ended September 30, 2005
and December 31, 2005, were deferred at the election of the
investors for a period of 18 months under the terms of the Notes.
In October 2005, we inadvertently did not make timely payment of
the third quarter interest payment due under the Notes of
approximately $201,000 that was due on October 1, 2005.
Lack of timely payment became an event of default on
October 8, 2005 after non-payment continued for a period of
over five business days. We made the third quarter interest
payment promptly after discovery of the nonpayment, on
October 14, 2005. The event of default permitted each
noteholder to require us to redeem 120% of all or any portion of
the amounts outstanding under the applicable Note by delivering
to us notice of such redemption, which redemption is required
under the Notes to be paid within five business days after
receipt of such redemption notice. If all of the noteholders had
elected such redemption, we would have been obligated to pay
within five business days after receipt of such election
approximately $15.5 million in unpaid principal and
interest. The accelerated repayment of all or any significant
portion of such amount would have left us with insufficient
working capital to conduct our business, and we did not have
sufficient cash to meet such an accelerated repayment
obligation. On October 25, 2005, we entered into an
agreement with the noteholders under which the noteholders
agreed not to require redemption of the Notes, including the 20%
premium payable thereunder, prior to November 16, 2005.
During the quarter ended December 31, 2005, we recorded a
charge of $2.6 million in our Consolidated Statement of
Operations, which represented the 20% increase in the redeemable
debt premium.
In November 2005, the Notes were purchased by Vector
Capital III, L.P. (Vector III), an entity
affiliated with Vector Capital Corporation (Vector),
and subsequently on November 18, 2005, the Notes were in
turn purchased by Honu Holdings, LLC, a Delaware limited
liability company controlled by Dr. Pehong Chen, our Chief
Executive Officer and largest stockholder. See further
discussion below. Certain principal payments that were due in
the quarters ended September 30, 2005 and December 31,
2005, were deferred at the election of the investors for a
period of eighteen months under the terms of the Notes.
On June 29, 2005, our Board of Directors approved a
business restructuring plan, primarily consisting of headcount
reductions, designed to adjust expenses to a level more
consistent with anticipated revenues. The reduction included
approximately 63 employees, or 22% of our workforce. We recorded
severance charges of approximately $443,000 and $627,000 in the
three-month periods ended September 30 and June 30,
2005, respectively.
On July 25, 2005, we entered into the Merger Agreement with
Bravo Holdco and Bravo Merger Sub, LLC. Under the terms of the
Merger Agreement, the holders of shares of BroadVision common
stock that were outstanding immediately prior to the
consummation of the Merger were to receive $0.84 in cash for
each share of common stock at the time of the consummation of
the Merger. The consummation of the Merger was conditioned upon,
among other things, the adoption of the Merger Agreement by the
holders of a majority of the outstanding
31
shares of BroadVision common stock and other closing
conditions. Although over 90% of the shares present in person or
by proxy were in favor of the Merger Agreement, a quorum
necessary to hold the stockholders meeting at which a vote
to approve the Merger Agreement would be taken was not achieved,
and therefore, in November 2005, we and Vector announced mutual
termination of the Merger Agreement. In connection with the
termination and pursuant to the Merger Agreement, we made a
$989,666 expense reimbursement payment to a Vector subsidiary on
January 17, 2006. In the three-month period ended
December 31, 2005, we recorded a charge of approximately
$1.8 million for costs associated with the proposed Merger
and the termination of the Merger Agreement, all of which was
paid in January 2006.
In November 2005, Honu acquired all Notes then outstanding.
Including interest, the Notes represented $15.5 million in
debt obligations as of December 15, 2005. In order to
relieve us from the liquidity challenges presented by the Notes,
Dr. Chen agreed to cancel all amounts owed under the Notes
in exchange for 34,500,000 shares of BroadVision common
stock, at an effective price per share of $0.45, a 25% discount
to the December 20, 2005 closing price of BroadVision
common stock, and $180,000 in cash that represented the portion
of the accrued interest on the Notes that was not paid in stock.
That exchange was completed in March 2006. The common share
issuance, representing approximately 50% of the post-conversion
shares outstanding, increased Dr. Chens ownership
interest in BroadVision to approximately 59% of the total shares
outstanding.
In February 2006, we announced a subscription rights offering to
existing stockholders to sell a total of 178 million
shares, or 5.9 shares for each share of BroadVision common
stock held as of the record date of December 20, 2005, at
effective price per share of $0.45. The primary purpose of the
rights offering is to allow the holders of BroadVision common
stock an opportunity to further invest in BroadVision in order
to maintain their proportionate interest in BroadVision common
stock, at the same price per share as the per share price
afforded to Dr. Chen in connection with the Notes
cancellation. Dr. Chen has waived any right to participate
in the rights offering. Under the terms of the offering, each
common stockholder as of December 20, 2005 will have the
right to purchase approximately 5.9 shares of common stock
for each common share then held. The rights offering will be
made only by means of a prospectus, a preliminary copy of which
was filed with the Securities and Exchange Commission as part of
a registration statement on February 3, 2006.
In order to complete the issuance of shares to Dr. Chen
without violating applicable listing standards, we delivered to
Nasdaq a notification of voluntary delisting of BroadVision
common stock from the Nasdaq National Market effective prior to
the opening of trading on March 8, 2006. We had previously
received a notice from Nasdaq stating that we were not in
compliance with the minimum bid price rules applicable to stocks
traded on Nasdaq, and that we had until March 6, 2006 to
regain compliance. Quotations for BroadVision common stock are
currently available through the Pink Sheets
(www.pinksheets.com) under the trading symbol BVSN,
and we anticipate that such quotations will continue to be
available.
In March 2006, we received a $1.2 million property tax
refund from the County of San Mateo covering tax years 2000
through 2005. We are obligated to compensate an outside tax
specialist $335,000 for its efforts to reach agreement with the
County on the Companys behalf. The net proceeds were
included in the operating expenses for the quarter ended
March 31, 2006.
In June 2006, William Meyer resigned as our Chief Financial
Officer, a position Mr. Meyer had held since April 2003.
Dr. Chen will serve as Chief Financial Officer on an
interim basis until a permanent replacement is hired.
In the quarter ended September 30, 2005, we recognized a
goodwill impairment charge of $13.2 million as an estimated
impairment in accordance with the requirements of Statement of
Financial Accounting Standards No. 142, Goodwill and
Other Intangible Assets (SFAS 142). As of
September 30, 2005, we performed Step 1 under the
provisions of SFAS 142 by determining that we have a single
reporting unit and then comparing our net book value to the our
market capitalization based upon the quoted market price of our
stock. Based upon the results of Step 1 and as permitted under
SFAS 142, we estimated the impairment charge under Step 2
by estimating the fair value of all other assets and liabilities
of the reporting unit. Subsequent to the issuance of our third
quarter financial statements, we obtained a third-party
valuation report, completed Step 2 and recorded an adjustment to
the original estimate (recognized an additional impairment
charge) of $18.2 million in the quarter ended
December 31, 2005. Further, as of December 31, 2005,
we performed a goodwill impairment analysis under Step 1.
Because the fair
32
value was determined to be greater than book value, Step 2
under SFAS 142 was not required, and therefore no
additional impairment was necessary at December 31, 2005.
We have maintained various credit facilities with a commercial
lender:
|
|
|
|
|
During the three years ended December 31, 2005, we
maintained a revolving line of credit in the form of a loan and
security agreement with a commercial lender. In June 2005, we
entered into a $20 million renewed and amended loan and
security agreement with the lender that made more stringent the
requirements we must meet in order to access the credit
facility. We were not in compliance with these new requirements
as of December 31, 2005, and the loan and security
agreement expired in February 2006. The agreement required us to
maintain certain levels of unrestricted cash and cash
equivalents (excluding equity investments), and to maintain
certain levels on deposit with the lender. At December 31,
2004, $20.0 million was outstanding under the line of
credit. As of December 31, 2005, there was no outstanding
balance on the line of credit. Borrowings bear interest at the
banks prime rate (7.25% as of December 31, 2005 and
5.25% as of December 31, 2004) plus up to 1.25% and
were collateralized by all of our assets. Interest was due
monthly and principal was due at the expiration in February 2006.
|
|
|
|
|
|
We have entered into term debt in the form of notes payable with
the same lender. The term debt requires monthly payments of
approximately $38,000 plus interest through October 2006, and
monthly payments of approximately $2,000 for the five months
ending March 2007. A portion of the term debt was utilized for
an equipment line of credit. Principal and interest are due in
monthly payments through maturity based on the terms of the
facilities. Principal payments of $389,000 are due in 2006. As
of December 31, 2005, the entire balance of $389,000 was
classified as currently due.
|
Restatement
As discussed more fully in Note 5 to our Consolidated
Financial Statements contained in Item 8 of our Annual
Report on
Form 10-K
for the year ended December 31, 2005, subsequent to the
issuance of the 2004 consolidated financial statements, based on
clarifying SEC guidance issued in 2005, we made a determination
that the convertible debentures entered into in 2004 included an
embedded derivative that should be valued under the provisions
of SFAS 133. We had previously determined that convertible
debentures were conventional under the provisions of
EITF 00-19,
Accounting for Derivative Financial Instruments Indexed to,
and Potentially Settled in, a Companys Own Stock.
Therefore, we have restated our operating results for the
three-month period and year ended December 31, 2004, and
for the three-month periods ended March 31, June 30
and September 30, 2005.
The following tables outline the effects of the restatements and
amendments described above for the periods that have been
previously reported (in thousands, except per share data).
As of and for the Twelve Months Ended:
|
|
|
|
|
|
|
|
|
|
|
December 31, 2004
|
|
|
|
Previously
|
|
|
|
|
|
|
Reported
|
|
|
Restated
|
|
|
Interest expense, net
|
|
$
|
(228
|
)
|
|
$
|
(629
|
)
|
Income (expense) from derivatives
|
|
$
|
(753
|
)
|
|
$
|
(2,421
|
)
|
Net income
|
|
$
|
20,635
|
|
|
$
|
18,566
|
|
Basic net income per share
|
|
$
|
0.62
|
|
|
$
|
0.55
|
|
Diluted net income per share
|
|
$
|
0.60
|
|
|
$
|
0.54
|
|
Total liabilities
|
|
$
|
114,243
|
|
|
$
|
116,312
|
|
Total stockholders equity
|
|
$
|
30,410
|
|
|
$
|
28,341
|
|
33
As of and for the Three Months Ended:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2004
|
|
|
March 31, 2005
|
|
|
June 30, 2005
|
|
|
September 30, 2005
|
|
|
|
Previously
|
|
|
|
|
|
Previously
|
|
|
|
|
|
Previously
|
|
|
|
|
|
Previously
|
|
|
|
|
|
|
Reported
|
|
|
Restated
|
|
|
Reported
|
|
|
Restated
|
|
|
Reported
|
|
|
Restated
|
|
|
Reported
|
|
|
Restated
|
|
|
Interest expense, net
|
|
$
|
(516
|
)
|
|
$
|
(917
|
)
|
|
$
|
(744
|
)
|
|
$
|
(1,723
|
)
|
|
$
|
(1,090
|
)
|
|
$
|
(2,532
|
)
|
|
$
|
(1,002
|
)
|
|
$
|
(2,073
|
)
|
Income (expense) from derivatives
|
|
$
|
(753
|
)
|
|
$
|
(2,421
|
)
|
|
$
|
2,517
|
|
|
$
|
7,991
|
|
|
$
|
997
|
|
|
$
|
2,257
|
|
|
$
|
698
|
|
|
$
|
794
|
|
Net (loss) income
|
|
$
|
(386
|
)
|
|
$
|
(2,455
|
)
|
|
$
|
2,918
|
|
|
$
|
7,413
|
|
|
$
|
(2,914
|
)
|
|
$
|
(3,095
|
)
|
|
$
|
(14,538
|
)
|
|
$
|
(15,512
|
)
|
Basic net (loss) income per share
|
|
$
|
(0.01
|
)
|
|
$
|
(0.07
|
)
|
|
$
|
0.09
|
|
|
$
|
0.22
|
|
|
$
|
(0.09
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
(0.42
|
)
|
|
$
|
(0.45
|
)
|
Diluted net (loss) income per share
|
|
$
|
(0.01
|
)
|
|
$
|
(0.07
|
)
|
|
$
|
0.07
|
|
|
$
|
0.19
|
|
|
$
|
(0.09
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
(0.42
|
)
|
|
$
|
(0.45
|
)
|
Total liabilities
|
|
$
|
114,243
|
|
|
$
|
116,312
|
|
|
$
|
85,099
|
|
|
$
|
82,673
|
|
|
$
|
75,424
|
|
|
$
|
73,179
|
|
|
$
|
50,963
|
|
|
$
|
49,674
|
|
Total stockholders equity
|
|
$
|
30,410
|
|
|
$
|
28,341
|
|
|
$
|
33,743
|
|
|
$
|
36,167
|
|
|
$
|
30,959
|
|
|
$
|
33,205
|
|
|
$
|
16,480
|
|
|
$
|
17,749
|
|
Critical
Accounting Policies, Judgments and Estimates
This managements discussion and analysis of our financial
condition and results of operations is based upon our condensed
consolidated financial statements, which have been prepared in
accordance with generally accepted accounting principles in the
United States of America. In preparing these financial
statements, we are required to make estimates and judgments that
affect the reported amounts of assets, liabilities, revenues and
expenses, and related disclosures of contingent assets and
liabilities. On an ongoing basis, we evaluate our estimates,
including those related to doubtful accounts, product returns,
investments, goodwill and intangible assets, income taxes and
restructuring, as well as contingencies and litigation. We base
our estimates on historical experience and on various other
assumptions that we believe are reasonable, the results of which
form the basis for making judgments about the carrying values of
assets and liabilities that are not readily apparent from other
sources. Actual results may differ from these estimates using
different assumptions or conditions. We believe the following
critical accounting policies reflect the more significant
judgments and estimates used in the preparation of our
consolidated financial statements.
At March 31, 2006, the Companys current liabilities
exceeded current assets by approximately $13.2 million
(negative working capital) resulting in a working capital ratio
of approximately 0.66 to 1.0. Based on our current liquidity
position, our analysis of the components of our current assets
and liabilities, our actual financial results for the first
quarter of 2006 and our internal financial forecast for the
balance of the year, we currently expect to be able to fund our
working capital requirements through at least the end of 2006
from our existing cash and cash equivalents and our anticipated
cash flows from operations and subleases. Our Chairman, Chief
Executive Officer and largest stockholder has committed to
provide, upon our request at any time through December 31,
2006, up to $5 million of working capital support through
cash, debt guarantees or a combination thereof on mutually
satisfactory terms. Accordingly, no adjustments have been made
to the carrying values or classification of the assets and
liabilities in the accompanying financial statements to take
account of any uncertainty as to our ability to continue as a
going concern.
Revenue
Recognition
Overview Our revenue consists of fees for
licenses of our software products, maintenance, consulting
services and customer training. We generally charge fees for
licenses of our software products either based on the number of
persons registered to use the product or based on the number of
CPUs on the machine on which the product is installed. Licenses
for software whereby fees charged are based upon the number of
persons registered to use the product are differentiated between
licenses for development use and licenses for use in deployment
of the customers website. Licenses for software whereby
fees charged are on a per-CPU basis do not differentiate between
development and deployment usage. Our revenue recognition
policies comply with the provisions of
34
Statement of Position (SOP)
No. 97-2,
Software Revenue Recognition, as amended;
SOP No. 98-9,
Software Revenue Recognition, With Respect to Certain
Transactions and SAB 104, Revenue Recognition.
Software License Revenue We license our
products through our direct sales force and indirectly through
resellers. In general, software license revenues are recognized
when a non-cancelable license agreement has been signed and the
customer acknowledges an unconditional obligation to pay, the
software product has been delivered, there are no uncertainties
surrounding product acceptance, the fees are fixed and
determinable and collection is considered probable. Delivery is
considered to have occurred when title and risk of loss have
been transferred to the customer, which generally occurs when
media containing the licensed programs is provided to a common
carrier. In case of electronic delivery, delivery occurs when
the customer is given access to the licensed programs. For
products that cannot be used without a licensing key, the
delivery requirement is met when the licensing key is made
available to the customer. If collectibility is not considered
probable, revenue is recognized when the fee is collected.
Subscription-based license revenues are recognized ratably over
the subscription period. We enter into reseller arrangements
that typically provide for sublicense fees payable to the us
based upon a percentage of list price. We do not grant resellers
the right of return.
We recognize revenue using the residual method pursuant to the
requirements of
SOP No. 97-2,
as amended by
SOP No. 98-9.
Revenues recognized from multiple-element software arrangements
are allocated to each element of the arrangement based on the
fair values of the elements, such as licenses for software
products, maintenance, consulting services or customer training.
The determination of fair value is based on objective evidence,
which is specific to us. We limit its assessment of objective
evidence for each element to either the price charged when the
same element is sold separately or the price established by
management having the relevant authority to do so, for an
element not yet sold separately. If evidence of fair value of
all undelivered elements exists but evidence does not exist for
one or more delivered elements, then revenue is recognized using
the residual method. Under the residual method, the fair value
of the undelivered elements is deferred and the remaining
portion of the arrangement fee is recognized as revenue.
We record unearned revenue for software license agreements when
cash has been received from the customer and the agreement does
not qualify for revenue recognition under our revenue
recognition policy. We record accounts receivable for software
license agreements when the agreement qualifies for revenue
recognition but cash or other consideration has not been
received from the customer.
Services Revenue Consulting services revenues
and customer training revenues are recognized as such services
are performed. Maintenance revenues, which include revenues
bundled with software license agreements that entitle the
customers to technical support and future unspecified
enhancements to our products, are deferred and recognized
ratably over the related agreement period, generally twelve
months.
Our consulting services, which consist of consulting,
maintenance and training, are delivered through the BroadVision
Global Services (BVGS) organization. Services that
we provide are not essential to the functionality of the
software. We record reimbursement from our customers for
out-of-pocket
expenses as an increase to services revenues.
Allowances
and Reserves
We assess credit worthiness of significant customers in advance
of revenue recognition based upon a combination of payment
history and third-party credit reports. Occasionally, our
customers experience financial difficulty after we record the
revenue but before we are paid. We maintain allowances for
doubtful accounts for estimated losses resulting from the
inability of our customers to make required payments. Our normal
payment terms are 30 to 90 days from invoice date. If the
financial condition of our customers were to deteriorate,
resulting in an impairment of their ability to make payments,
additional allowances may be required.
Research
and Development and Software Development Costs
Under the criteria set forth in the Statement of Financial
Accounting Standards (SFAS) No. 86, Accounting for the
Cost of Computer Software to be Sold, Leased or Otherwise
Marketed, development costs incurred in the research and
development of new software products are expensed as incurred
until technological feasibility in the
35
form of a working model has been established at which time such
costs are capitalized and recorded at the lower of unamortized
cost or net realizable value. The costs incurred subsequent to
the establishment of a working model but prior to general
release of the product have not been significant. To date, the
Company has not capitalized any costs related to the development
of software for external use.
Impairment
Assessments
We adopted SFAS 142 on January 1, 2002. Pursuant to
SFAS 142, we are required to test goodwill for impairment
upon adoption and annually or more often if events or changes in
circumstances indicate that the asset might be impaired. While
there was no accounting charge to record upon adoption, we
concluded that, as of March 31, 2006, based on the
existence of impairment indicators including a decline in the
market value of our common shares, we would be required to test
goodwill for impairment. SFAS No. 142 provides for a
two-step approach to determining whether and by how much
goodwill has been impaired. Since we have only one reporting
unit for purposes of applying SFAS No. 142, the first
step requires a comparison of the fair value of BroadVision to
our net book value. If the fair value is greater, then no
impairment is deemed to have occurred. If the fair value is
less, then the second step must be completed to determine the
amount, if any, of actual impairment.
In the quarter ended September 30, 2005, we recognized a
goodwill impairment charge of $13.2 million as an estimated
impairment in accordance with the requirements of Statement of
Financial Accounting Standards No. 142, Goodwill and
Other Intangible Assets (SFAS 142). As of
September 30, 2005, we performed Step 1 under the
provisions of SFAS 142 by determining that we have a single
reporting unit and then comparing our net book value to the our
market capitalization based upon the quoted market price of our
stock. Based upon the results of Step 1 and as permitted under
SFAS 142, we estimated the impairment charge under Step 2
by estimating the fair value of all other assets and liabilities
of the reporting unit. Subsequent to the issuance of our third
quarter financial statements, we obtained a third-party
valuation report, completed Step 2 and recorded an adjustment to
the original estimate (recognized an additional impairment
charge) of $18.2 million in the quarter ended
December 31, 2005. Further, as of December 31, 2005,
we performed a goodwill impairment analysis under Step 1.
Because the fair value was determined to be greater than book
value, Step 2 under SFAS 142 was not required, and
therefore no additional impairment was necessary at
December 31, 2005 and March 31, 2006.
Deferred
Tax Assets
We analyze our deferred tax assets with regard to potential
realization. We have established a valuation allowance on our
deferred tax assets to the extent that we determined that it is
more likely than not that some portion or all of the deferred
tax assets will not be realized based upon the uncertainty of
their realization. We have considered estimated future taxable
income and ongoing prudent and feasible tax planning strategies
in assessing the amount of the valuation allowance.
Accounting
for Stock-Based Compensation
In accordance with Statement of Financial Accounting Standards
No. 123R, Share Based Payment: An Amendment of FASB
Statements No. 123 and 95 (FAS 123R), in
our first quarter of 2006 we started to recognize compensation
expense related to stock options granted to employees based on:
(a) compensation cost for all share-based payments granted
prior to, but not yet vested as of January 1, 2006, based
on the grant date fair value estimated in accordance with
FAS No 123, Accounting for Stock-Based Compensation
(SFAS 123), adjusted for an estimated future
forfeiture rate, and (b) compensation cost for all
share-based payments granted subsequent to January 1, 2006,
based on the grant-date fair value estimated in accordance with
the provisions of SFAS 123R.
Our assessment of the estimated fair value of the stock options
granted is affected by our stock price as well as assumptions
regarding a number of complex and subjective variables. We
utilize the Black-Scholes model to estimate the fair value of
stock options granted. Generally, our calculation of the fair
value for options granted under SFAS 123R is similar to the
calculation of fair value under SFAS 123 with the exception
of the treatment of forfeitures. The fair value of restricted
stock units granted is based on the grate date price of our
common stock.
36
The Black-Scholes option valuation model was developed for use
in estimating the fair value of traded options that have no
vesting restrictions and are fully transferable. This model also
requires the input of highly subjective assumptions including:
|
|
|
|
|
The expected volatility of our common stock price, which we
determine based on historical volatility of our common stock
over the expected term of the option;
|
|
|
|
|
|
Expected dividends, which are nil, as we do not currently
anticipate issuing dividends;
|
|
|
|
|
|
Expected life of the stock option, which is estimated based on
the historical stock option exercise behavior of our employees;
and
|
|
|
|
|
|
Expected forfeitures of stock options, which is estimated based
on the historical turnover of our employees. Prior to adoption
of FAS 123R, we recognized forfeitures under FAS 123 as
they occurred.
|
In the future, we may elect to use different assumptions under
the Black-Scholes valuation model or a different valuation
model, which could result in a significantly different impact on
our net income or loss.
Reverse
Stock Splits
On July 24, 2002, we announced that our Board of Directors
had approved a
one-for-nine
reverse split of BroadVision common stock. The reverse split was
effective on July 29, 2002. Each nine shares of outstanding
BroadVision common stock automatically converted into one share
of common stock. BroadVision common stock began trading on a
post-split basis at the opening of trading on the Nasdaq
National Market on July 30, 2002.
The accompanying consolidated financial statements and related
financial information contained herein have been retroactively
restated to give effect for the July 2002 reverse split.
Restructuring
Charges
We have approved restructuring plans to, among other things,
reduce our workforce and consolidate facilities. Restructuring
and asset impairment charges were taken to align our cost
structure with changing market conditions and to create a more
efficient organization. Our restructuring charges are comprised
primarily of: (1) severance and benefits termination costs
related to the reduction of our workforce; (2) lease
termination costs
and/or costs
associated with permanently vacating our facilities;
(3) other incremental costs incurred as a direct result of
the restructuring plan; and (4) impairment costs related to
certain long-lived assets abandoned. We account for each of
these costs in accordance with SAB 100, Restructuring
and Impairment Charges.
Severance and Termination Costs. We account
for severance and benefits termination costs as follows:
|
|
|
|
|
For exit or disposal activities initiated on or prior to
December 31, 2002, we account for costs in accordance with
EITF Issue
No. 94-3,
Liability Recognition for Certain Employee Termination
Benefits and Other Costs to Exit an Activity (Including Certain
Costs Incurred in a Restructuring)
(EITF 94-3).
Accordingly, we record the liability related to these
termination costs when the following conditions have been met:
(1) management with the appropriate level of authority
approves a termination plan that commits us to such plan and
establishes the benefits the employees will receive upon
termination; (2) the benefit arrangement is communicated to
the employees in sufficient detail to enable the employees to
determine the termination benefits; (3) the plan
specifically identifies the number of employees to be
terminated, their locations and their job classifications; and
(4) the period of time to implement the plan does not
indicate changes to the plan are likely.
|
|
|
|
|
|
For exit or disposal activities initiated after
December 31, 2002, we account for costs in accordance with
SFAS No. 146, Accounting For Costs Associated with
Exit Activities (SFAS 146). SFAS 146
requires that a liability for a cost associated with an exit or
disposal activity be recognized and measured initially at fair
value only when the liability is incurred. This differs from
EITF 94-3,
which required that a liability for an exit cost be recognized
at the date of an entitys commitment to an exit plan.
|
37
Excess Facilities Costs. We account for excess
facilities costs as follows:
|
|
|
|
|
For exit or disposal activities initiated on or prior to
December 31, 2002, we account for lease termination
and/or
abandonment costs in accordance with EITF Issue
No. 88-10,
Costs Associated with Lease Modification or Termination
(EITF 88-10). Accordingly, we recorded the costs
associated with lease termination
and/or
abandonment when the leased property had no substantive future
use or benefit to us.
|
|
|
|
|
|
For exit or disposal activities initiated after
December 31, 2002, we account for lease termination
and/or
abandonment costs in accordance with SFAS 146, which
requires that a liability for such costs be recognized and
measured initially at fair value on the cease use date of the
facility.
|
Severance and termination costs and excess facilities costs we
record under these provisions are not associated with nor do
they benefit continuing activities.
Inherent in the estimation of the costs related to our
restructuring efforts are assessments related to the most likely
expected outcome of the significant actions to accomplish the
restructuring. In determining the charges related to the
restructurings to date, the majority of estimates made by
management have related to charges for excess facilities. In
determining the charges for excess facilities, we were required
to estimate future sublease income, future net operating
expenses of the facilities, and brokerage commissions, among
other expenses. The most significant of these estimates have
related to the timing and extent of future sublease income,
which reduced our lease obligations. We based our estimates of
sublease income, in part, on the opinions of independent real
estate experts, current market conditions and rental rates, an
assessment of the time period over which reasonable estimates
could be made, the status of negotiations with potential
subtenants, and the location of the respective facility, among
other factors. We have recorded the low-end of a range of
assumptions modeled for restructuring charges, in accordance
with SFAS 5. Adjustments to the facilities accrual will be
required if actual lease exit costs or sublease income differ
from amounts currently expected. We will review the status of
restructuring activities on a quarterly basis and, if
appropriate, record changes to our restructuring obligations in
current operations based on managements most current
estimates.
On June 29, 2005, our Board of Directors approved a
business restructuring plan, primarily consisting of headcount
reductions, designed to adjust expenses to a level more
consistent with anticipated revenues. The reduction included
approximately 63 employees, or 22% of our workforce. We recorded
severance charges of approximately $443,000 and $627,000 in the
three-month periods ended September 30, 2005 and
June 30, 2005, respectively.
As mentioned above, we have based our excess facilities accrual,
in part, upon estimates of future sublease income. We have used
the following factors, among others, in making such estimates:
opinions of independent real estate experts, current market
conditions and rental rates, an assessment of the time period
over which reasonable estimates could be made, the status of
negotiations with potential subtenants, and the location of the
respective facilities. We recorded the low-end of a range of
assumptions modeled for restructuring charges, in accordance
with SFAS 5. Adjustments to the facilities accrual will be
required if actual sublease income differs from amounts
currently expected. We will review the status of restructuring
activities on a quarterly basis and, if appropriate, record
changes to our restructuring obligations in current operations
based on managements most current estimates.
Cash
and Cash Equivalents
We consider all debt and equity securities with maturities of
three months or less at the date of purchase to be cash
equivalents. Our short-term investments consist of debt and
equity securities that are classified as
available-for-sale.
Our debt securities are carried at fair value with related
unrealized gains or losses reported as other comprehensive
income (loss), net of tax.
38
Our cash, and cash equivalents, at cost, which approximates fair
value, consisted of the following as of March 31, 2006 (in
thousands, unaudited)
|
|
|
|
|
|
|
Fair Value
|
|
|
Cash and certificates of deposits
|
|
$
|
9,816
|
|
Money market
|
|
|
828
|
|
|
|
|
|
|
Total cash and equivalents
|
|
$
|
10,644
|
|
|
|
|
|
|
Our cash and cash equivalents, at cost, which approximates fair
value, consisted of the following as of December 31, 2005
(in thousands):
|
|
|
|
|
|
|
Fair Value
|
|
|
Cash and certificates of deposits
|
|
$
|
4,030
|
|
Money market
|
|
|
819
|
|
|
|
|
|
|
Total cash and equivalents
|
|
$
|
4,849
|
|
Concentrations
of Credit Risk
Financial assets that potentially subject us to significant
concentrations of credit risk consist principally of cash, cash
equivalents, and trade accounts receivable. We maintain our cash
and cash equivalents with two separate financial institutions.
We market and sell our products throughout the world and perform
ongoing credit evaluations of our customers. We maintain
reserves for potential credit losses. For the three months ended
March 31, 2006, no one customer accounted for more than 10%
of total revenue or accounts receivable.
Fair
Value of Financial Instruments
Our financial instruments consist of cash equivalents, accounts
receivable, accounts payable and debt. We do not have any
derivative financial instruments. We believe the reported
carrying amounts of its financial instruments approximates fair
value, based upon the short maturity of cash equivalents,
accounts receivable and payable, and based on the current rates
available to it on similar debt issues.
Foreign
Currency
We license our products and maintain significant operations in
foreign countries. Fluctuations in the value of foreign
currencies, principally the Euro, relative to the United States
dollar have impacted our operating results in the past and may
do so in the future. We expect that international license,
maintenance and consulting revenues will continue to account for
a significant portion of our total revenues in the future. We
pay the expenses of our international operations in local
currencies and do not currently engage in hedging transactions
with respect to such obligations.
Equity
Investments
Our equity investments consist of investments in public and
non-public companies that are accounted for under the cost
method of accounting. Equity investments are accounted for under
the cost method of accounting when we have a minority interest
and do not have the ability to exercise significant influence.
These investments are classified as available for sale and are
carried at fair value when readily determinable market values
exist or at cost when such market values do not exist.
Adjustments to fair value are recorded as a component of other
comprehensive income unless the investments are considered
permanently impaired in which case the adjustment is recorded as
a component of other income (expense), net in the condensed
consolidated statement of operations. We had no long-term equity
investments in public and non-public companies as of
March 31, 2006. There was not any other than
temporary write-down during the three months ended
March 31, 2006 related to long-term equity investments.
39
Legal
Matters
Our current estimated range of liability related to pending
litigation is based on claims for which it is probable that a
liability has been incurred and we can estimate the amount and
range of loss. We have recorded the minimum estimated liability
related to those claims, where there is a range of loss. We do
not believe the ultimate resolution of these matters will have a
material adverse impact on our financial position or results of
operations. As additional information becomes available, we will
assess the potential liability related to its pending litigation
and revise our estimates, if necessary.
Three
Months Ended March 31, 2006 compared to Three Months Ended
March 31, 2005 (unaudited)
Statement
of Operations as a Percent of Total Revenues
The following table sets forth certain items reflected in our
consolidated statements of operations expressed as a percent of
total revenues for the three months ended March 31:
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|
|
|
|
|
|
|
|
|
|
Three Months
|
|
|
|
Ended
|
|
|
|
March 31,
|
|
|
|
2005
|
|
|
2006
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
Software licenses
|
|
|
27
|
%
|
|
|
23
|
%
|
Services
|
|
|
73
|
|
|
|
77
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
100
|
|
|
|
100
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
Cost of software licenses
|
|
|
|
|
|
|
|
|
Cost of services
|
|
|
37
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
36
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
64
|
|
|
|
67
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
26
|
|
|
|
21
|
|
Sales and marketing
|
|
|
36
|
|
|
|
19
|
|
General and administrative
|
|
|
15
|
|
|
|
13
|
|
Business combination costs
|
|
|
|
|
|
|
|
|
Restructuring charge (credit)
|
|
|
(4
|
)
|
|
|
4
|
|
Impairment of goodwill and other
intangibles
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
73
|
|
|
|
57
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(9
|
)
|
|
|
10
|
|
Other (expense) income, net
|
|
|
42
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
Earnings (loss) before provision
for income taxes
|
|
|
33
|
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
40
Results
of Operations for the Three Months ended March 31, 2006
versus 2005
Revenues
Total revenues decreased 23% during the three months
ended March 31, 2006 to $12.6 million as compared to
$16.4 million for the three months ended March 31,
2005. A summary of our revenues by geographic region is as
follows (dollars in thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Licenses
|
|
|
%
|
|
|
Services
|
|
|
%
|
|
|
Total
|
|
|
%
|
|
|
Three Months Ended:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Americas
|
|
$
|
1,914
|
|
|
|
43
|
%
|
|
$
|
6,724
|
|
|
|
56
|
%
|
|
$
|
8,638
|
|
|
|
53
|
%
|
Europe
|
|
|
1,706
|
|
|
|
39
|
|
|
|
4,212
|
|
|
|
35
|
|
|
|
5,918
|
|
|
|
36
|
|
Asia Pacific
|
|
|
796
|
|
|
|
18
|
|
|
|
1,015
|
|
|
|
9
|
|
|
|
1,811
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
4,416
|
|
|
|
100
|
%
|
|
$
|
11,951
|
|
|
|
100
|
%
|
|
$
|
16,367
|
|
|
|
100
|
%
|
March 31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Americas
|
|
$
|
2,265
|
|
|
|
79
|
%
|
|
$
|
7,754
|
|
|
|
80
|
%
|
|
$
|
10,019
|
|
|
|
79
|
%
|
Europe
|
|
|
346
|
|
|
|
12
|
|
|
|
925
|
|
|
|
9
|
|
|
|
1,271
|
|
|
|
10
|
|
Asia Pacific
|
|
|
271
|
|
|
|
9
|
|
|
|
1,063
|
|
|
|
11
|
|
|
|
1,334
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
2,882
|
|
|
|
100
|
%
|
|
$
|
9,742
|
|
|
|
100
|
%
|
|
$
|
12,624
|
|
|
|
100
|
%
|
We operate in a competitive industry. There have been declines
in both the technology industry and in general economic
conditions since the beginning of 2001. These declines may
continue. Financial comparisons discussed herein may not be
indicative of future performance.
Software license revenues decreased 34% during the three
months ended March 31, 2006 to $2.9 million as
compared to $4.4 million for the three months ended
March 31, 2005. License revenue in all areas declined due
to the selling challenges created by our deteriorating financial
condition.
Services revenues consisting of consulting revenues,
customer training revenues and maintenance revenues decreased
19% during the three months ended March 31, 2006 to
$9.7 million as compared to $12.0 million for the
three months ended March 31, 2005. The decrease in service
revenues was attributable to both lower maintenance and
consulting revenues. Maintenance revenues decreased 13% for the
three months ended March 31, 2005 to $5.9 million as
compared to $6.8 million for the three months ended
March 31, 2005. Maintenance revenue decreased due to a
decline in customer licenses and certain existing customers
declining the renewal of annual maintenance services. Consulting
revenues decreased 25% for the three months ended March 31,
2006 to $3.8 million as compared to $5.1 million for
the three months ended March 31, 2005. Consulting revenues
decreased as a result of software license revenue decline.
Cost of
Revenues
Cost of software license revenues includes the costs of product
media, duplication, packaging and other manufacturing costs, as
well as royalties payable to third parties for software that is
either embedded in, or bundled and licensed with, our products.
Cost of services consists primarily of employee-related costs,
third-party consultant fees incurred on consulting projects,
post-contract customer support and instructional training
services. A summary of our cost of revenues is as follows
(dollars in thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2005
|
|
|
%
|
|
|
2006
|
|
|
%
|
|
|
Cost of (credit for) software
licenses(1)
|
|
$
|
(57
|
)
|
|
|
(1
|
)%
|
|
|
62
|
|
|
|
1
|
%
|
Cost of services(2)
|
|
|
5,980
|
|
|
|
37
|
|
|
|
4,058
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues(3)
|
|
|
5,923
|
|
|
|
36
|
|
|
|
4,120
|
|
|
|
33
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Percentages are calculated based on total software license
revenues for the period indicated |
41
|
|
|
(2) |
|
Percentages are calculated based on total services revenues for
the period indicated |
|
(3) |
|
Percentages are calculated based on total revenues for the
period indicated |
Cost of (credit for) software licenses increased in
absolute dollar terms during the three months ended
March 31, 2006 to $62,000 as compared to $(57,000) for the
three months ended March 31, 2005. This increase was
primarily due to the reversal of some royalty costs no longer
considered payable in the quarter ended March 31, 2005.
Cost of services decreased $1.8 million in absolute
dollar terms during the three months ended March 31, 2006
to $4.1 million as compared to $5.9 million for the
three months ended March 31, 2005. This decline was
attributable to lower consulting headcount in Europe and the
Middle East regions and lower customer support headcount in the
Americas, as well as decreased revenue. This was partially
offset by an increase in consulting spending in the Americas.
Gross margin increased to 67% during the three months
ended March 31, 2006 from 64% for the three months ended
March 31, 2005. The increase is a result of the
Companys restructuring and cost control plans.
Operating
Expenses and Other Income, net
Operating expenses consists of the following:
|
|
|
|
|
Research and development expenses consist primarily of
salaries, employee-related benefit costs and consulting fees
incurred in association with the development of our products.
Costs incurred for the research and development of new software
products are expensed as incurred until such time that
technological feasibility, in the form of a working model, is
established at which time such costs are capitalized and
recorded at the lower of unamortized cost or net realizable
value. The costs incurred subsequent to the establishment of a
working model but prior to general release of the product have
not been significant. date, we have not capitalized any costs
related to the development of software for external use.
|
|
|
|
Sales and marketing expenses consist primarily of
salaries, employee-related benefit costs, commissions and other
incentive compensation, travel and entertainment and marketing
program-related expenditures such as collateral materials, trade
shows, public relations, advertising, and creative services.
|
|
|
|
General and administrative expenses consist primarily of
salaries, employee-related benefit costs, provisions and credits
related to uncollectible accounts receivable and professional
service fees.
|
|
|
|
Restructuring charges represent costs incurred to
restructure company operations. These charges, including charges
for excess facilities, severance and certain non-cash items,
were recorded under the provisions of
EITF 94-3,
and SFAS 146.
|
A summary of operating expenses is set forth in the following
table. The percentage of expenses is calculated based on total
revenues (dollars in thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2005
|
|
|
%(1)
|
|
|
2006
|
|
|
%(1)
|
|
|
Research and development
|
|
$
|
4,287
|
|
|
|
26
|
%
|
|
|
2,631
|
|
|
|
21
|
%
|
Sales and marketing
|
|
|
5,811
|
|
|
|
36
|
|
|
|
2,381
|
|
|
|
19
|
|
General and administrative
|
|
|
2,535
|
|
|
|
15
|
|
|
|
1,738
|
|
|
|
13
|
|
Restructuring charges
|
|
|
(704
|
)
|
|
|
(4
|
)
|
|
|
490
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
11,929
|
|
|
|
73
|
|
|
|
7,240
|
|
|
|
57
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Expressed as a percent of total revenues for the period indicated |
Research and development expenses decreased 39% during
the three months ended March 31, 2006 to $2.7 million
as compared to $4.3 million for the three months ended
March 31, 2005. The decrease in research and development
expenses was primarily attributable to reduced headcount as a
result of layoffs, natural attrition and lower overhead
allocations.
42
Sales and marketing expenses decreased 59% during the
three months ended March 31, 2006 to $2.4 million as
compared to $5.8 million for the three months ended
March 31, 2005. The decreases were primarily attributable
to reduction in the sales organization combined with lower
commissions on lower license revenue.
General and administrative expenses decreased 31% during
the three months ended March 31, 2006 to $1.7 million
as compared to $2.5 million for the three months ended
March 31, 2005. The decrease was primarily attributable to
a layoffs, natural attrition and function consolidations.
Restructuring charges. Through March 31,
2006, we have approved restructuring plans to, among other
things, reduce our workforce and consolidate facilities.
Restructuring and asset impairment charges were taken to align
our cost structure with changing market conditions and to create
a more efficient organization. Our restructuring charges are
comprised primarily of: (i) severance and benefits
termination costs related to the reduction of our workforce;
(ii) lease termination costs
and/or costs
associated with permanently vacating our facilities;
(iii) other incremental costs incurred as a direct result
of the restructuring plan; and (iv) impairment costs
related to certain long-lived assets abandoned. We account for
each of these costs in accordance with SAB 100.
As of March 31, 2006, the total restructuring accrual of
$6.9 million consisted of the following (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
|
|
|
Non-Current
|
|
|
Total
|
|
|
Severance and Termination
|
|
$
|
0.4
|
|
|
$
|
|
|
|
$
|
0.4
|
|
Excess Facilities
|
|
|
5.0
|
|
|
|
1.5
|
|
|
|
6.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
5.4
|
|
|
$
|
1.5
|
|
|
$
|
6.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We estimate that the $0.4 million severance and termination
accrual will be nearly paid in full by December 31, 2006.
We expect to pay the excess facilities amounts related to
restructured or abandoned leased space as follows (in millions):
|
|
|
|
|
|
|
Total Future
|
|
|
|
Minimum
|
|
Years Ending December 31,
|
|
Payments
|
|
|
2006
|
|
|
4.8
|
|
2007
|
|
|
0.7
|
|
2008
|
|
|
0.4
|
|
2009
|
|
|
0.4
|
|
2010
|
|
|
0.2
|
|
|
|
|
|
|
Total minimum facilities payments
|
|
$
|
6.5
|
|
|
|
|
|
|
The following table summarizes the activity related to the
restructuring plans initiated subsequent to December 31,
2002, and accounted for in accordance with SFAS 146 (in
thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts
|
|
|
|
|
|
|
|
|
|
Accrued
|
|
|
Charged to
|
|
|
|
|
|
|
|
|
|
Restructuring
|
|
|
Restructuring
|
|
|
|
|
|
Accrued
|
|
|
|
Costs
|
|
|
Costs
|
|
|
Amounts Paid
|
|
|
Restructuring
|
|
|
|
Beginning
|
|
|
and Other
|
|
|
or Written Off
|
|
|
Costs, Ending
|
|
|
Three Months Ended
March 31, 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
21,824
|
|
|
$
|
(631
|
)
|
|
$
|
(17,347
|
)
|
|
$
|
3,846
|
|
Termination payments to employees
and related costs
|
|
|
365
|
|
|
|
(95
|
)
|
|
|
(155
|
)
|
|
|
115
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
22,189
|
|
|
$
|
(726
|
)
|
|
$
|
(17,502
|
)
|
|
$
|
3,961
|
|
Three Months Ended
March 31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
4,188
|
|
|
$
|
108
|
|
|
$
|
|
|
|
$
|
4,296
|
|
Termination payments to employees
and related costs
|
|
|
105
|
|
|
|
374
|
|
|
|
(376
|
)
|
|
|
103
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,293
|
|
|
$
|
482
|
|
|
$
|
(376
|
)
|
|
$
|
4,399
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43
The following table summarizes the activity related to the
restructuring plans initiated on or prior to December 31,
2002, and accounted for in accordance with
EITF 94-3
(in thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts
|
|
|
|
|
|
|
|
|
|
Accrued
|
|
|
Charged to
|
|
|
|
|
|
|
|
|
|
Restructuring
|
|
|
Restructuring
|
|
|
|
|
|
Accrued
|
|
|
|
Costs,
|
|
|
Costs
|
|
|
Amounts Paid
|
|
|
Restructuring
|
|
|
|
Beginning
|
|
|
and Other
|
|
|
or Written Off
|
|
|
Costs, Ending
|
|
|
Three Months Ended
March 31, 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
11,515
|
|
|
$
|
22
|
|
|
$
|
(2,666
|
)
|
|
$
|
8,871
|
|
Termination payments to employees
and related costs
|
|
|
459
|
|
|
|
|
|
|
|
(14
|
)
|
|
|
445
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
11,974
|
|
|
$
|
22
|
|
|
$
|
(2,680
|
)
|
|
$
|
9,316
|
|
Three Months Ended
March 31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
|
2,651
|
|
|
|
8
|
|
|
|
(436
|
)
|
|
|
2,223
|
|
Termination payments to employees
and related costs
|
|
|
311
|
|
|
|
|
|
|
|
8
|
|
|
|
319
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,962
|
|
|
|
8
|
|
|
|
(428
|
)
|
|
|
2,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company has based its excess facilities accrual, in part,
upon estimates of future sublease income. The Company has used
the following factors, among others, in making such estimates:
opinions of independent real estate experts, current market
conditions and rental rates, an assessment of the time period
over which reasonable estimates could be made, the status of
negotiations with potential subtenants, and the location of the
respective facilities. The Company has recorded the low-end of a
range of assumptions modeled for restructuring charges, in
accordance with SFAS 5. Adjustments to the facilities
accrual will be required if actual sublease income differs from
amounts currently expected. The Company will review the status
of restructuring activities on a quarterly basis and, if
appropriate, record changes to our restructuring obligations in
current operations based on managements most current
estimates.
Interest income, net was income of $107,000 for the three
months ended March 31, 2006 as compared to expense of
$1.7 million for the three months ended March 31,
2005. Interest expense decreased in the first quarter of 2006
due to the Note Conversion.
(Loss) gain on revaluation of warrants and change in value of
derivatives was a loss of $370,000 for the three months
ended March 31, 2006 as compared to a gain of
$8.0 million for the three months ended March 31,
2005. The decrease was primarily because the Company entered an
agreement in December 2005 to cancel the Notes in exchange for
common stock; therefore there was no amortization associated
with the Notes.
Other (expense) income, net, was an expense of $36,000
for the three months ended March 31, 2006 as compared to
income of $598,000 for the three months ended March 31,
2005. The income in the three months ended March 31, 2005
was primarily due to recognition of gains on the disposition of
equity investments.
(Provision) benefit for Income Taxes, was a provision of
$156,000 for the three months ended March 31, 2006. The
expenses related to Alternative Minimum Taxes (AMT) calculated
at both Federal and state levels after net operating loss (NOL)
carryforwards have been applied. For the three months ended
March 31, 2005, we recorded a tax benefit of
$2.0 million related to the reversal of certain income tax
accruals determined during the first quarter to be no longer
required.
Liquidity
and Capital Resources
Background
and Overview
At March 31, 2006, the Companys current liabilities
exceeded current assets by approximately $13.2 million
(negative working capital) resulting in a working capital ratio
of approximately 0.66 to 1.0. At December 31, 2005, our
current liabilities exceeded our current assets by approximately
$35.9 million (negative working capital) resulting in a
working capital ratio of approximately 0.35 to 1.0. As of
December 31, 2005, cash, cash equivalents,
44
and restricted cash and investments totaled $4.8 million,
which represents a decrease of $37.1 million as compared to
a balance of $41.9 million on December 31, 2004. This
decrease was primarily attributable to the payment of lease
settlement obligations, payments of debt-related obligations and
net cash used for operations during the year ended
December 31, 2005. Based on our current liquidity position,
our analysis of the components of our current assets and
liabilities, our actual financial results for the first quarter
of 2006 and our internal financial forecast for the balance of
the year, we currently expect to be able to fund our working
capital requirements through at least the end of 2006 from our
existing cash and cash equivalents and our anticipated cash
flows from operations and subleases. Our Chairman, Chief
Executive Officer and majority stockholder has committed to
provide, upon our request at any time through December 31,
2006, up to $5 million of working capital support through
cash, debt guarantees or a combination thereof on mutually
satisfactory terms. Accordingly, no adjustments have been made
to the carrying values or classification of the assets and
liabilities in the accompanying financial statements to take
account of any uncertainty as to our ability to continue as a
going concern.
Our capital requirements relate primarily to facilities,
employee infrastructure and working capital needs. Historically,
the Company has funded its cash requirements primarily through
public and private sales of equity and debt securities, and
commercial credit facilities. As of March 31, 2006, cash,
cash equivalents, and restricted cash and investments totaled
$10.6 million, which represents an increase of
$5.8 million as compared to a balance of $4.8 million
on December 31, 2005. This increase was primarily
attributable to net cash generated from operations during the
three months ended March 31, 2006.
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
|
(Unaudited)
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
10,644
|
|
|
$
|
4,849
|
|
Restricted cash and investments,
net of current portion
|
|
$
|
1,796
|
|
|
$
|
1,997
|
|
Working capital (deficit)
|
|
$
|
(13,214
|
)
|
|
$
|
(35,872
|
)
|
Working capital ratio
|
|
|
0.66
|
|
|
|
0.35
|
|
Commitments totaling $2.0 million in the form of standby
letters of credit were issued on our behalf from financial
institutions as of March 31, 2006 and December 31,
2005, respectively, primarily in favor of our various landlords
to secure obligations under our facility leases. Accordingly,
$1.8 million and $2.0 million have been presented as
restricted cash in the accompanying Condensed Consolidated
Balance Sheets at March 31, 2006 and December 31,
2005, respectively.
Our exposure to market risk for changes in interest rates
relates primarily to our investment portfolio. We had no
derivative financial instruments as of March 31, 2006 and
December 31, 2005. We place our investments in instruments
that meet high credit quality standards and the amount of credit
exposure to any one issue, issuer and type of instrument is
limited. Our interest rate risk related to borrowings
historically has been minimal as interest expense related to
adjustable rate borrowings has been immaterial for the three
months ended March 31, 2006 and 2005.
Cash
Provided By (Used For) Operating Activities
Cash provided by operating activities was $5.9 million for
the three months ended March 31, 2006. The primary reason
for the net cash provided by operating activities was
$5.4 million of unearned revenue and deferred maintenance
revenue received in the quarter as a result of our receipt of
customer payments prior to the time we have performed all
material obligations to be performed by us as under the
applicable agreement and the Company received payment of
$5.0 million from one customer. Other significant
adjustments to reconcile net loss to cash provided by operating
activities included net increases in accounts receivable and
decreases in accounts payable aggregating approximately
$1.4 million.
Cash used for operating activities was $25.3 million for
the three months ended March 31, 2005. The primary reason
for the net cash used by operating activities was due to the
payment of accrued liabilities related to restructuring of
$20.9 million, offset by net income of $7.4 million.
Other significant adjustments to reconcile net income to cash
used for operating activities included the non-cash gain on sale
of cost method investments of
45
$1.2 million, the non-cash release of income tax reserves
of $2.0 million, accounts payable and accrued expenses of
$2.3 million, and the gain on revaluation of warrants to
fair value of $8.0 million.
Cash
Provided By (Used For) Investing Activities
Cash used in investing activities was $21,000 for the three
months ended March 31, 2006 and was due to purchase of
property and equipment. Cash provided by investing activities
was $20.5 million for the three months ended March 31,
2005 and was primarily due to transfers from restricted cash of
$19.1 million and proceeds from dividends of
$1.1 million. Our capital expenditures consisted of
purchases of operating resources to manage our operations and
consisted primarily of computer hardware and software.
Cash
(Used For) Provided By Financing Activities
Cash used in financing activities was $112,000 for the three
months ended March 31, 2006, mainly as a result paying down
bank term debt. Cash provided by financing activities was
$120,000 for the three months ended March 31, 2005,
consisting mainly of $370,000 in proceeds from the issuance of
common stock to offset net payment to convertible notes of
$250,000.
Leases
and Other Contractual Obligations
We lease our headquarters facility and our other facilities
under non-cancelable operating lease agreements expiring through
the year 2012. Under the terms of the agreements, we are
required to pay lease costs, property taxes, insurance and
normal maintenance costs.
A summary of total future minimum lease payments as of
March 31, 2006, under noncancelable operating lease
agreements, is as follows (in millions):
|
|
|
|
|
|
|
Operating
|
|
Years Ending December 31,
|
|
Leases
|
|
|
2006
|
|
$
|
3.0
|
|
2007
|
|
|
3.9
|
|
2008
|
|
|
2.1
|
|
2009
|
|
|
2.1
|
|
2010 and thereafter
|
|
|
4.1
|
|
|
|
|
|
|
Total minimum lease payments
|
|
$
|
15.2
|
|
|
|
|
|
|
Restricted cash represents collateral for letters of credit, all
of which are due to mature within one year.
Year
Ended December 31, 2005 compared to the Year Ended
December 31, 2004 compared to the Year Ended
December 31, 2003.
Statement
of Operations as a Percent of Total Revenues
The following table sets forth certain items reflected in our
consolidated statements of operations expressed as a percent of
total revenues for the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Software licenses
|
|
|
34
|
%
|
|
|
34
|
%
|
|
|
24
|
%
|
Services
|
|
|
66
|
|
|
|
66
|
|
|
|
76
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
|
|
|
|
(restated)
|
|
|
|
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of software licenses
|
|
|
3
|
|
|
|
2
|
|
|
|
|
|
Cost of services
|
|
|
29
|
|
|
|
32
|
|
|
|
36
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
32
|
|
|
|
34
|
|
|
|
36
|
|
Gross profit
|
|
|
68
|
|
|
|
66
|
|
|
|
64
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
24
|
|
|
|
23
|
|
|
|
23
|
|
Sales and marketing
|
|
|
30
|
|
|
|
35
|
|
|
|
27
|
|
General and administrative
|
|
|
11
|
|
|
|
12
|
|
|
|
16
|
|
Litigation settlement costs
|
|
|
5
|
|
|
|
|
|
|
|
|
|
Goodwill and intangible
amortization
|
|
|
1
|
|
|
|
|
|
|
|
52
|
|
Restructuring charge
|
|
|
40
|
|
|
|
(30
|
)
|
|
|
(1
|
)
|
Impairment of assets
|
|
|
|
|
|
|
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
111
|
|
|
|
40
|
|
|
|
122
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(43
|
)
|
|
|
26
|
|
|
|
(58
|
)
|
Other (expense) income, net
|
|
|
3
|
|
|
|
(3
|
)
|
|
|
(11
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision for
income taxes
|
|
|
(40
|
)
|
|
|
23
|
|
|
|
(69
|
)
|
Provision for income taxes
|
|
|
|
|
|
|
1
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
(40
|
)%
|
|
|
24
|
%
|
|
|
(65
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Results
of Operations for the Years ended December 31, 2005 as
compared to 2004 and 2003
Revenues
A summary of our revenues by geographic region is as follows
(dollars in thousands, unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software
|
|
|
%
|
|
|
Services
|
|
|
%
|
|
|
Total
|
|
|
%
|
|
|
|
(Dollars in thousands)
|
|
|
Year Ended December 31,
2003:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Americas
|
|
$
|
14,435
|
|
|
|
48
|
|
|
$
|
30,700
|
|
|
|
53
|
|
|
$
|
45,135
|
|
|
|
51
|
|
Europe
|
|
|
11,725
|
|
|
|
39
|
|
|
|
23,733
|
|
|
|
41
|
|
|
|
35,458
|
|
|
|
40
|
|
Asia/Pacific
|
|
|
4,070
|
|
|
|
13
|
|
|
|
3,418
|
|
|
|
6
|
|
|
|
7,488
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
30,230
|
|
|
|
100
|
|
|
$
|
57,851
|
|
|
|
100
|
|
|
$
|
88,081
|
|
|
|
100
|
|
Year Ended December 31,
2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Americas
|
|
$
|
9,545
|
|
|
|
36
|
|
|
$
|
27,733
|
|
|
|
54
|
|
|
$
|
37,278
|
|
|
|
48
|
|
Europe
|
|
|
13,894
|
|
|
|
52
|
|
|
|
19,427
|
|
|
|
38
|
|
|
|
33,321
|
|
|
|
43
|
|
Asia/Pacific
|
|
|
3,444
|
|
|
|
12
|
|
|
|
3,961
|
|
|
|
8
|
|
|
|
7,405
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
26,883
|
|
|
|
100
|
|
|
$
|
51,121
|
|
|
|
100
|
|
|
$
|
78,004
|
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
2005:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Americas
|
|
$
|
7,615
|
|
|
|
52
|
|
|
$
|
26,713
|
|
|
|
59
|
|
|
$
|
34,328
|
|
|
|
57
|
|
Europe
|
|
|
4,918
|
|
|
|
33
|
|
|
|
15,310
|
|
|
|
34
|
|
|
|
20,228
|
|
|
|
34
|
|
Asia/Pacific
|
|
|
2,188
|
|
|
|
15
|
|
|
|
3,377
|
|
|
|
7
|
|
|
|
5,565
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
14,721
|
|
|
|
100
|
%
|
|
$
|
45,400
|
|
|
|
100
|
%
|
|
$
|
60,121
|
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47
Revenues
Total revenues for the year ended December 31, 2005 were
$60.1 million, down $17.9 million, or 23%, from
$78.0 million for the prior year. License revenue from the
sales of software licenses declined from $26.9 million to
$14.7 million due to fewer license transactions, in part
due to uncertainty among current and potential customers about
our long-term financial viability. Maintenance revenue, which is
generally derived from maintenance contracts sold with initial
customer licenses and from subsequent contract renewals,
declined from $31.2 million to $26.3 million due to
certain customers choosing to not fully renew maintenance
contracts, together with the decline in new license revenue.
Consulting revenue, which is generally related to services in
connection with our licensed software, declined from
$19.9 million to $19.1 million, primarily due to lower
employee and third-party contractor headcount and the resulting
decline in capacity.
Total revenues for the year ended December 31, 2004 were
$78.0 million, down $10.1 million, or 11%, from
$88.1 million for the prior year. This decline consisted of
a decrease in software license revenue of $3.3 million, or
11%, and a decrease in services revenue of $6.7 million, or
12%. The fiscal 2004 decrease in software license revenues was
primarily attributable to continued weakness in the information
technology market due to economic uncertainties throughout 2004.
The decrease in services revenue consisted of decreases in both
maintenance and support ($4.6 million) and consulting
services revenue ($2.1 million). These decreases were a
result of a corresponding decline in software license revenues
and of weak economic conditions during the fiscal year.
Total revenues for the year ended December 31, 2003 were
$88.1 million, down $27.8 million, or 24%, from
$115.9 million for the prior year. This decline consisted
of a decrease in software license revenue of $10.3 million,
or 25%, and a decrease in services revenue of
$17.6 million, or 23%. The fiscal 2003 decrease in software
license revenues was primarily attributable to continued
weakness in the information technology market due to economic
uncertainties throughout 2003. The decrease in services revenue
consisted of decreases in both maintenance and support
($2.9 million) and consulting services revenue
($14.7 million). These decreases were a result of a
corresponding decline in software license revenues and of weak
economic conditions during the fiscal year.
Cost of
Revenues
Cost of (credit for) software licenses includes the net costs of
product media, duplication, packaging and other manufacturing
costs as well as royalties payable to third parties for software
that is either embedded in, or bundled and sold with, our
products.
Cost of services consists primarily of employee-related costs,
third-party consultant fees incurred on consulting projects,
post-contract customer support and instructional training
services.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2005
|
|
|
%
|
|
|
2004
|
|
|
%
|
|
|
2003
|
|
|
%
|
|
|
|
(Dollars in thousands)
|
|
|
Cost of (credit for) software
licenses(1)
|
|
$
|
(38
|
)
|
|
|
|
%
|
|
$
|
1,303
|
|
|
|
5
|
%
|
|
$
|
2,561
|
|
|
|
8
|
%
|
Cost of services(2)
|
|
|
21,931
|
|
|
|
48
|
|
|
|
24,978
|
|
|
|
49
|
|
|
|
25,708
|
|
|
|
44
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues(3)
|
|
$
|
21,893
|
|
|
|
36
|
%
|
|
$
|
26,281
|
|
|
|
34
|
%
|
|
$
|
28,269
|
|
|
|
32
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Percentage is calculated based on total software license
revenues for the period indicated. |
|
(2) |
|
Percentage is calculated based on total services revenues for
the period indicated. |
|
(3) |
|
Percentage is calculated based on total revenues for the period
indicated. |
Cost of (credit for) software licenses for the year ended
December 31, 2005, decreased $1.3 million, or over
100%, on a
year-over-year
basis. Cost of software licenses as a percent of license
revenues was 0% in 2005 as compared to 5% in 2004. The decrease
in absolute dollars is a result of decreased license revenues, a
decreased proportion of license revenues generated from
royalty-bearing products and certain credits related to accruals
determined to no longer be necessary.
48
Cost of software licenses for the year ended December 31,
2004, decreased $1.3 million, or 49%, on a
year-over-year
basis. Cost of software licenses as a percent of license
revenues was 5% in 2004 as compared to 8% in 2003. The decrease
in absolute dollars is a result of decreased license revenues.
Cost of software licenses for the year ended December 31,
2003 decreased $5.6 million, or 69%, on a
year-over-year
basis. Cost of software licenses as a percent of license
revenues was 8% in 2003 as compared to 20% in 2002. The decrease
in absolute dollars is a result of decreased license revenues,
including revenue generated from our products that embed or
include third-party products. During the fourth quarter of
fiscal year 2002, we recorded a provision of $3.2 million
related to prepaid royalties for software we no longer intended
to utilize.
Cost of services for the year ended December 31, 2005
decreased $3.0 million, or 12%, on a
year-over-year
basis. Cost of services as a percent of services revenues was
48% in 2005 as compared to 49% in 2004. The decrease in absolute
dollar terms was the result of the reduction in consulting
headcount and third-party consultant costs that occurred during
the 2005 fiscal year. The decrease as a percent of services
revenue is due to certain staffing efficiencies gained during
the year.
Cost of services for the year ended December 31, 2004
decreased $0.7 million, or 3%, on a
year-over-year
basis. Cost of services as a percent of services revenues was
49% in 2004 as compared to 44% in 2003. The decrease in absolute
dollar terms during 2004 as compared to 2003 was the result of
reductions in consulting headcount and third-party consultant
costs that occurred during the 2004 fiscal year. The increase as
a percent of services revenue is due to higher outsourcing
costs, due in part to turnover in senior project positions.
Cost of services for the year ended December 31, 2003
decreased $13.2 million, or 34%, on a
year-over-year
basis. Cost of services as a percent of services revenues was
44% in 2003 as compared to 52% in 2002. The decreases in
absolute dollar terms and as a percentage of revenue during 2003
as compared to 2002 were the result of reductions in consulting
headcount and third-party consultant costs that occurred during
the 2003 fiscal year.
The number of total consulting employees was 50 as of
December 31, 2005, 77 as of December 31, 2004, and 98
as of December 31, 2003.
Operating
Expenses
Operating expenses consist of the following:
|
|
|
|
|
Research and development expenses consist primarily of
salaries, employee-related benefit costs and consulting fees
incurred in association with the development of our products.
Costs incurred for the research and development of new software
products are expensed as incurred until such time that
technological feasibility, in the form of a working model, is
established at which time such costs are capitalized and
recorded at the lower of unamortized cost or net realizable
value. The costs incurred subsequent to the establishment of a
working model but prior to general release of the product have
not been significant. To date, we have not capitalized any costs
related to the development of software for external use.
|
|
|
|
|
|
Sales and marketing expenses consist primarily of
salaries, employee-related benefit costs, commissions and other
incentive compensation, travel and entertainment and marketing
program-related expenditures such as collateral materials, trade
shows, public relations, advertising and creative services.
|
|
|
|
|
|
General and administrative expenses consist primarily of
salaries, employee-related benefit costs, provisions and credits
related to uncollectible accounts receivable and professional
service fees.
|
|
|
|
Litigation settlement costs consist of costs incurred to
settle pending or threatened litigation matters.
|
|
|
|
|
|
Goodwill and intangible write-offs and amortization
represents costs to write-off or amortize goodwill and other
intangible assets. As of January 1, 2002, we no longer
amortize goodwill or the assembled workforce as we have
identified the assembled workforce as an intangible asset that
does not meet the criteria of a recognizable intangible asset as
defined by SFAS 142.
|
|
|
|
|
|
Restructuring (reversals) charges represent costs
incurred to restructure our operations. These charges, including
charges for excess facilities, severance and certain non-cash
items, were recorded under the provisions of
EITF 94-3,
and SFAS 146.
|
49
|
|
|
|
|
Business combination charges represent costs incurred in
connection with merger or acquisition activity.
|
A summary of operating expenses is set forth in the following
table (dollars in thousands, percentages are based on total
revenues):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2005
|
|
|
%
|
|
|
2004
|
|
|
%
|
|
|
2003
|
|
|
%
|
|
|
Research and development
|
|
$
|
13,831
|
|
|
|
23
|
%
|
|
$
|
18,024
|
|
|
|
23
|
%
|
|
$
|
21,067
|
|
|
|
24
|
%
|
Sales and marketing
|
|
|
16,208
|
|
|
|
27
|
|
|
|
27,340
|
|
|
|
35
|
|
|
|
26,394
|
|
|
|
30
|
|
General and administrative
|
|
|
9,479
|
|
|
|
16
|
|
|
|
9,538
|
|
|
|
12
|
|
|
|
9,790
|
|
|
|
11
|
|
Litigation settlement costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,250
|
|
|
|
5
|
|
Goodwill write-offs and
amortization
|
|
|
31,368
|
|
|
|
52
|
|
|
|
|
|
|
|
|
|
|
|
886
|
|
|
|
1
|
|
Restructuring (reversals) charges
|
|
|
(462
|
)
|
|
|
(1
|
)
|
|
|
(23,545
|
)
|
|
|
(30
|
)
|
|
|
35,356
|
|
|
|
40
|
|
Business combination charges
|
|
|
2,817
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
73,241
|
|
|
|
122
|
%
|
|
$
|
31,357
|
|
|
|
40
|
%
|
|
$
|
97,743
|
|
|
|
111
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development. Research and
development expenses decreased $4.2 million, or 23% in 2005
compared to 2004, $3.0 million, or 14%, in 2004 compared to
2003, and $20.4 million, or 49%, in 2003 compared to 2002.
The decreases in all years were primarily attributable to
reductions in staffing levels resulting in decreased salary and
salary related costs, as well as other cost-cutting efforts
taken as part of our restructuring plan, such as the
consolidation of facilities.
Sales and marketing. Sales and marketing
expenses decreased $11.1 million, or 41% in 2005 compared
to 2004, increased $1.0 million, or 4%, in 2004 compared to
2003, and decreased $22.5 million, or 46%, in 2003 compared
to 2002. Sales and marketing expenses increased in 2004 due to
the launch of our latest product, BroadVision Process. In 2005
and 2003, sales and marketing expenses decreased primarily due
to decreased salary expense as a result of reductions in force,
decreased variable compensation due to lower revenues, and
decreased facility, travel and marketing program costs as a
result of various cost-cutting actions.
General and administrative. General and
administrative expenses decreased less than 1% in 2005 as
compared to 2004. Costs as a percentage of revenue increased in
2005 due to continued Sarbanes-Oxley compliance costs and a
significant number of SEC filings. General and administrative
expenses decreased $250,000, or 3%, in 2004 compared to 2003,
and $6.5 million, or 40%, in 2003 compared to 2002. The
decreases in both years were primarily attributable to decreases
in salary expenses as a result of reductions in force,
professional services expenses as a result of cost cutting
measures, reserves of accounts receivable due to better than
expected collection efforts and declining accounts receivable
balances, and continued facilities consolidations.
Litigation settlement costs. During the third
quarter of 2003, we settled outstanding litigation, which
resulted in a charge of $4.3 million. The settlement
involved payments for past royalties and certain legal expenses
and license fees that were due and payable in future periods.
These payments did not have a material effect on our business,
financial condition or results of operations.
Goodwill write-offs and amortization. On
April 14, 2000, we acquired all of the outstanding common
stock of Interleaf, Inc. in a transaction accounted for as a
purchase business combination. As a result of this transaction,
we recorded goodwill and other intangible assets of
$794.7 million. Amortization of recognizable intangible
assets related to the Interleaf transaction was
$3.5 million in 2002. In the third quarter of 2005, we
determined that an impairment of the goodwill had occurred, and
therefore we recorded a write-off of $13.2 million as an
estimated impairment amount. In the fourth quarter of 2005, we
recorded an additional charge of $18.2 million related to a
revision of that estimate. See further discussion below.
Restructuring (reversals) charges. We approved
restructuring plans to, among other things, reduce our workforce
and consolidate facilities. These restructuring and asset
impairment charges were taken to align our cost structure with
changing market conditions and to create a more efficient
organization. In fiscal 2005, we recorded a restructuring credit
of $462,000, primarily due to an additional sublease entered
into for a portion of our headquarters facility. In fiscal 2004,
we reached agreement with several landlords to extinguish
approximately
50
$155.0 million of obligations related to excess facility
leases, which contributed to a pre-tax net restructuring credit
during the year of $23.5 million. Pretax charges of
$35.4 million were recorded during the year ended
December 31, 2003. During each period, we recorded the
low-end of a range of assumptions modeled for the restructuring
charges, in accordance with SFAS No. 5, Accounting
for Contingencies. Adjustments to the restructuring reserves
will be made in future periods, if necessary, based upon the
then current actual events and circumstances.
Business combination charges. We recorded
business combination charges of $2.8 million in the year
ended December 31,2005, related to the termination of the
merger agreement with a wholly-owned subsidiary of Vector.
The following table summarizes the restructuring accrual
activity recorded during the three-years ended December 31,
2005 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance
|
|
|
|
|
|
|
|
|
|
and
|
|
|
Facilities/Excess
|
|
|
|
|
|
|
Benefits
|
|
|
Assets
|
|
|
Total
|
|
|
Accrual balances,
December 31, 2002
|
|
$
|
1,504
|
|
|
$
|
94,691
|
|
|
$
|
96,195
|
|
Restructuring charges
|
|
|
1,509
|
|
|
|
33,847
|
|
|
|
35,356
|
|
Cash payments
|
|
|
(2,342
|
)
|
|
|
(23,829
|
)
|
|
|
(26,171
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual balances,
December 31, 2003
|
|
|
671
|
|
|
|
104,709
|
|
|
|
105,380
|
|
Restructuring charges
|
|
|
1,114
|
|
|
|
(24,659
|
)
|
|
|
(23,545
|
)
|
Cash payments
|
|
|
(961
|
)
|
|
|
(46,711
|
)
|
|
|
(47,672
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual balances,
December 31, 2004
|
|
|
824
|
|
|
|
33,339
|
|
|
|
34,163
|
|
Restructuring charges (credits)
|
|
|
1,006
|
|
|
|
(1,468
|
)
|
|
|
(462
|
)
|
Cash payments
|
|
|
(1,414
|
)
|
|
|
(25,032
|
)
|
|
|
(26,446
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual balances,
December 31, 2005
|
|
$
|
416
|
|
|
$
|
6,839
|
|
|
$
|
7,255
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The severance and benefits accrual for each period included
severance, payroll taxes and COBRA benefits related to
restructuring plans implemented prior to the balance sheet date.
The facilities/excess assets accrual for each period included
future minimum lease payments, fees and expenses, net of
estimated sublease income and planned company occupancy, and
related leasehold improvement amounts payable subsequent to the
balance sheet date for which the provisions of
EITF 94-3
or SFAS 146, as applicable, were satisfied. See further
discussion below. In determining estimated future sublease
income, the following factors were considered, among others:
opinions of independent real estate experts, current market
conditions and rental rates, an assessment of the time period
over which reasonable estimates could be made, the status of
negotiations with potential subtenants, and the location of the
respective facilities.
The nature of the charges and credits in 2005 were as follows:
|
|
|
|
|
Severance and benefits On June 29, 2005,
our Board of Directors approved a business restructuring plan,
primarily consisting of headcount reductions, designed to adjust
expenses to a level more consistent with anticipated revenues.
The reduction included approximately 63 employees, or 22% of our
workforce. We recorded severance charges of approximately
$1.0 million in the year ended December 31, 2005,
related to workforce reductions as a component of our
restructuring plans executed during the year. We estimate that
the accrual as of December 31, 2005 of $416,000 will be
paid in full by December 31, 2006.
|
|
|
|
|
|
Facilities/excess assets During the twelve
months ended December 31, 2005, we recorded a
facilities-related restructuring credit of $1.5 million.
During the third and fourth quarters of 2004 and the first
quarter of 2005, we reached agreements with certain landlords to
extinguish future real estate obligations. We made cash payments
of $25.0 million during the twelve months ended
December 31, 2005 related to these agreements.
|
51
The nature of the charges and credits in 2004 were as follows:
|
|
|
|
|
Severance and benefits We recorded a charge
of $1.1 million during the twelve months ended
December 31, 2004, related to workforce reductions as a
component of the our restructuring plans executed during the
year.
|
|
|
|
|
|
Facilities/excess assets During the twelve
months ended December 31, 2004, we recorded a
facilities-related restructuring credit of $24.7 million.
During the third and fourth quarters of 2004, we reached
agreements with certain landlords to extinguish approximately
$155.0 million of future real estate obligations. We made
cash payments of $19.0 million during the third quarter and
$1.7 million during the fourth quarter. Standby letters of
credit of $21.9 million were issued on our behalf from
financial institutions as of December 31, 2004, in favor of
the landlords to secure the fiscal 2005 payments. Accordingly,
$21.9 million, along with additional letters of credit
securing other long-term leases of $2.3 million, has been
included in restricted cash in the accompanying Consolidated
Balance Sheets at December 31, 2004. We also transferred
ownership of certain furniture, fixtures, and leasehold
improvements with a net book value of $8.5 million to the
previous landlords.
|
As a component of the settlement of one of the previous leases,
we have a residual lease obligation beginning in 2007 of
approximately $9.1 million. We may make an additional cash
payment of $4.5 million if we exercise an option to
terminate this residual real estate obligation prior to the
commencement of the lease term (January 2007). This option to
terminate the residual lease obligation is accounted for in
accordance with SFAS 146 and is a part of the facilities
related restructuring credit of $24.6 million recorded in
fiscal 2004.
In connection with one of the buyout transactions, we issued to
the landlord a five-year warrant to purchase approximately
700,000 shares of our common stock at an exercise price of
$5.00 per share, exercisable beginning in August 2005.
The nature of the charges in 2003 is as follows:
|
|
|
|
|
Severance and benefits The $1.5 million
charge in fiscal 2003 related to workforce reductions as a
component of our restructuring plans executed during the year.
|
|
|
|
|
|
Facilities/excess assets During the twelve
months ended December 31, 2003, we recorded a
facilities-related restructuring charge of $33.8 million.
This charge related to our revisions of estimates with respect
to the planned future occupancy and anticipated future
subleases. These revisions were necessary due to a reduction in
our planned future space needs and a further decline in the
market for commercial real estate. We estimated future sublease
timing and rates based upon current market indicators and
information obtained from a third party real estate expert.
|
As of December 31, 2005, the total restructuring accrual of
$7.2 million consisted of the following (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
Current
|
|
|
Current
|
|
|
Total
|
|
|
Severance and Termination
|
|
$
|
0.4
|
|
|
$
|
|
|
|
$
|
0.4
|
|
Excess Facilities
|
|
|
5.1
|
|
|
|
1.7
|
|
|
|
6.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
5.5
|
|
|
$
|
1.7
|
|
|
$
|
7.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52
We estimate that the severance and termination accrual will be
paid in full by December 31, 2006. We expect to pay the
excess facilities amounts related to restructured or abandoned
leased space as follows (in millions):
|
|
|
|
|
|
|
Total Future
|
|
Years Ending December 31,
|
|
Payments
|
|
|
2006
|
|
$
|
5.1
|
|
2007
|
|
|
0.7
|
|
2008
|
|
|
0.4
|
|
2009
|
|
|
0.4
|
|
2010
|
|
|
0.2
|
|
|
|
|
|
|
Total minimum facilities payments
|
|
$
|
6.8
|
|
|
|
|
|
|
Of this excess facilities accrual, $4.2 million relates to
payments due in fiscal 2006 under lease termination agreements,
and $2.6 million relates to future minimum lease payments,
fees and expenses, net of estimated sublease income and planned
company occupancy.
Activity related to the restructuring plans prior to
January 1, 2003 is accounted for in accordance with
EITF 94-3.
Activity after January 1, 2003 is accounted for in
accordance with SFAS 146, with the exception of amounts
that were the result of changes in assumptions to restructuring
plans that were initiated prior to January 1, 2003.
The following table summarizes the activity related to the
restructuring plans initiated after January 1, 2003, and
accounted for in accordance with FAS 146 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts
|
|
|
|
|
|
|
|
|
|
|
|
|
Charged to
|
|
|
|
|
|
|
|
|
|
Accrued
|
|
|
Restructuring
|
|
|
Amounts
|
|
|
Accrued
|
|
|
|
Restructuring
|
|
|
Costs and
|
|
|
Paid or
|
|
|
Restructuring
|
|
|
|
Costs, Beginning
|
|
|
Other
|
|
|
Written Off
|
|
|
Costs, Ending
|
|
|
Year Ended December 31,
2005:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
21,824
|
|
|
$
|
(821
|
)
|
|
$
|
(16,815
|
)
|
|
$
|
4,188
|
|
Termination payments to employees
and related costs
|
|
|
365
|
|
|
|
1,006
|
|
|
|
(1,266
|
)
|
|
|
105
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
22,189
|
|
|
$
|
185
|
|
|
$
|
(18,081
|
)
|
|
$
|
4,293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
21,683
|
|
|
$
|
9,594
|
|
|
$
|
(9,453
|
)
|
|
$
|
21,824
|
|
Termination payments to employees
and related costs
|
|
|
242
|
|
|
|
1,114
|
|
|
|
(991
|
)
|
|
|
365
|
|
Write-off on disposal of assets
and related costs
|
|
|
|
|
|
|
(1,193
|
)
|
|
|
1,193
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
21,925
|
|
|
$
|
9,515
|
|
|
$
|
(9,251
|
)
|
|
$
|
22,189
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
53
The following table summarizes the activity related to the
restructuring plans initiated prior to January 1, 2003, and
accounted for in accordance with
EITF 94-3
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts
|
|
|
Amounts
|
|
|
|
|
|
|
|
|
|
|
|
|
Charged to
|
|
|
Reversed to
|
|
|
Amounts
|
|
|
|
|
|
|
Accrued
|
|
|
Restructuring
|
|
|
Restructuring
|
|
|
Paid or
|
|
|
Accrued
|
|
|
|
Restructuring
|
|
|
Costs and
|
|
|
Costs and
|
|
|
Written
|
|
|
Restructuring
|
|
|
|
Costs, Beginning
|
|
|
Other
|
|
|
Other
|
|
|
Off
|
|
|
Costs, Ending
|
|
|
Year Ended December 31,
2005:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
11,515
|
|
|
$
|
|
|
|
$
|
(647
|
)
|
|
$
|
(8,217
|
)
|
|
$
|
2,651
|
|
Termination payments to employees
and related costs
|
|
|
459
|
|
|
|
|
|
|
|
|
|
|
|
(148
|
)
|
|
|
311
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
11,974
|
|
|
$
|
|
|
|
$
|
(647
|
)
|
|
$
|
(8,365
|
)
|
|
$
|
2,962
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
83,026
|
|
|
$
|
(32,584
|
)
|
|
$
|
|
|
|
$
|
(38,927
|
)
|
|
$
|
11,515
|
|
Termination payments to employees
and related costs
|
|
|
429
|
|
|
|
|
|
|
|
|
|
|
|
30
|
|
|
|
459
|
|
Write-off on disposal of assets
and related costs
|
|
|
|
|
|
|
(477
|
)
|
|
|
|
|
|
|
477
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
83,455
|
|
|
$
|
(33,061
|
)
|
|
$
|
|
|
|
$
|
(38,420
|
)
|
|
$
|
11,974
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
2003:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease cancellations and commitments
|
|
$
|
94,691
|
|
|
$
|
11,649
|
|
|
$
|
|
|
|
$
|
(23,314
|
)
|
|
$
|
83,026
|
|
Termination payments to employees
and related costs
|
|
|
1,425
|
|
|
|
41
|
|
|
|
|
|
|
|
(1,037
|
)
|
|
|
429
|
|
Write-off on disposal of assets
and related costs
|
|
|
79
|
|
|
|
(41
|
)
|
|
|
(26
|
)
|
|
|
(12
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
96,195
|
|
|
$
|
11,649
|
|
|
$
|
(26
|
)
|
|
$
|
(24,363
|
)
|
|
$
|
83,455
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
and intangible write-offs
In the quarter ended September 30, 2005, we recognized a
goodwill impairment charge of $13.2 million as an estimated
impairment in accordance with the requirements of Statement of
Financial Accounting Standards No. 142, Goodwill and
Other Intangible Assets (SFAS 142). As of
September 30, 2005, we performed Step 1 under the
provisions of SFAS 142 by determining that we have a single
reporting unit and then comparing our net book value to the our
market capitalization based upon the quoted market price of our
stock. Based upon the results of Step 1 and as permitted under
SFAS 142, we estimated the impairment charge under Step 2
by estimating the fair value of all other assets and liabilities
of the reporting unit. Subsequent to the issuance of our third
quarter financial statements, we obtained a third-party
valuation report, completed Step 2 and recorded an adjustment to
the original estimate (recognized an additional impairment
charge) of $18.2 million in the quarter ended
December 31, 2005. Further, as of December 31, 2005,
we performed a goodwill impairment analysis under Step 1.
Because the fair value was determined to be greater than book
value, Step 2 under SFAS 142 was not required, and
therefore no additional impairment was necessary at
December 31, 2005.
54
Other
Income (Expense), net
Other income (expense), net, consists of the following (dollars
in thousands, percentages are based upon total revenues):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2005
|
|
|
%(1)
|
|
|
2004
|
|
|
%(1)
|
|
|
2003
|
|
|
%(1)
|
|
|
Interest (expense) income, net
|
|
$
|
(10,094
|
)
|
|
|
(17
|
)%
|
|
$
|
(629
|
)
|
|
|
(1
|
)%
|
|
$
|
803
|
|
|
|
1
|
%
|
Income (expense) from derivatives
|
|
|
11,346
|
|
|
|
19
|
|
|
|
(2,421
|
)
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
Loss on debt extinguishment
|
|
|
(6,967
|
)
|
|
|
(12
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense), net
|
|
|
(849
|
)
|
|
|
(1
|
)
|
|
|
941
|
|
|
|
1
|
|
|
|
2,096
|
|
|
|
2
|
|
|
|
|
(1) |
|
Percentage is calculated based on total revenues for the period
indicated. |
Net interest (expense) income includes interest income on
invested funds, less interest on the face amount of the Notes
and on bank debt and the amortization of the discount on the
Notes. Net interest expense increased by $9.5 million in
2005 as compared to 2004 due to the following factors:
1) we issued the Notes in November 2004 that were
outstanding for the majority of fiscal year 2005, significantly
increasing the amount of interest expense for the year, and
2) we recorded a $2.6 million charge related to the
20% premium agreed to during the fourth quarter and the
resulting revaluation of the Notes. Income (expense) from
derivatives was generated from the revaluation of the embedded
derivatives related to the Notes and the warrants issued in
connection with the Notes. The loss on debt extinguishment in
2005 was recorded upon the agreement to exchange the Notes for
common stock and the presumed cancellation and reissuance of the
Notes at the fair value of the underlying shares to be
exchanged. Net other income (expense) declined by
$1.8 million in 2005 due to lower gains on equity
investments and penalties paid to the holders of the Notes
pending effectiveness of the underlying registration statement.
In October 2005, we inadvertently did not make timely payment of
the $201,000 third quarter interest payment due under the Notes.
Lack of timely payment became an event of default on
October 8, 2005 after non-payment continued for a period of
over five business days. We made the third quarter interest
payment promptly after discovery of the nonpayment, on
October 14, 2005. The event of default permitted each
noteholder to require us to redeem 120% of all or any portion of
the amounts outstanding under the applicable Note by delivering
to us notice of such redemption, which redemption was required
under the Notes to be paid within five business days after
receipt of such redemption notice. If all of the noteholders had
elected such redemption, we would have been obligated to pay
within five business days after receipt of such election
approximately $15.5 million in unpaid principal and
interest. The accelerated repayment of all or any significant
portion of such amount would have left us with insufficient
working capital to conduct our business, and we did not have
sufficient cash to meet such an accelerated repayment
obligation. During the quarter ended December 31, 2005, we
recorded a charge of $2.6 million in our Consolidated
Statement of Operations, which represented the 20% increase in
the redeemable debt premium.
Interest income (expense), net, decreased from $803,000 of
income in 2003 to $629,000 of expense in 2004, as our cash
balance decreased and we issued the Notes in November 2004,
which increased our fiscal 2004 interest expense. Net other
income declined by $1.2 million in 2004 from 2003 due to
lower gains on equity investments and fewer write-offs of
liabilities deemed no longer required.
Income
Taxes
We recorded income tax (benefits) provisions of
($2.6 million), ($309,000), and $439,000 for the years
ended December 31, 2005, 2004 and 2003, respectively. The
tax benefit from fiscal 2005 was primarily due to tax accruals
determined to be no longer required. For the year ended
December 31, 2004, the tax benefit relates primarily to the
income tax accruals decreasing during the fiscal year. Partially
offsetting the reduction in accruals were tax provisions related
to foreign withholding taxes and state income taxes. For the
year ended December 31, 2003, the tax provision mainly
relates to foreign withholding taxes and state income taxes.
55
Liquidity
and Capital Resources
Background
and Overview
As of December 31, 2005, cash, cash equivalents, and
restricted cash and investments totaled $4.8 million, which
represents a decrease of $37.1 million as compared to a
balance of $41.9 million on December 31, 2004. This
decrease was primarily attributable to the payment of lease
settlement obligations, payments of debt-related obligations and
net cash used for operations during the year ended
December 31, 2005.
The following table represents our liquidity at
December 31, 2005 and 2004 (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2005
|
|
|
2004
|
|
|
|
|
|
|
(Restated)
|
|
|
Cash and cash equivalents
|
|
$
|
4,849
|
|
|
$
|
41,851
|
|
Restricted cash and investments,
current portion
|
|
$
|
|
|
|
$
|
21,933
|
|
Restricted cash and investments,
net of current portion
|
|
$
|
1,997
|
|
|
$
|
2,323
|
|
Working capital deficit
|
|
$
|
(35,872
|
)
|
|
$
|
(20,273
|
)
|
Working capital ratio
|
|
|
0.35
|
|
|
|
0.80
|
|
During the third and fourth quarters of 2004 and the first
quarter of 2005, we reached agreements with certain landlords to
extinguish approximately $155.0 million of future real
estate obligations. We made cash buyout payments of
$20.7 million in 2004 and $25.0 million in 2005. In
addition, we issued to one of the landlords a five-year warrant
to purchase approximately 700,000 shares of BroadVision
common stock at an exercise price of $5.00 per share,
exercisable beginning in August 2005. As a component of the
settlement of one of the previous leases, we have a residual
lease obligation beginning in January 2007 of approximately
$9.1 million. We may make an additional cash payment of
$4.5 million if we exercise an option to terminate this
residual real estate obligation prior to the start of the lease
term. This option to terminate the residual lease obligation,
discounted to net present value, is accounted for in accordance
with SFAS 146 and is part of the current restructuring
accrual as of December 31, 2005.
In November 2004, we entered into a definitive agreement for the
private placement of up to $20.0 million of senior secured
convertible notes (the Notes) to five institutional
investors. Under the terms of the definitive agreement, we
issued an initial $16.0 million of Notes that were
convertible, at the holders option, into common stock at a
conversion price of $2.76 per share, subject to adjustment
in certain defined circumstances. The Notes bore interest at a
rate of six percent per annum, and we were originally obligated
to repay the principal amount of the initial $16.0 million
of notes in 15 equal monthly installments of $1.1 million
beginning in June 2005. Payments of future principal and
interest could have been made in either cash or, upon
satisfaction of various conditions set forth in the Notes,
shares of BroadVision common stock. However, because we did not
satisfy the conditions required to make payments in stock, we
were required to use cash to satisfy our payment obligations
under the Notes. Certain principal payments that were due in the
quarters ended September 30, 2005 and December 31,
2005, were deferred at the election of the investors for a
period of 18 months under the terms of the Notes.
In October 2005, we inadvertently did not make timely payment of
the third quarter interest payment due under the Notes of
approximately $201,000 that was due on October 1, 2005.
Lack of timely payment became an event of default on
October 8, 2005 after non-payment continued for a period of
over five business days. We made the third quarter interest
payment promptly after discovery of the nonpayment, on
October 14, 2005. The event of default permitted each
noteholder to require us to redeem 120% of all or any portion of
the amounts outstanding under the applicable Note by delivering
to us notice of such redemption, which redemption was required
under the Notes to be paid within five business days after
receipt of such redemption notice. If all of the noteholders had
elected such redemption, we would have been obligated to pay
within five business days after receipt of such election
approximately $15.5 million in unpaid principal and
interest. The accelerated repayment of all or any significant
portion of such amount would have left us with insufficient
working capital to conduct our business, and we did not have
sufficient cash to meet such an accelerated repayment
obligation. On October 25, 2005, we entered into an
agreement with the noteholders under which the noteholders
agreed not to require redemption of the Notes, including the 20%
premium payable thereunder, prior to November 16, 2005.
During the quarter ended
56
December 31, 2005, we recorded a charge of
$2.6 million in our Consolidated Statement of Operations,
which represented the 20% increase in the redeemable debt
premium.
In November 2005, the Notes were purchased by Vector III,
an entity affiliated with Vector, and subsequently on
November 18, 2005, the Notes were in turn purchased by Honu
Holdings, LLC, a Delaware limited liability company controlled
by Dr. Pehong Chen, our Chairman, Chief Executive Officer,
President, Chief interim Financial Officer and largest
stockholder. See further discussion below.
In November 2005, Honu acquired all Notes then outstanding.
Including interest, the Notes represented $15.5 million in
debt obligations as of December 15, 2005. In order to
relieve us from the liquidity challenges presented by the Notes,
Dr. Chen agreed to cancel all amounts owed under the Notes
in exchange for 34,500,000 shares of BroadVision common
stock, at an effective price per share of $0.45, a 25% discount
to the December 20, 2005 closing price of BroadVision
common stock, and $180,000 in cash that represented the portion
of the accrued interest on the Notes that was not paid in stock.
That exchange was completed in March 2006. The common share
issuance, representing approximately 50% of the post-conversion
shares outstanding, increased Dr. Chens ownership
interest in BroadVision to 58.7% of the total shares outstanding.
In February 2006, we announced a subscription rights offering to
existing stockholders to sell a total of 178 million
shares, or 5.9 shares for each share of BroadVision common
stock held as of the record date of December 20, 2005, at
effective price per share of $0.45. The primary purpose of the
rights offering is to allow the holders of BroadVision common
stock an opportunity to further invest in BroadVision in order
to maintain their proportionate interest in BroadVision common
stock, at the same price per share as the conversion price
afforded to Dr. Chen in the Notes conversion. Dr. Chen
has waived any right to participate in the rights offering. The
rights offering will be made only by means of a prospectus, a
preliminary copy of which was filed with the Securities and
Exchange Commission as part of a registration statement on
February 3, 2006.
On June 29, 2005, our Board of Directors approved a
business restructuring plan, primarily consisting of headcount
reductions, designed to adjust expenses to a level more
consistent with anticipated revenues. The reduction included
approximately 63 employees, or 22% of our workforce. We recorded
severance charges of approximately $443,000 and $627,000 in the
three-month periods ended September 30 and June 30,
2005, respectively.
We have maintained various credit facilities with a commercial
lender, each of which we are in default of at December 31,
2005:
|
|
|
|
|
During the three years ended December 31, 2005, we
maintained a revolving line of credit in the form of a loan and
security agreement with a commercial lender. In June 2005, we
entered into a $20 million renewed and amended loan and
security agreement with the lender that made more stringent the
requirements we must meet in order to access the credit
facility. We were not in compliance with these new requirements
as of December 31, 2005, and the loan and security
agreement expired in February 2006. The agreement required us to
maintain certain levels of unrestricted cash and cash
equivalents (excluding equity investments), and to maintain
certain levels on deposit with the lender. At December 31,
2004, $20.0 million was outstanding under the line of
credit. As of December 31, 2005, there was no outstanding
balance on the line of credit. Borrowings bear interest at the
banks prime rate (7.25% as of December 31, 2005 and
5.25% as of December 31, 2004) plus up to 1.25% and
were collateralized by all of our assets. Interest was due
monthly and principal was due at the expiration in February 2006.
|
|
|
|
|
|
We have entered into term debt in the form of notes payable with
the same lender. The term debt requires monthly payments of
approximately $38,000 plus interest through October 2006, and
monthly payments of approximately $2,000 for the five months
ending March 2007. A portion of the term debt was utilized for
an equipment line of credit. Principal and interest are due in
monthly payments through maturity based on the terms of the
facilities. Principal payments of $389,000 are due in 2006. As
of December 31, 2005, the entire balance of $389,000 was
classified as currently due.
|
Commitments totaling $2.0 million in the form of standby
letters of credit were issued on our behalf from financial
institutions as of December 31, 2005, primarily in favor of
our various landlords to secure obligations
57
under our facility leases. Accordingly, $2.0 million was
presented as long-term restricted cash in the accompanying
Consolidated Balance Sheet at December 31, 2005.
Our exposure to market risk for changes in interest rates
relates primarily to our investment portfolio. The conversion
feature of the Notes and the warrants issued in connection with
the Notes were both considered derivative financial investments
as of December 31, 2005 and December 31, 2004. The
value of these derivative instruments is based upon the fair
value of our common stock. We place our investments in
instruments that meet high credit quality standards and the
amount of credit exposure to any one issue, issuer and type of
instrument is limited. Our interest rate risk related to
borrowings historically has been minimal as interest expense
related to adjustable rate borrowings has been immaterial for
years ended December 31, 2005 and 2004.
Cash Used
For Operating Activities
Cash used for operating activities was $37.9 million,
$41.9 million, and $23.1 million for fiscal years
2005, 2004 and 2003, respectively. Net cash used in operating
activities in 2005 was primarily due to $25.0 million of
lease and buyout payments associated with long-term lease
obligations from agreements signed during fiscal 2004. Also
impacting cash flows from operations in fiscal 2005 was a
$2.0 million reversal of income tax accruals, a decrease in
accounts payable and accrued expenses of $7.0 million, a
decrease in the restructuring accrual of $26.9 million
(mostly related to the settlement of long-term lease
obligations), a decrease in unearned revenue and deferred
maintenance of $3.9 million and a gain of
$11.3 million on revaluation of embedded derivatives
related to the Notes and the related warrants, partially offset
by $9.4 million of amortization of discount and revaluation
of the Notes, a loss on debt extinguishment of $7.0 million
and a decrease in accounts receivable of $2.4 million.
Net cash used for operating activities of $41.9 million in
2004 was largely due to buyout payments to settle long-term
lease obligations. As a result of the settlement of future lease
obligations during the third and fourth quarters of fiscal 2004,
we paid $20.7 million in cash to extinguish future lease
obligations. Also impacting cash flows from operations in fiscal
2004 was a net loss of $6.3 million (before restructuring
credits related to real estate transactions), a
$1.5 million release of doubtful accounts and reserves and
a $7.0 million decline in unearned revenue and deferred
maintenance. There were also several non-cash items, including
non-cash depreciation and amortization expense of
$3.7 million, a non-cash restructuring reversal of
$24.9 million, non-cash losses of $2.4 million from
the revaluation of the conversion feature of the Notes and the
related warrants, non-cash discount amortization related to the
Notes of $401,000 and changes to balance sheet accounts,
including a decrease in accounts receivable, prepaid expenses
and other current assets of $5.0 million and a decrease in
accounts payable and accrued expenses of $2.2 million.
Net cash used for operating activities for fiscal 2003 was
primarily due to the net loss of $35.5 million adjusted for
certain non-cash items such as depreciation expense,
amortization of prepaid royalties and amortization of
intangibles. Decreases in accounts payable and accrued expenses
of $8.1 million and in unearned revenues and deferred
maintenance of $11.7 million contributed to the use of
cash, offset by decreases in other noncurrent assets of
$1.9 million, in accounts receivable of $8.3 million
and in prepaids and other of $1.6 million and an increase
in the restructuring reserves of $7.5 million.
Cash
Provided By (Used For) Investing Activities
Cash provided by investing activities in fiscal 2005 was
$23.8 million, primarily as a result of transfers from
restricted cash and proceeds from dividends received related to
equity investments. Cash used for investing activities in fiscal
2004 was $3.8 million, primarily as a result of transfers
to restricted cash. Cash provided by investing activities of
$22.0 million for fiscal 2003 primarily consisted of net
sales/maturities of investments.
Capital expenditures were $142,000 for fiscal 2005, $730,000 for
fiscal 2004, and $131,000 for fiscal 2003. Our capital
expenditures have consisted of purchases of operating resources
to manage our operations and included computer hardware and
software, office furniture and fixtures and leasehold
improvements.
58
Cash
Provided By Financing Activities
Cash used for financing activities in fiscal 2005 was
$23.2 million, primarily due to the repayment of borrowings
under our bank line of credit and Notes payments. Cash provided
by financing activities was $8.9 million in fiscal 2004,
and $2.5 million for fiscal 2003. In November 2004, we
issued the Notes and a related warrant to five institutional
investors, which provided $14.9 million in net proceeds
after issuance costs. Offsetting this was a $7.0 million
reduction in bank borrowings and bank term debt principal
payments of $900,000 in fiscal 2004. In fiscal 2003, cash
provided by financing activities consisted mostly of proceeds
from borrowings under our line of credit facility.
Leases
and Other Contractual Obligations
We lease our headquarters and other facilities under
non-cancelable operating lease agreements expiring through the
year 2012. Under the terms of the agreements, we are required to
pay lease costs, property taxes, insurance and normal
maintenance costs.
We expect to incur significant operating expenses for the
foreseeable future in order to execute our business plan. A
summary of total future minimum lease payments as of
December 31, 2005, under non-cancelable operating lease
agreements, net of amounts under non-cancelable sublease
agreements, is as follows (in millions):
|
|
|
|
|
|
|
Operating
|
|
|
|
Leases
|
|
|
Years Ending
December 31,
|
|
|
|
|
2006
|
|
$
|
3.5
|
|
2007
|
|
|
3.9
|
|
2008
|
|
|
2.1
|
|
2009
|
|
|
2.1
|
|
2010 and thereafter
|
|
|
4.1
|
|
|
|
|
|
|
Total minimum lease payments
|
|
$
|
15.7
|
|
|
|
|
|
|
As of December 31, 2005, we have accrued $6.8 million
of estimated future facilities costs as a restructuring accrual.
This accrual includes the above minimum lease payments that are
related to excess and abandoned space under lease and certain
lease related allowances, fees and expenses, partially offset by
estimated future sublease income (See Note 8 in the Notes
to Consolidated Financial Statements).
Factors
That May Affect Future Liquidity
The following table summarizes our contractual obligations as of
December 31, 2005 and the effect such obligations are
expected to have on our liquidity and cash flows in future
years. Restricted cash represents the collateral for our letters
of credit.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less Than
|
|
|
1-3
|
|
|
4-5
|
|
|
Over
|
|
|
|
Total
|
|
|
1 Year
|
|
|
Years
|
|
|
Years
|
|
|
5 Years
|
|
|
|
(In millions)
|
|
|
Letters of credit
|
|
$
|
2.0
|
|
|
$
|
|
|
|
$
|
1.0
|
|
|
$
|
|
|
|
$
|
1.0
|
|
Non-cancelable operating leases
|
|
|
6.8
|
|
|
|
5.1
|
|
|
|
1.5
|
|
|
|
0.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
8.8
|
|
|
$
|
5.1
|
|
|
$
|
2.5
|
|
|
$
|
0.2
|
|
|
$
|
1.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We anticipate that future operating expenses and cash payments
under operating leases will constitute a material use of our
existing cash resources. As a result, our net cash flows will
depend heavily on the level of future revenues, our ability to
further restructure operations successfully and our ability to
manage infrastructure costs.
59
Quarterly
Results of Operations
The following tables set forth certain unaudited condensed
consolidated statement of operations data for the eight quarters
ended March 31, 2006, as well as that data expressed as a
percentage of our total revenues for the periods indicated.
This data has been derived from unaudited condensed consolidated
financial statements that, in the opinion of management, include
all adjustments consisting only of normal recurring adjustments,
necessary for a fair presentation of such information when read
in conjunction with the Consolidated Financial Statements and
Notes thereto.
The unaudited quarterly information should be read in
conjunction with the Consolidated Financial Statements and Notes
thereto included in our Annual Report on
Form 10-K
for the year ended December 31, 2005. We believe that
period-to-period
comparisons of our financial results are not necessarily
meaningful and should not be relied upon as an indication of
future performance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
|
2006
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2004
|
|
|
2004
|
|
|
2004
|
|
|
|
|
|
|
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
(Unaudited)
|
|
|
Statement of Operations
Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software licenses
|
|
$
|
2,882
|
|
|
$
|
3,780
|
|
|
$
|
3,134
|
|
|
$
|
3,391
|
|
|
$
|
4,416
|
|
|
$
|
7,292
|
|
|
$
|
4,654
|
|
|
$
|
7,097
|
|
Services
|
|
|
9,742
|
|
|
|
10,383
|
|
|
|
10,943
|
|
|
|
12,123
|
|
|
|
11,951
|
|
|
|
12,471
|
|
|
|
12,570
|
|
|
|
13,031
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
12,624
|
|
|
|
14,163
|
|
|
|
14,077
|
|
|
|
15,514
|
|
|
|
16,367
|
|
|
|
19,763
|
|
|
|
17,224
|
|
|
|
20,128
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of software licenses
|
|
|
62
|
|
|
|
99
|
|
|
|
106
|
|
|
|
(186
|
)
|
|
|
(57
|
)
|
|
|
156
|
|
|
|
256
|
|
|
|
313
|
|
Cost of services
|
|
|
4,058
|
|
|
|
4,696
|
|
|
|
5,641
|
|
|
|
5,614
|
|
|
|
5,980
|
|
|
|
6,008
|
|
|
|
6,391
|
|
|
|
6,302
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
4,120
|
|
|
|
4,795
|
|
|
|
5,747
|
|
|
|
5,428
|
|
|
|
5,923
|
|
|
|
6,164
|
|
|
|
6,647
|
|
|
|
6,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
8,504
|
|
|
|
9,368
|
|
|
|
8,330
|
|
|
|
10,086
|
|
|
|
10,444
|
|
|
|
13,599
|
|
|
|
10,577
|
|
|
|
13,513
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
2,631
|
|
|
|
2,494
|
|
|
|
3,095
|
|
|
|
3,955
|
|
|
|
4,287
|
|
|
|
4,027
|
|
|
|
4,600
|
|
|
|
4,509
|
|
Sales and marketing
|
|
|
2,381
|
|
|
|
2,389
|
|
|
|
2,948
|
|
|
|
5,060
|
|
|
|
5,811
|
|
|
|
6,974
|
|
|
|
6,020
|
|
|
|
7,480
|
|
General and administrative
|
|
|
1,738
|
|
|
|
1,953
|
|
|
|
2,162
|
|
|
|
2,829
|
|
|
|
2,535
|
|
|
|
2,386
|
|
|
|
2,335
|
|
|
|
2,400
|
|
Goodwill and intangible write-offs
|
|
|
|
|
|
|
18,170
|
|
|
|
13,198
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring (reversals) charges
|
|
|
490
|
|
|
|
(312
|
)
|
|
|
245
|
|
|
|
309
|
|
|
|
(704
|
)
|
|
|
660
|
|
|
|
(25,454
|
)
|
|
|
679
|
|
Business combination charges
|
|
|
|
|
|
|
1,840
|
|
|
|
977
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses (credits)
|
|
|
7,240
|
|
|
|
26,534
|
|
|
|
22,625
|
|
|
|
12,153
|
|
|
|
11,929
|
|
|
|
14,047
|
|
|
|
(12,499
|
)
|
|
|
15,068
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
1,264
|
|
|
|
(17,166
|
)
|
|
|
(14,295
|
)
|
|
|
(2,067
|
)
|
|
|
(1,485
|
)
|
|
|
(448
|
)
|
|
|
23,076
|
|
|
|
(1,555
|
)
|
Other income (expense), net
|
|
|
(227
|
)
|
|
|
(10,714
|
)
|
|
|
(1,757
|
)
|
|
|
(959
|
)
|
|
|
6,866
|
|
|
|
(2,457
|
)
|
|
|
315
|
|
|
|
57
|
|
Benefit (provision) for income taxes
|
|
|
(156
|
)
|
|
|
109
|
|
|
|
540
|
|
|
|
(70
|
)
|
|
|
2,032
|
|
|
|
450
|
|
|
|
(11
|
)
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
$
|
881
|
|
|
$
|
(27,771
|
)
|
|
$
|
(15,512
|
)
|
|
$
|
(3,096
|
)
|
|
$
|
7,413
|
|
|
$
|
(2,455
|
)
|
|
$
|
23,380
|
|
|
$
|
(1,492
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share
|
|
$
|
0.02
|
|
|
$
|
(0.81
|
)
|
|
$
|
(0.45
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
0.22
|
|
|
$
|
(0.07
|
)
|
|
$
|
0.70
|
|
|
$
|
(0.04
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilute net (loss) income per share
|
|
$
|
0.02
|
|
|
$
|
(0.81
|
)
|
|
$
|
(0.45
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
0.19
|
|
|
$
|
(0.07
|
)
|
|
$
|
0.69
|
|
|
$
|
(0.04
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
|
2006
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2004
|
|
|
2004
|
|
|
2004
|
|
|
|
|
|
|
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
(Unaudited)
|
|
|
Shares used in computing basic net
(loss) income per share
|
|
|
42,958
|
|
|
|
34,430
|
|
|
|
34,320
|
|
|
|
34,181
|
|
|
|
33,971
|
|
|
|
33,768
|
|
|
|
33,599
|
|
|
|
33,476
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in computing diluted
net (loss) income per share
|
|
|
43,068
|
|
|
|
34,430
|
|
|
|
34,320
|
|
|
|
34,181
|
|
|
|
39,968
|
|
|
|
33,768
|
|
|
|
34,052
|
|
|
|
33,476
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As a Percent of Revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
Mar 31,
|
|
|
Dec 31,
|
|
|
Sep 30,
|
|
|
Jun 30,
|
|
|
|
2006
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2004
|
|
|
2004
|
|
|
2004
|
|
|
|
|
|
|
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
(Unaudited)
|
|
|
Statement of Operations
Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software licenses
|
|
|
23
|
%
|
|
|
27
|
%
|
|
|
22
|
%
|
|
|
22
|
%
|
|
|
27
|
%
|
|
|
37
|
%
|
|
|
27
|
%
|
|
|
35
|
%
|
Services
|
|
|
77
|
|
|
|
73
|
|
|
|
78
|
|
|
|
78
|
|
|
|
73
|
|
|
|
63
|
|
|
|
73
|
|
|
|
65
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of software licenses
|
|
|
|
|
|
|
1
|
|
|
|
1
|
|
|
|
(1
|
)
|
|
|
(1
|
)
|
|
|
1
|
|
|
|
2
|
|
|
|
2
|
|
Cost of services
|
|
|
32
|
|
|
|
33
|
|
|
|
40
|
|
|
|
36
|
|
|
|
37
|
|
|
|
30
|
|
|
|
37
|
|
|
|
31
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
32
|
|
|
|
34
|
|
|
|
41
|
|
|
|
35
|
|
|
|
36
|
|
|
|
31
|
|
|
|
39
|
|
|
|
33
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
67
|
|
|
|
66
|
|
|
|
59
|
|
|
|
65
|
|
|
|
64
|
|
|
|
69
|
|
|
|
61
|
|
|
|
67
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
21
|
|
|
|
18
|
|
|
|
22
|
|
|
|
25
|
|
|
|
26
|
|
|
|
21
|
|
|
|
27
|
|
|
|
22
|
|
Sales and marketing
|
|
|
19
|
|
|
|
17
|
|
|
|
21
|
|
|
|
33
|
|
|
|
36
|
|
|
|
35
|
|
|
|
35
|
|
|
|
37
|
|
General and administrative
|
|
|
14
|
|
|
|
14
|
|
|
|
15
|
|
|
|
18
|
|
|
|
15
|
|
|
|
12
|
|
|
|
13
|
|
|
|
12
|
|
Litigation settlement costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill and intangible write-offs
|
|
|
|
|
|
|
128
|
|
|
|
94
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring (reversals) charges
|
|
|
4
|
|
|
|
(2
|
)
|
|
|
2
|
|
|
|
2
|
|
|
|
(4
|
)
|
|
|
3
|
|
|
|
(148
|
)
|
|
|
4
|
|
Business combination charges
|
|
|
|
|
|
|
13
|
|
|
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses (credits)
|
|
|
57
|
|
|
|
187
|
|
|
|
161
|
|
|
|
78
|
|
|
|
73
|
|
|
|
71
|
|
|
|
(73
|
)
|
|
|
75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
10
|
|
|
|
(121
|
)
|
|
|
(102
|
)
|
|
|
(13
|
)
|
|
|
(9
|
)
|
|
|
(2
|
)
|
|
|
134
|
|
|
|
(8
|
)
|
Other, net
|
|
|
(3
|
)
|
|
|
(75
|
)
|
|
|
(8
|
)
|
|
|
(7
|
)
|
|
|
54
|
|
|
|
(10
|
)
|
|
|
2
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
|
7
|
%
|
|
|
(196
|
)%
|
|
|
(110
|
)%
|
|
|
(20
|
)%
|
|
|
45
|
%
|
|
|
(12
|
)%
|
|
|
136
|
%
|
|
|
(7
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Our quarterly operating results have fluctuated in the past and
may fluctuate significantly in the future as a result of a
variety of factors, many of which are outside of our control. It
is likely that our operating results in one or
61
more future quarters may be below the expectations of
securities analysts and investors. In that event, the trading
price of our common stock almost certainly would decline.
Recent
Account Pronouncements
In February 2006, the FASB issued Statement of Financial
Accounting Standards No. 155, Accounting for Certain
Hybrid Financial Instruments, an amendment of FASB Statements
No. 133 and 140 (SFAS 155).
SFAS 155 amends SFAS 133 and SFAS No. 140,
Accounting for Transfers and Servicing of Financial Assets
and Extinguishments of Liabilities, to, among other things,
clarify or amend provisions regarding the fair value measurement
of financial instruments with embedded derivatives and the
recording of interests in securitized financial assets.
SFAS 155 will be effective for all financial instruments
acquired or issued after January 1, 2007. We are currently
analyzing SFAS 155 and have not determined its potential
impact on our Consolidated Financial Statements.
In March 2006, the FASB issued SFAS No. 156 (FAS
156), Accounting for Servicing of Financial
Assets An Amendment of FASB Statement No. 140.
Among other requirements, FAS 156 requires a company to
recognize a servicing asset or servicing liability when it
undertakes an obligation to service a financial asset by
entering into a servicing contract under certain situations.
Under FAS 156 an election can also be made for subsequent fair
value measurement of servicing assets and servicing liabilities
by class, thus simplifying the accounting and provide for income
statement recognition of potential offsetting changes in the
fair value of servicing assets, servicing liabilities and
related derivative instruments. The Statement will be effect
beginning the first fiscal year that begins after September 15,
2006. We do not expect the adoption of FAS 156 to have a
material impact on our financial position or results of
operations.
In July 2006, the Financial Accounting Standards Board
(FASB) issued FASB Interpretation No. 48
(FIN No. 48) Accounting for Uncertainty
in Income Taxes which prescribes a recognition threshold
and measurement process for recording in the financial
statements uncertain tax positions taken or expected to be taken
in a tax return. Additionally, FIN No. 48 provides guidance on
the derecognition, classification, accounting in interim periods
and disclosure requirements for uncertain tax positions. The
accounting provisions of FIN No. 48 will be effective for fiscal
years beginning after December 15, 2006. The Company is in the
process of determining the effect, if any, that the adoption of
FIN No. 48 will have on its financial statements.
Change in
Accountants
On November 29, 2005, BDO Seidman, LLP delivered to us a
letter dated November 28, 2005 stating that it had resigned
as our independent registered public accounting firm. On
January 20, 2006, we engaged Stonefield Josephson, Inc. as
our independent registered public accounting firm.
Quantitative
and Qualitative Disclosure about Market Risk
Our exposure to market risk for changes in interest rates
relates primarily to our investment portfolio. We had no
derivative financial instruments as of December 31, 2005
and 2004. We place our investments in instruments that meet high
credit quality standards and the amount of credit exposure to
any one issue, issuer and type of instrument is limited.
Cash
and Cash Equivalents, Short-Term Investments, Long-Term
Investments
We consider all debt and equity securities with remaining
maturities of three months or less at the date of purchase to be
cash equivalents. Short-term cash investments consist of debt
and equity securities that have a remaining maturity of less
than one year as of the date of the balance sheet. Cash and cash
investments that serve as collateral for financial instruments
such as letters of credit are classified as restricted.
Restricted cash in which the underlying instrument has a term of
greater than twelve months from the balance sheet date are
classified as non-current.
62
Management determines the appropriate classification of cash
investments at the time of purchase and evaluates such
designation as of each balance sheet date. All cash investments
to date have been classified as
available-for-sale
and carried at fair value with related unrealized gains or
losses reported as other comprehensive income (loss), net of
tax. Total realized gains during fiscal years 2005 and 2004 were
$1.4 million and $573,000, respectively. Our cash and cash
equivalents, short-term investments and long-term investments
consisted of the following as of December 31, 2005 and 2004
(in thousands):
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
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|
Classified on Balance Sheet as:
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|
|
|
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|
|
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|
|
|
|
|
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|
Restricted
|
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|
Restricted
|
|
|
|
Purchase/
|
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|
Gross
|
|
|
Gross
|
|
|
|
|
|
Cash and
|
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|
Cash and
|
|
|
Cash and
|
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|
|
Amortized
|
|
|
Unrealized
|
|
|
Unrealized
|
|
|
Aggregate
|
|
|
Cash
|
|
|
Investments,
|
|
|
Investments,
|
|
|
|
Cost
|
|
|
Gains
|
|
|
Losses
|
|
|
Fair Value
|
|
|
Equivalents
|
|
|
Current
|
|
|
Non-Current
|
|
|
As of December 31, 2005:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and certificates of deposits
|
|
$
|
6,027
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
6,027
|
|
|
$
|
4,030
|
|
|
$
|
|
|
|
$
|
1,997
|
|
Money market
|
|
|
819
|
|
|
|
|
|
|
|
|
|
|
|
819
|
|
|
|
819
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
6,846
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
6,846
|
|
|
$
|
4,849
|
|
|
$
|
|
|
|
$
|
1,997
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2004:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and certificates of deposits
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|
$
|
55,240
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|
|
$
|
|
|
|
$
|
|
|
|
$
|
55,240
|
|
|
$
|
30,984
|
|
|
$
|
21,933
|
|
|
$
|
2,323
|
|
Money market
|
|
|
10,867
|
|
|
|
|
|
|
|
|
|
|
|
10,867
|
|
|
|
10,867
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
66,107
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
66,107
|
|
|
$
|
41,851
|
|
|
$
|
21,933
|
|
|
$
|
2,323
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
Concentrations
of Credit Risk
Financial assets that potentially subject us to significant
concentrations of credit risk consist principally of cash, cash
equivalents, short-term investments, and trade accounts
receivable. We maintain our cash and cash equivalents and
short-term investments with four separate financial
institutions. We market and sell our products throughout the
world and perform ongoing credit evaluations of our customers.
We maintain reserves for potential credit losses. For the years
ended December 31, 2005, 2004, and 2003, no customer
accounted for more than 10% of total revenue.
Fair
Value of Financial Instruments
Our financial instruments consist of cash and cash equivalents,
short-term investments, restricted cash and investments,
long-term investments, equity investments, accounts receivable,
accounts payable and debt. We believe the reported carrying
amounts of our financial instruments approximates fair value,
based upon the short maturity of cash equivalents, short-term
investments, accounts receivable and payable, and based on the
current rates available to it on similar debt issues.
Foreign
Currency
We license products and maintain significant operations in
foreign countries. Fluctuations in the value of foreign
currencies, principally the Euro, relative to the United States
dollar have impacted our operating results in the past and may
do so in the future. We expect that international license,
maintenance and consulting revenues will continue to account for
a significant portion of our total revenues in the future. We
pay the expenses of our international operations in local
currencies and do not currently engage in hedging transactions
with respect to such obligations.
Equity
Investments
Our equity investments consist of equity investments in public
and non-public companies that are accounted for under either the
cost method of accounting or the equity method of accounting.
Equity investments are accounted for under the cost method of
accounting when we have a minority interest and do not have the
ability to exercise significant influence. These investments are
classified as available for sale and are carried at fair value
when readily determinable market values exist or at cost when
such market values do not exist. Adjustments to fair value are
recorded as a component of other comprehensive income unless the
investments are considered
63
permanently impaired in which case the adjustment is recorded
as a component of other income (expense), net in the
consolidated statement of operations. Equity investments are
accounted for under the equity method of accounting when we have
a minority interest and have the ability to exercise significant
influence. These investments are classified as available for
sale and are carried at cost with periodic adjustments to
carrying value for equity in net income (loss) of the equity
investee. Such adjustments are recorded as a component of other
income, net. Any decline in value of our investments, which is
other than a temporary decline, is charged to earnings during
the period in which the impairment occurs. The total fair value
of our cost-method, long-term equity investments in public and
non-public companies as of December 31, 2004 was $574,000.
These investments were liquidated in 2005 and a net gain of
$17,000 was recorded.
Controls
and Procedures
Disclosure
Controls and Procedures
Our Chief Executive Officer and our Chief Financial Officer are
responsible for establishing and maintaining disclosure
controls and procedures (as defined in the rules
promulgated under the Securities Exchange Act of 1934, as
amended) for our company. Based on their evaluation of our
disclosure controls and procedures (as defined in the rules
promulgated under the Securities Exchange Act of 1934), our
Chief Executive Officer and our Chief Financial Officer
concluded that our disclosure controls and procedures were not
effective as of December 31, 2005. This conclusion was
based on the identification of one material weakness in internal
control over financial reporting as of December 31, 2005,
as described in the following subsection.
Managements
Report on Internal Control Over Financial
Reporting
Our management is responsible for establishing and maintaining
adequate internal control over financial reporting. Our internal
control system was designed to provide reasonable assurance to
our management and board of directors regarding the preparation
and fair presentation of published financial statements. All
internal control systems, no matter how well designed, have
inherent limitations. Therefore, even those systems determined
to be effective can provide only reasonable assurance with
respect to financial statement preparation and presentation. An
internal control material weakness is a significant deficiency,
or aggregation of deficiencies, that does not reduce to a
relatively low level the risk that material misstatements in
financial statements will be prevented or detected on a timely
basis by employees in the normal course of their work. An
internal control significant deficiency, or aggregation of
deficiencies, is one that could result in a misstatement of the
financial statements that is more than inconsequential.
Our management assessed the effectiveness of our internal
control over financial reporting as of December 31, 2005,
and this assessment identified one material weakness. Further,
we restated our operating results for the year ended
December 31, 2004, due to the subsequent determination that
an embedded derivative existed in our convertible notes that
should have been separately accounted for as a liability.
As of December 31, 2005, we did not have a sufficient
number of experienced personnel in our accounting and finance
organization to facilitate an efficient financial statement
close process and permit the preparation of our financial
statements in accordance with generally accepted accounting
principles. For example, there were a significant number of
adjustments to our financial statements during the course of the
2005 audit, at least one of which was individually material and
required us to make the restatement described above. Our
personnel also lacked certain required skills and competencies
to oversee the accounting operations and perform certain
important control functions, such as the review, periodic
inspection and investigation of transactions of our foreign
locations. We consider this to be a deficiency that is also a
material weakness in the operation of entity-level controls. If
we are not successful in remedying the deficiencies that caused
this material weakness, there is more than a remote likelihood
that our quarterly or annual financial statements could be
materially misstated, which could require a restatement.
As our future staffing is dependent upon filling open positions
and retaining existing employees, we are currently unable to
determine when this material weakness will be fully remediated.
In June 2006 William Meyer resigned as our Chief Financial
Officer, a position Mr. Meyer had held since April 2003.
Mr. Meyers departure compounds our staffing needs and
will increase the time it will take to fully remediate this
material weakness.
In making its assessment of internal control over financial
reporting, management used the criteria issued by the Committee
of Sponsoring Organizations of the Treadway Commission (COSO) in
Internal Control-Integrated
64
Framework. Because of the material weakness described in the
preceding paragraphs, our management believes that, as of
December 31, 2005, our internal control over financial
reporting was not effective based on those criteria.
Changes
in Internal Control Over Financial Reporting
There were no changes in our internal control over financial
reporting during our fourth fiscal quarter of 2005 or our first
fiscal quarter of 2006 that have materially affected, or are
reasonably likely to materially affect, our internal control
over financial reporting.
Limitations
on the Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief
Financial Officer, does not expect that our disclosure controls
and procedures or our internal controls will prevent all error
and fraud. A control system, no matter how well conceived and
operated, can provide only reasonable, not absolute, assurance
that the objectives of the control system are met. Further, the
design of a control system must reflect the fact that there are
resource constraints, and the benefits of controls must be
considered relative to their costs. Because of the inherent
limitations in all control systems, no evaluation of controls
can provide absolute assurance that all control issues and
instances of fraud, if any, within the company have been
detected. These inherent limitations include the realities that
judgments in decision-making can be faulty, and that breakdowns
can occur because of simple error or mistake. Additionally,
controls can be circumvented by the individual acts of some
persons, by collusion of two or more people, or by management
override of the controls. The design of any system of controls
also is based in part upon certain assumptions about the
likelihood of future events, and there can be no assurance that
any design will succeed in achieving its stated goals under all
potential future conditions; over time, controls may become
inadequate because of changes in conditions, or the degree of
compliance with the policies or procedures may deteriorate.
Because of the inherent limitations in a cost- effective control
system, misstatements due to error or fraud may occur and not be
detected. Our disclosure controls and procedures are designed to
provide reasonable assurance of achieving their objectives.
65
BUSINESS
Overview
BroadVision solutions help enable customers to rapidly increase
revenues and reduce costs by moving business interactions and
transactions to personalized self-service via the web. Our
portal and commerce suites offer rich functionality out of the
box and are easily configured for each customers
e-business
environment.
Over 1,000 customers including U.S. Air Force,
Lockheed Martin, Netikos, Circuit City, Iberia L.A.E. and
Vodafone have licensed BroadVision solutions to
power and personalize their mission-critical web initiatives.
Industry
Background
E-Business
has become an integral part of doing business and organizations
are looking for ways to reduce costs, improve productivity and
increase revenues by moving more business processes online.
Achieving this goal is complicated by the proliferation of
websites and rapid acquisition of
e-business
solutions that occurred during the Internet bubble years. This
often resulted in systems that were poorly integrated into
companies overall enterprise architecture, preventing
companies from empowering end users to interact with back-end
systems to accomplish their goals.
By providing a way for enterprises to quickly assemble and
deploy web-based business processes that tap into their
resources, organizations can dramatically reduce the cost and
improve the quality of interactions between employees, customers
and business partners.
A significant number of industry analysts have highlighted the
ways in which organizations can reduce costs and improve
customer satisfaction by implementing a self-service model,
including online shopping and call center operations. This trend
is especially evident over the past few years at airport
check-in and photo-processing kiosks. In addition to
accelerating the response time for the consumer, web-based
self-service applications also enable organizations to collect
valuable market research data about their customers.
BroadVision
Solution
BroadVision is unique in offering a self-service solution that
tightly integrates portal and commerce on a single, secure, high
performance framework that also enables advanced personalization
and seamless integration to enterprise systems.
The following are key capabilities of the BroadVision
self-service suite:
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Scalability Advanced load balancing and
multi-layered caching allow BroadVision applications to support
large numbers of concurrent customers and transactions.
|
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|
Personalization BroadVisions
advanced personalization technology, including session and
event-based observations and transaction information, provide a
better understanding of site visitors and allow our customers to
dynamically tailor content to them.
|
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|
Ease of use BroadVision applications and
tools are designed with graphical user interfaces that allow
non-technical business managers to modify business rules and
content in real time.
|
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Unification BroadVisions robust
self-service framework pre-integrates the technologies necessary
to deploy content-rich, process-aware, user-centric portals,
including data integration, business logic, process logic and
user experience.
|
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|
All-in-one
solution BroadVision provides a significant
portion of needed functionality
out-of-the-box.
This accelerates time to value and reduces Information
Technology cost and complexity.
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|
Legacy integration A comprehensive set
of application programming interfaces (APIs) allows for rapid,
seamless integration with a variety of legacy business systems
such as Oracle, PeopleSoft, SAP and custom mainframe systems.
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66
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|
Secure transaction
processing BroadVision applications provide
secure handling of a wide range of commercial and financial
services transactions including order pricing and
discount/incentive handling, tax computation, shipping and
handling charges, payment authorization, credit card processing,
order tracking, news and stock feeds through a combination of
built-in functionality and integration with third-party products.
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|
Multi-platform availability BroadVision
applications are optimized for a variety of hardware and
software platforms including IBM AIX, Sun Solaris, Microsoft
Windows NT and Hewlett-Packards HP-UX. Supported databases
include Oracle, Sybase, Informix, IBM and Microsoft SQL Server.
Supported application servers include WebLogic, WebSphere and
SunOne. BroadVision also supports Open Source platforms, such as
Linux with Jboss and Hypersonic.
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Multilingual/multicurrency BroadVision
applications are global ready and designed to support multiple
languages (Arabic, Chinese, Hebrew, Japanese, Korean, Slovakian,
Turkish and most Western European languages) and a wide range of
currencies, including the euro.
|
Products
BroadVision
Portaltm
Connects visitors to personalized views of information,
resources and business processes stored in diverse internal and
external legacy information systems. Easy to use and manage, it
supports collaborative business processes through self-serviced
microsites.
BroadVision
Commercetm
Transacts the entire sales process from lead generation to sales
execution to customer support and allows management of
business-to-business
and
business-to-consumer
channels through a single application. Delivers advanced
personalization capabilities and
easy-to-use
catalog management tools.
BroadVision
Processtm
Transforms costly, people-intensive processes and collaborations
into web-based self-service processes. Allows business analysts
and technical staff to design and deploy solutions in days, not
months, significantly reducing IT cost and accelerating time to
implementation.
BroadVision
Self-Service Extensions
The following extensions build on the core functionality of
BroadVisions self-service applications:
BroadVision
eMarketingtm
Complements BroadVision Commerce with closed-loop campaign
management. Makes it easy to segment prospects and customers and
deliver personalized, relevant and timely offers via web,
e-mail or
both. Integrated reporting automatically gathers and presents
the information organizations need to discover the marketing
approach that works best.
BroadVision
Shopping
Servicestm
Gives BroadVision Portal customers basic shopping cart and
checkout capabilities to sell goods or services while still
maintaining control and building value on one portal
infrastructure. It is an extension of rather than a replacement
for BroadVision Commerce.
BroadVision
Content
Servicestm
Provides a simple, direct way for non-technical users to manage
content and helps organizations deliver accurate, targeted
content in a scalable, cost-effective way. Content Services
empowers business users with
67
easy-to-use
content creation tools, while providing secure access controls,
role-based user interfaces and version controls.
BroadVision
QuickSilver®tm
Provides powerful features for creating and publishing lengthy,
complex documents supporting multiple output formats (including
HTML, PDF and Postscript) and automatic publishing of
personalized content to BroadVision Portal. Assemble
publications from a variety of text, graphic and database
sources, including Microsoft Word, AutoCad, Microsoft Excel and
Oracle. Includes a complete XML authoring environment.
BroadVision
Staging
Servicestm
Simplifies the process of moving content from multiple systems
to the production environment. Reduces the cost of managing
BroadVision application assets and improves process
standardization for enterprise staging initiatives.
Product
Bundles
BroadVision also offers the following product bundles:
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TAS (Total Agility Suite) is a risk-free introduction to
BroadVision Process. It includes a
60-day
BroadVision Process software license (Designer, Developer and
Server Editions) and the necessary training and specialized
services to develop a mutually agreed upon web-based
self-service business process. Customers purchase the bundle, or
the license expires, after the
60-day trial.
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PAS (Portal Agility Suite) is a pre-integrated product
bundle that includes BroadVision Portal, BroadVision Process and
selected BroadVision Content Services; an
all-in-one
solution that makes it easier (through BroadVision Process) to
keep pace with changing business requirements.
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CAS (Commerce Agility Suite) is a pre-integrated product
bundle that includes BroadVision Commerce, BroadVision
eMarketing, BroadVision Process and selected BroadVision content
services; an
all-in-one
commerce solution that makes it easier (through BroadVision
Process) to keep pace with changing business requirements.
|
Technology
Open
Standards-Based Architecture
BroadVision solutions are built on object-oriented application
code written in J2EE programming environments, including Java
and JavaScript, and where appropriate C++, which allows
developers and system integrators to use, integrate, modify,
adapt or extend the applications with minimal impact on other
areas to create a rapidly customized product that meets specific
business requirements. BroadVision Process leverages a proven
open source stack at the platform layers to reduce total cost of
ownership and optimize performance.
Support for the J2EE and CORBA standards for object-oriented
computing enables high-volume performance, flexible application
deployment and easy integration with third-party or legacy
applications. Our applications fully support XML, which is the
emerging standard for managing and exchanging data between
e-business
systems as well as for re-purposing and sending information to
wireless devices.
In addition, we use other widely accepted standards in
developing our products, including Web Services, Structured
Query Language (SQL) for accessing relational database
management systems; Common Gateway Interface (CGI) and Hypertext
Transfer Protocol (HTTP) for web access; Netscape Application
Programming Interface (NAPI) for access to Netscapes web
servers; Secure Socket Layer (SSL) for secure transmissions over
networks; and the RC2 and MD5 encryption algorithms supplied by
RSA Security.
Our applications can be operated in conjunction with relational
database management systems provided by IBM Corporation,
Informix, Microsoft, Oracle and Sybase. Supported application
servers include WebLogic, WebSphere, SunOne and JBoss.
68
Support
for Open Source
BroadVision Process and BroadVision Portal give organizations
the option of running on a commercially available technology
stack described above or on an open source stack. While our
commitment to commercial platforms has not changed, we recognize
that our customers are adopting Open Source as a platform
because of its total cost of ownership and runtime benefits.
Alliances
We recognize that todays organizations require an open,
partner-based approach to
e-business.
Accordingly, we have assembled a team of
best-of-breed
partners with the skills, services and value-added products
necessary to develop, market, sell and deliver the most
competitive web-based self-service solutions available.
Consulting
Partners
BroadVisions systems integration and consulting services
partners deliver strategic business solutions to companies.
These partners offer global deployment experience, strong
vertical market expertise, and process-based solutions. Our
contractual agreements with these consulting partners motivate
them to build a development expertise in BroadVisions
technology and sell our products and services to potential
customers, thus enabling us to extend the reach of our products
and/or services. Revenue generated from consulting partners in
recent years has not been significant.
Technology/OEM
Partners
BroadVisions technology partners include Value-Added
Resellers (VAR) and Independent Software Vendors (ISV) who build
and deploy BroadVision-based vertical and horizontal software
solutions. Our goal is to create value-added solutions that
address a customers specific business and IT goals. In
addition, technology partners include distributors who are
authorized representatives that market, distribute, resell and
support BroadVisions products and services or application
service providers who develop, host and support value-added
application solutions based on our technology. The contracts
that govern our relationships with these partners are generally
terminable by either party upon 30 to 90 days notice. In
most cases, technology/ OEM partners license our products to
users under the terms of a reseller or distribution agreement.
Revenue generated from technology/OEM partners in recent years
has not been significant.
Services
BroadVision provides a full spectrum of global services to
contribute to the success of our customers, including business
consulting services, implementation services related to our
software and related software, migration and performance
services and ongoing training and support.
Consulting
Services
BroadVision Global Services (BVGS) provides strategic services
that help customers achieve maximum business value from their
BroadVision applications and implementation services that ensure
rapid deployment. BVGS leverages a global network of certified
professionals to provide customers with high value at low cost.
Our comprehensive migration services, including migration
planning and optimization, provide a cost effective approach to
migration and protect our customers investment in critical
business applications.
Education
Services
Coursework is available for Content Managers, Technical
Developers and System Administrators through BroadVision
Education Services. Customers and partners can arrange for
on-site
programs, which keep employees at the office, or take advantage
of regularly scheduled public courses at BroadVision locations.
69
Support
and Maintenance Services
BroadVision offers a tiered support and maintenance program to
better serve the needs of our worldwide customer base. Standard
Support provides technical assistance during regular business
hours; Enterprise Support is designed for customers with
mission-critical environments, providing customers with access
to support experts 24 hours a day, 7 days a week; and
Personalized Support assigns a specific individual to a customer
along with other customer specified support services, including
on-site
support engineers. We have technical support centers in North
America, Europe and Asia. Under our standard maintenance
agreement, we provide telephone support and upgrade rights to
new releases, including patch releases (as necessary) and
product enhancements (when and if available).
Customers
BroadVision customers have achieved significant business value
by moving interactions and transactions to web-based self
service.
As of December 31, 2005, we had licensed our products to
over 1,000 end-user customers and partners. During each of the
years ended December 31, 2005, 2004 and 2003, no customer
accounted for more than 10% of our total revenues.
BroadVisions software is deployed in all major industry
groups, including financial services, government, healthcare,
manufacturing, retail and telecommunications. Customers include
U.S. Air Force, Lockheed Martin, Netikos, Circuit City, Iberia
L.A.E., Vodafone, Xerox, CIBC, ENI, U.S. Postal Service,
Infineon, Merck Medco, HP Shopping and KPN N.V.
Sales and
Marketing
We market our products primarily through a direct sales
organization with operations in North America, Europe and
Asia/Pacific. On December 31, 2005, our direct sales
organization included 29 sales representatives, managers and
sales support personnel.
We have sales offices located throughout the world to support
the sales and marketing of our products. In support of the
Americas sales and marketing organizations, offices located in
the United States are in California and Massachusetts.
Sales and marketing offices for our Europe region are located in
France, Germany, Italy, the Netherlands, Spain, Sweden,
Switzerland and the United Kingdom.
Our sales and marketing offices in the Asia
Pacific/Japan/India/Middle East region are located in India and
Japan.
Initial sales activities typically involve discussion and review
of the potential business value associated with the
implementation of a BroadVision solution, a demonstration of our
self-service web applications capabilities at the
prospects site, followed by one or more detailed technical
reviews. The sales process usually involves collaboration with
the prospective customer in order to specify the scope of the
solution. Our global services organization helps customers to
design, develop and deploy their
e-business
solutions.
As of December 31, 2005, 8 employees were engaged in a
variety of marketing activities, including product planning,
marketing material development, managing press coverage and
other public relations, identifying potential customers,
attending trade shows, seminars and conferences, establishing
and maintaining close relationships with recognized industry
analysts and maintaining our website.
Our marketing efforts are targeted at:
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|
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|
|
developing and supporting marketing programs to enhance customer
loyalty;
|
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|
|
building market awareness through press and industry analyst
relations;
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|
generating and developing marketing and sales leads;
|
70
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|
|
producing and maintaining marketing collateral and sales tools;
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|
|
developing and supporting marketing programs associated with
various alliance partners; and
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|
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developing materials associated with industry solutions.
|
Competition
If we fail to compete successfully with current or future
competitors, we may lose market share. The market for
self-service web applications is rapidly evolving and intensely
competitive. Our customers requirements and the technology
available to satisfy those requirements will continually change.
We expect competition in this market to persist and increase in
the future. Our primary competition currently includes:
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|
in-house development efforts by prospective customers or
partners;
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|
other vendors of application software or application development
platforms and tools directed at interactive commerce and portal
applications, such as Art Technology Group, BEA, IBM
Corporation, Microsoft, Oracle, SAP and Vignette; and
|
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|
|
|
web content developers that develop custom software or integrate
other application software into custom solutions.
|
The principal competitive factors affecting the market for our
products are:
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|
|
depth and breadth of functionality offered;
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|
|
personalization and other features;
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|
integration of portal applications and framework;
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|
availability of knowledgeable developers;
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time required for application deployment;
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reliance on industry standards;
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product reliability;
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proven track record;
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scalability;
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maintainability;
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product quality;
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price; and
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|
technical support.
|
Compared to us, many of these competitors and other current and
future competitors have longer operating histories and
significantly greater financial, technical, marketing and other
resources. As a result, they may be able to respond more quickly
to new or changing opportunities, technologies and customer
requirements. Many of these companies can use their greater name
recognition and more extensive customer base to gain market
share. Competitors may be able to undertake more extensive
promotional activities, adopt more aggressive pricing policies
and offer more attractive terms to purchasers. Current and
potential competitors may bundle their products to discourage
users from purchasing our products. In addition, competitors
have established or may establish cooperative relationships
among themselves or with third parties to enhance their
products. Accordingly, it is possible that new competitors or
alliances among competitors may emerge and rapidly acquire
significant market share. Competitive pressures may make it
difficult for us to acquire and retain customers and may require
us to reduce the price of our products.
71
Intellectual
Property and Other Proprietary Rights
Our success and ability to compete are dependent to a
significant degree on our proprietary technology. We hold a U.S.
patent, issued in January 1998 and expiring in August 2015, on
elements of the BroadVision
One-To-One
Enterprise product, which covers
e-commerce
operations common in todays web business. We also hold a
U.S. patent, issued in November 1996 and expiring in February
2014, acquired as part of the Interleaf acquisition, on the
elements of the extensible electronic document processing system
for creating new classes of active documents. The patent on
active documents (associating procedures to elements of an
electronic document) is fundamental and hard to avoid by some
modern document processing systems. Although we hold these
patents, they may not provide an adequate level of intellectual
property protection. In addition, litigation may be necessary in
the future to enforce our intellectual property rights, to
protect our trade secrets, to determine the validity and scope
of the proprietary rights of others, or to defend against claims
of infringement or invalidity. We cannot guarantee that
infringement or other claims will not be asserted or prosecuted
against us in the future, whether resulting from our
intellectual property or licenses from third parties. Claims or
litigation, whether successful or unsuccessful, could result in
substantial costs and diversions of resources, either of which
could harm our business.
We also rely on copyright, trademark, service mark, trade secret
laws and contractual restrictions to protect our proprietary
rights in products and services. We have registered
BroadVision, BroadVision
One-To-One,
iGuide and Interleaf as trademarks in
the United States and in other countries. It is possible that
our competitors or other companies will adopt product names
similar to these trademarks, impeding our ability to build brand
identity and possibly confusing customers.
As a matter of company policy, we enter into confidentiality and
assignment agreements with our employees, consultants and
vendors. We also control access to and distribution of our
software, documents and other proprietary information.
Notwithstanding these precautions, it may be possible for an
unauthorized third party to copy or otherwise obtain and use our
software or other proprietary information or to develop similar
software independently. Policing unauthorized use of our
products will be difficult, particularly because the global
nature of the Internet makes it difficult to control the
ultimate destination or security of software and other
transmitted data. The laws of other countries may afford us
little or no effective protection of our intellectual property.
Employees
As of December 31, 2005, we employed a total of 181
full-time employees, of whom 114 are based in
North America, 52 in Europe and 15 in Asia. Of these
full-time employees, 37 are in sales and marketing, 51 are in
product development, 71 are in global services and client
support, and 22 are in finance, administration and operations.
We believe that our future success depends on attracting and
retaining highly skilled personnel. We may be unable to attract
and retain high-caliber employees. Our employees are not
represented by any collective bargaining unit. We have never
experienced a work stoppage and consider our employee relations
to be good.
Facilities
We lease approximately 104,000 square feet of office space,
of which approximately 76% is in the United States. We occupy or
sublease 90% of the 104,000 square feet of our leased
office space.
At our headquarters, located in Redwood City, California, we
occupy approximately 30,000 square feet of office
facilities used for research and development, technical support,
sales, marketing, consulting, training and administration.
Additional leased domestic facilities include offices located in
Bellevue, WA., McLean, VA., New York, NY., Redwood City, CA.,
and Waltham, MA., which are primarily used for sales, marketing
and customer service activities. Leased facilities of
significant size located outside of the United States and used
primarily for sales, marketing, customer support and
administrative functions include facilities located in Vienna,
Austria; Paris, France; Ismaning, Germany; Reading, UK; Houten,
Netherlands; Madrid, Spain; Milan, Italy; Japan; and India.
We believe our facilities are suitable for their respective uses
and, in general, are adequate to support our current and
anticipated volume of business. We believe that suitable
additional space will be available to accommodate any necessary
or currently anticipated expansion of our operations.
72
Legal
Proceedings
We are subject to various claims and legal actions arising from
time to time in the ordinary course of business. In the opinion
of management, after consultation with legal counsel, we have
adequate defenses for each of the claims and actions, and we do
not expect their ultimate disposition to have a material effect
on our business, financial condition or results of operations.
Although management currently believes that the outcome of other
outstanding legal proceedings, claims and litigation involving
us will not have a material adverse effect on our business,
results of operations or financial condition, litigation is
inherently uncertain, and there can be no assurance that
existing or future litigation will not have a material adverse
effect on our business, results of operations or financial
condition.
MANAGEMENT
Executive
Officers, Directors and Key Employees
The names of current executive officers and members of our board
of directors and a brief biography for each of them are set
forth below:
|
|
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|
Name
|
|
Age
|
|
Principal Occupation/Position Held with the Company
|
|
Pehong Chen
|
|
|
48
|
|
|
Chairman of the Board of
Directors, President, Chief Executive Officer and Chief
Financial Officer
|
David L. Anderson
|
|
|
62
|
|
|
Managing Director, Sutter Hill
Ventures
|
James D. Dixon
|
|
|
62
|
|
|
Formerly an executive with
bankofamerica.com
|
Robert Lee
|
|
|
57
|
|
|
Formerly an executive with Pacific
Bell
|
Roderick C. McGeary
|
|
|
55
|
|
|
Formerly Chief Executive Officer,
Brience, Inc.
|
T. Michael Nevens
|
|
|
56
|
|
|
Former Managing Partner, McKinsey
& Company
|
Pehong Chen has served as Chairman of the Board, Chief
Executive Officer and President of the Company since its
incorporation in May 1993. From 1992 to 1993, Dr. Chen
served as the Vice President of Multimedia Technology at Sybase,
Inc., a supplier of client-server software products.
Dr. Chen founded and, from 1989 to 1992, served as
President of, Gain Technology, Inc., a provider of multimedia
applications development systems, which was acquired by Sybase,
Inc. Dr. Chen currently serves on the board of directors of
SINA.com and Tumbleweed Communications Corp. He received a B.S.
in Computer Science from National Taiwan University, an M.S. in
Computer Science from Indiana University and a Ph.D. in Computer
Science from the University of California at Berkeley.
David L. Anderson has served as a director of the Company
since November 1993. Since 1974, Mr. Anderson has been a
Managing Director of the General Partner of Sutter Hill
Ventures, a venture capital investment firm. Mr. Anderson
also serves on the board of directors of Dionex Corporation and
Molecular Devices Corporation, and on the board of directors of
several privately held companies. He holds a B.S. in Electrical
Engineering from the Massachusetts Institute of Technology and
an M.B.A. from Harvard Graduate School of Business
Administration.
James D. Dixon has served as a director of the Company
since January 2003. Prior to his retirement from Bank of America
in January 2002, Mr. Dixon served as an executive with
bankofamerica.com. From September 1998 to February 2000,
Mr. Dixon was Group Executive and Chief Information Officer
of Bank of America Technology & operations. From 1990
to 1998, before the merger of NationsBank Corporation and
BankAmerica Corporation, Mr. Dixon was President of
NationsBank Services, Inc. From 1986 to 1990, he also served as
Chief Financial Officer for Citizens and Southern Bank/Sovran, a
predecessor company to NationsBank. Mr. Dixon holds a B.A.
from Florida State University, a J.D. from University of Florida
School of Law, and he is a graduate of the executive M.B.A.
program at Stanford University. Mr. Dixon also serves on
the board of directors of CheckFree Corporation, a provider of
financial electronic commerce services and products, 724
Solutions Inc., a provider of mobile network technology and Rare
Hospitality International, Inc., a restaurant operator and
franchisor.
Robert Lee has served as a director of the Company since
August 2004. Mr. Lee was a corporate Executive Vice
President and President of Business Communications Services at
Pacific Bell, where he established two new
73
subsidiaries: Pacific Bell Internet Services and Pacific Bell
Network Integration. During his 26 year career at Pacific
Bell, Mr. Lee managed groups in operations, sales and
marketing. Mr. Lee served as Executive Vice President of
Marketing and Sales from 1987 to 1992. Mr. Lee serves on
the board of directors of Interland, which provides web hosting
for the small and medium business market, Netopia, which
manufactures and sells DSL internet routers for consumers and
small businesses, and Blue Shield of California, which provides
health insurance to members in California. Mr. Lee holds a
B.S. in Electrical Engineering from University of Southern
California and an M.B.A. from University of California at
Berkeley.
Roderick C. McGeary has served as a director of the
Company since April 2004. Mr. McGeary served as Chief
Executive Officer of Brience, Inc. from July 2000 to July 2002.
From April 2000 to June 2000, he served as a Managing Director
of KPMG Consulting LLC, a wholly owned subsidiary of
BearingPoint, Inc. (formerly KPMG Consulting, Inc.). From August
1999 to April 2000, he served as Co-President and Co-Chief
Executive Officer of BearingPoint, Inc. From January 1997 to
August 1999, he was employed by KPMG LLP as its Co-Vice Chairman
of Consulting. Prior to 1997, he served in several capacities
with KPMG LLP, including audit partner for technology clients.
Mr. McGeary also serves on the board of directors of
BearingPoint, Inc. and Cisco Systems, Inc. Mr. McGeary is a
Certified Public Accountant and holds a B.S. in Accounting from
Lehigh University.
T. Michael Nevens has served as a director of the
Company since April 2003. Prior to his retirement from
McKinsey & Company, a management consulting firm, in
December 2002, Mr. Nevens served as a director and was
managing partner of McKinsey & Companys Global
High Tech Practice and founder and Chairman of its IT Vendor
Relations Committee. Prior to joining McKinsey in 1980,
Mr. Nevens spent five years in several staff positions with
the U.S. House of Representatives and various political
organizations. He also currently serves on the board of
directors of Borland Software Corporation. Mr. Nevens holds
a B.S. in Physics from the University of Notre Dame and an M.S.
in Industrial Administration from the Krannert School of Purdue
University.
Code
of Business Ethics and Conduct
We have adopted a Code of Business Ethics and Conduct (the
Code of Conduct) that applies to all of its
directors, officers and employees. The text of the Code of
Conduct is posted on our website at www.broadvision.com. If we
make any substantive amendment to the Code of Conduct or grants
any waiver from a provision of the Code of Conduct to any
executive officer or director, we will promptly disclose the
nature of the amendment or waiver on our website.
Audit
Committee Financial Expert
Our Audit Committee is presently composed of three non-employee
directors: Messrs. Dixon (Chairman), Nevens and McGeary.
Our Board has determined that all members of the Audit Committee
are independent (as independence is currently defined in
Rule 4350(d)(2)(A) of the Nasdaq listing standards). Our
Board has determined that Mr. Dixon qualifies as an
audit committee financial expert, as defined in
applicable Securities and Exchange Commission (SEC)
rules. Our Board made a qualitative assessment of
Mr. Dixons level of knowledge and experience based on
a number of factors, including his formal education and
experience as a chief financial officer for Citizens and
Southern Bank/Sovran, a predecessor company to NationsBank.
Compensation
Committee Interlocks and Insider Participation
None of our executive officers serves as a member of the board
of directors or compensation committee of any entity that has
one or more executive officers who serve on our board of
directors or compensation committee.
EXECUTIVE
COMPENSATION
Compensation
of Directors
Directors currently do not receive any cash compensation from us
for their services as members of the Board of Directors,
although they are reimbursed for certain expenses incurred in
connection with attendance of Board and Committee meetings in
accordance with Company policy. Each of our directors is
eligible to receive stock option grants under the Companys
1996 Equity Incentive Plan (the Incentive Plan).
74
Compensation
of Executive Officers
Summary
of Compensation
The following table shows for the fiscal years December 31,
2003, 2004 and 2005, compensation awarded or paid to, or earned
by, our Chief Executive Officer, our other most highly
compensated executive officer at December 31, 2005 and one
individual who was an executive officer until his departure
during fiscal 2005 (the Named Executive Officers):
Summary
Compensation Table
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long Term
|
|
|
|
|
|
|
Compensation
|
|
|
|
|
Annual Compensation(1)
|
|
Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
|
|
|
|
|
|
|
|
|
Annual
|
|
Other Annual
|
|
Underlying Options
|
|
All Other Annual
|
Name and Principal Position
|
|
Year
|
|
Salary ($)
|
|
Bonus ($)
|
|
Compensation ($)(2)
|
|
(#)
|
|
Compensation ($)
|
|
Pehong Chen
|
|
|
2005
|
|
|
$
|
350,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chairman of the Board,
|
|
|
2004
|
|
|
|
350,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President, Chief
|
|
|
2003
|
|
|
|
350,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officer and interim Chief
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William E. Meyer(3)
|
|
|
2005
|
|
|
$
|
224,000
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Vice President
|
|
|
2004
|
|
|
|
224,000
|
|
|
|
10,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and Chief Financial
|
|
|
2003
|
|
|
|
168,000
|
|
|
|
10,000
|
|
|
|
|
|
|
|
240,000
|
|
|
|
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alex Kormushoff(4)
|
|
|
2005
|
|
|
$
|
203,360
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
$
|
69,000
|
|
Senior Vice President,
|
|
|
2004
|
|
|
|
205,000
|
|
|
|
|
|
|
|
|
|
|
|
200,000
|
|
|
|
56,250
|
|
Worldwide Field
|
|
|
2003
|
|
|
|
200,000
|
|
|
|
18,750
|
|
|
|
|
|
|
|
|
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|
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|
|
Operations
|
|
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|
(1) |
|
Includes amounts earned but deferred at the election of the
Named Executive Officers under 401(k) plan. |
|
|
|
(2) |
|
As permitted by rules promulgated by the SEC no amounts are
shown with respect to certain perquisites where such
amounts do not exceed the lesser of 10% of the sum of the amount
in the salary and bonus columns or $50,000. |
|
|
|
(3) |
|
Mr. Meyer joined the Company as Executive Vice President
and Chief Financial Officer on April 1, 2003, a position he
held until his departure from the Company in June 2006. |
|
|
|
(4) |
|
Mr. Kormushoff joined the Company on September 23,
2002 and became Senior Vice President, Global Services on
July 1, 2003. Mr. Kormushoff was Senior Vice
President, Worldwide Field Operations from October 2004 until
his departure in December, 2005. Other compensation paid to
Mr. Kormushoff includes payment of commissions on sales. |
Stock
Option Grants and Exercises
We grant options to our executive officers under the Incentive
Plan. As of December 31, 2005, options to purchase a total
of 3,756,932 shares were outstanding under the Incentive
Plan and options to purchase 3,378,775 shares remained
available for grant thereunder.
75
The following tables show for the fiscal year ended
December 31, 2005, certain information regarding options
granted to, exercised by, and held at year end by, the Named
Executive Officers.
Fiscal
Year End Option Values of Unexercised Options
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|
Number of Securities
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|
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|
Underlying Unexercised
|
|
|
Value of Unexercised In-The-
|
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Shares
|
|
|
|
|
|
Options at December 31, 2005
|
|
|
Money Options at
|
|
|
|
Acquired on
|
|
|
Value Realized
|
|
|
(#)(2)
|
|
|
December 31, 2005($)(3)
|
|
Name
|
|
Exercise (#)
|
|
|
($)(1)
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Pehong Chen
|
|
|
|
|
|
|
|
|
|
|
1,704,444
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William E. Meyer
|
|
|
|
|
|
|
|
|
|
|
240,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alex Kormushoff
|
|
|
|
|
|
|
|
|
|
|
243,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Value received is based on the per share deemed values of our
common stock on the date of exercise, determined after the date
of grant solely for financial accounting purposes, less the
exercise price, without taking into account any taxes that may
be payable in connection the transaction. |
|
|
|
(2) |
|
Reflects vested and unvested shares at December 31, 2005.
Options granted are immediately exercisable, but are subject to
our right to repurchase unvested shares on termination of
employment. |
|
|
|
(3) |
|
Fair market value of our common stock at December 31, 2005,
which was $0.49 per share, less the exercise price of the
options. |
Equity
Compensation Information
The following table provides certain information with respect to
all of our equity compensation plans in effect as of
December 31, 2005.
Equity
Compensation Plan Information
|
|
|
|
|
|
|
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|
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|
|
|
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|
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|
Number of securities
|
|
|
|
|
|
|
|
|
|
remaining available
|
|
|
|
Number of securities
|
|
|
Weighted-average
|
|
|
for issuance under
|
|
|
|
to be issued upon
|
|
|
exercise price of
|
|
|
equity compensation
|
|
|
|
exercise of outstanding
|
|
|
outstanding options,
|
|
|
plans (excluding
|
|
|
|
options, warrants and
|
|
|
warrants and rights
|
|
|
securities reflected in
|
|
Plan Category
|
|
rights (a)
|
|
|
(b)
|
|
|
column (a)) (c)
|
|
|
Equity compensation plans approved
by security holders(1)
|
|
|
4,469,745
|
|
|
$
|
20.63
|
|
|
|
3,498,794
|
|
Equity compensation plans not
approved by security holders(2)
|
|
|
587,838
|
|
|
$
|
16.70
|
|
|
|
2,741,744
|
|
Total
|
|
|
5,057,583
|
|
|
$
|
20.17
|
|
|
|
6,240,538
|
|
|
|
|
(1) |
|
Includes the following: Incentive Plan, Employee Stock Purchase
Plan, 1993 Interleaf Stock Option Plan and 1994 Interleaf
Employee Stock Option Plan. |
|
(2) |
|
Includes the following: the 2000 Non-Officer Equity Incentive
Plan (the 2000 Non-Officer Plan) and non-plan grants. |
The 2000 Non-Officer Plan, which was in effect as of
December 31, 2002, was adopted by the Board in 2000 and
provided for grants of (a) Nonstatutory Stock Options,
(b) stock bonuses and (c) rights to purchase
restricted stock, to employees (who are not officers or
directors of the Company) and consultants of the Company.
Stockholder approval of the 2000 Non-Officer Plan and amendments
thereto have not been required to date.
76
An aggregate of 666,667 (as adjusted for subsequent stock
splits) shares of common stock were initially reserved for
issuance under the plan. Certain other provisions of the 2000
Non-Officer Plan are as follows:
|
|
|
|
|
Eligibility. Nonstatutory stock options, stock
bonuses and rights to purchase restricted stock may be granted
under the 2000 Non-Officer Plan only to employees (who are not
officers or directors of the Company) and consultants of the
Company and its affiliates.
|
|
|
|
Terms of Options. The exercise price for nonstatutory
stock options available for grant under the 2000 Non-Officer
Plan shall be determined by the Board and shall not be less than
85% of the fair market value of the stock subject to the option
on the date of grant. Payment of the exercise price may be in
the form of either (a) cash at the time the option is
exercised or (b) at the discretion of the Board or the
Non-Officer Option Committee, at the time of the grant of the
option, (a) by delivery to the Company of other common
stock of the Company, (b) according to a deferred payment
or other arrangement or (c) in any other form of legal
consideration that may be acceptable to the Board. The term of a
nonstatutory stock option granted under the 2000 Non-Officer
Plan may not exceed ten years. Options under the 2000
Non-Officer Plan typically vest at the rate of 25% on the first
anniversary of the vesting commencement date and 25% annually
thereafter until fully vested or the optionholders service
to the Company has terminated. The Board has the power to
accelerate the time during which an option may vest or be
exercised and may also authorize the modification of any
outstanding option with the consent of the optionholder.
|
|
|
|
Adjustment Provisions. The number of shares available
for future grant and for outstanding but unexercised options and
the exercise price of outstanding options are subject to
adjustment for any merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in
property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate
structure or other similar transaction.
|
|
|
|
Corporate Transactions. The 2000 Non-Officer Plan
provides that, in the event of a sale of substantially all of
the assets of the Company, specified types of merger or
consolidation with or into any other entity or person in which
the Company is not the continuing or surviving entity or in
which the Company is the surviving entity but the shares of
common stock outstanding immediately prior to the transaction
are converted by virtue of the transaction into other property,
then any surviving corporation shall either assume options
outstanding under the 2000 Non-Officer Plan or substitute
similar options for those outstanding under the 2000 Non-Officer
Plan (including an award to acquire the same consideration paid
to stockholders in the change in control). If any surviving
corporation does not either assume options outstanding under the
2000 Non-Officer Plan, or substitute similar options, then, with
respect to stock awards held by persons then performing services
as employees, directors or consultants, the time during which
such stock awards may be exercised shall be accelerated and the
stock awards terminated if not exercised prior to such event.
With respect to any other stock awards outstanding under the
2000 Non-Officer Plan, such stock awards shall terminate if not
exercised prior to such event. The acceleration of options in
the event of an acquisition or similar corporate event may be
viewed as an anti-takeover provision, which may have the effect
of discouraging a proposal to acquire or otherwise obtain
control of the Company.
|
Severance
Plans and Separation Agreement
Executive Severance Benefit Plan. The
Companys Executive Severance Benefit Plan (the
Severance Plan) was established effective on
May 22, 2003. The purpose of the Severance Plan is to
provide for the payment of severance benefits to certain
eligible employees of the Company whose employment with the
Company is involuntarily terminated. For purposes of the
Severance Plan, an eligible employee is defined as an employee
of the Company (i) who (a) reports directly to the CEO
of the Company (Group 1) or (b) is a Senior
Vice President or the Vice President and Corporate Financial
Controller of the Company and does not report directly to the
CEO (Group 2), (ii) whose employment is
terminated by the Company pursuant to an involuntary termination
without cause or a reduction in force and (ii) who is
notified by the Company in writing that he or she is eligible
for participation in the Plan. The determination of whether an
employee is an eligible employee is made by the Company, in its
sole discretion; severance payments and benefits are made
according to which Group an employee is in.
77
Pursuant to the Severance Plan, each eligible employee receives
a cash severance benefit in accordance with the Companys
then current payroll practices and continued premium payments of
their employee benefits plans as follows:
Group
1
|
|
|
Completed Months of
|
|
Months of
|
Continuous Employment
|
|
Base Salary/Continued Benefits
|
|
0-3 months
|
|
3 months
|
4-12 months
|
|
6 months
|
13 or more months
|
|
6 months plus
1/4 month
per each
completed month of continuous
employment after 12 months up to a maximum of 9 months
|
Group
2
|
|
|
Completed Months of
|
|
Months of
|
Continuous Employment
|
|
Base Salary/Continued Benefits
|
|
0-3 months
|
|
2 months
|
4-12 months
|
|
4 months
|
13 or more months
|
|
4 months plus
1/6 month
per each
completed month of continuous
employment after 12 months up to a
maximum of 6 months
|
Dr. Chen is in Group 1.
Change of Control Severance Benefit Plan. The
Companys Change of Control Severance Benefit Plan (the
Change of Control Plan) was established effective on
May 22, 2003, and the Board formally designated plan
participants in July 2005. The purpose of the Change of Control
Plan is to provide for the payment of severance benefits to
designated participants whose employment with the Company is
involuntarily terminated within one month before or
24 months following a change of control of the Company. The
plan participants were designated as being in one of four
Levels, with all participants in a certain Level
being eligible for severance benefits as follows:
|
|
|
Level
|
|
Benefits
|
|
Level 1 Eligible
Employees
|
|
Cash
payment: lump-sum
payment equal to 100% of the greater of (i) sum of annual
salary and target bonus on the date of termination or
(ii) sum of annual salary and target bonus in effect
immediately prior to the change of control
|
|
|
Benefits:
continuation of benefits for 12 months
|
|
|
Outplacement
services: for
12 months
|
|
|
Acceleration of unvested stock
options: 25%, 37.5% or
50% of unvested stock options accelerate, based on completed
years of continuous employment of fewer than 3, three to
five or 5 or more, respectively
|
|
Level II Eligible
Employees
|
|
Cash
payment: lump-sum
payment equal to 100% of the greater of (i) sum of annual
salary and target bonus on the date of termination or
(ii) sum of annual salary and target bonus in effect
immediately prior to the change of control
|
|
|
Benefits:
continuation of
benefits for 12 months
|
|
|
Outplacement
services: for
12 months
|
|
|
Acceleration of unvested stock
options: 12.5%, 25%,
37.5% or 50% of unvested stock options accelerate, based on
completed months of continuous employment of 12 or fewer, 13 to
35, 36-59 and 60 or more, respectively
|
|
78
|
|
|
Level
|
|
Benefits
|
|
Level III Eligible
Employees
|
|
Cash
payment: lump-sum
payment equal to 50% of the greater of (i) sum of annual
salary and target bonus on the date of termination or
(ii) sum of annual salary and target bonus in effect
immediately prior to the change of control
|
|
|
Benefits:
continuation of benefits for 6 months
|
|
|
Outplacement
services: for
6 months
|
|
|
Acceleration of unvested stock
options: 12.5%, 25%,
37.5% or 50% of unvested stock options accelerate, based on
completed months of continuous employment of 12 or fewer, 13 to
35, 36-59 and 60 or more, respectively
|
|
Level IV Eligible
Employees
|
|
Cash
payment: lump-sum
payment equal to 25% of the greater of (i) sum of annual
salary and target bonus on the date of termination or
(ii) sum of annual salary and target bonus in effect
immediately prior to the change of control
|
|
|
Benefits:
continuation of benefits for 6 months
|
|
|
Outplacement
services: for
3 months
|
|
|
Acceleration of unvested stock
options: 12.5%, 25%,
37.5% or 50% of unvested stock options accelerate, based on
completed months of continuous employment of 12 or fewer, 13 to
35, 36-59 and 60 or more, respectively
|
Dr. Chen was designated by the Board as a Level I
Eligible Employee. Benefits payable to individuals under the
Change of Control Plan are offset by any other benefits paid to
such individual under other similar plans or arrangements,
including the Severance Plan.
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Since January 1, 2001, there has not been, nor is there
currently proposed, any transaction or series of similar
transactions to which we were or are a party in which the amount
involved exceeds or exceeded $60,000 and in which any director,
executive officer or beneficial holder of more than 5% of any
class of our voting securities or members of such persons
immediate family had or will have a direct or indirect material
interest other than as described under Management
and as described below. All future transactions between us and
any of our directors, executive officers or related parties will
be subject to the review and approval of our nominating and
corporate governance committee, compensation committee or other
committee comprised of independent, disinterested directors.
On November 18, 2005, our Chairman, Chief Executive
Officer, President, interim Chief Financial Officer and largest
stockholder, Dr. Pehong Chen, acquired, through Honu, all
of the Notes. Including accrued interest, the Notes represented
approximately $15.5 million in debt obligations as of
December 20, 2005. In order to relieve BroadVision from the
liquidity challenges presented by the Notes, Dr. Chen
agreed to cancel all amounts owed under the Notes in exchange
for 34,500,000 shares of BroadVision common stock at an
effective price per share of $0.45, representing a 25% discount
to the December 20, 2005 closing price of BroadVision
common stock of $0.60 per share. We refer to this as the
Note Conversion. In On March 8, 2006 we
cancelled the Notes and issued 34,500,000 new shares of common
stock to Honu. Because of the highly dilutive nature of the Note
Conversion, our primary purpose for the rights offering is to
allow the holders of BroadVision common stock at the time of the
Note Conversion an opportunity to further invest in BroadVision
in order to maintain their proportionate interest in BroadVision
common stock, at the same price per share as the conversion
price afforded to Dr. Chen in the Note Conversion.
177,890,071 shares of BroadVision common stock equals the
aggregate number of shares that would have to be acquired in the
aggregate by our Stockholders and eligible warrantholders in
order for our stockholders and eligible warrantholders to
maintain their proportionate interest in BroadVision after the
Note Conversion. On March 8, 2006, Dr. Chen has
waived any right to participate in the rights offering.
References herein to Dr. Chen include references to Honu.
Depending on the number of shares of BroadVision common stock
issued as a result of the rights offering, Dr. Chen will
hold between approximately 22% and 61% of our outstanding common
stock following the consummation of the offering. References
herein to Dr. Chen include references to Honu.
79
Director
and Officer Indemnification
Our restated certificate of incorporation contains provisions
limiting the liability of directors. In addition, we have
entered into agreements to indemnify our directors and executive
officers to the fullest extent permitted under Delaware law.
We have entered into indemnity agreements with certain officers
and directors which provide, among other things, that we will
indemnify such officer or director, under the circumstances and
to the extent provided for in such agreement, for expenses,
damages, judgments, fines and settlements he or she may be
required to pay in actions or proceedings which he or she is or
may be made a party be reason of his or her position as a
director, officer or other agent of the Company, and otherwise
to the full extent permitted under Delaware law and our Bylaws.
80
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Controlling
Stockholder
As of March 15, 2006, Dr. Pehong Chen, directly and
through entities controlled by him, held a majority of the
voting power of the Companys outstanding stock. As a
result, Dr. Chen controls the election of all members of
the Board of Directors and all other matters submitted to a vote
of the Companys stockholders.
Beneficial
Ownership of BroadVision Common Stock
The following table sets forth certain information regarding the
ownership of the Companys common stock as of
March 15, 2006 by: (a) each director; (b) each of
the executive officers named in the Summary Compensation Table;
(c) all current executive officers and directors of the
Company as a group; and (d) all those known by the Company
to be beneficial owners of more than five percent of its common
stock.
|
|
|
|
|
|
|
|
|
|
|
Beneficial Ownership(1)
|
|
|
|
Number of
|
|
|
Percent of
|
|
Beneficial Owner
|
|
Shares (#)
|
|
|
Total (%)
|
|
|
Pehong Chen(2)
|
|
|
42,079,429
|
|
|
|
59.4
|
%
|
William E. Meyer(3)
|
|
|
265,061
|
|
|
|
*
|
|
Alex Kormushoff
|
|
|
0
|
|
|
|
*
|
|
David L. Anderson(4)
|
|
|
101,437
|
|
|
|
*
|
|
James D. Dixon(5)
|
|
|
96,000
|
|
|
|
*
|
|
Robert Lee(6)
|
|
|
85,039
|
|
|
|
*
|
|
Roderick C. McGeary(7)
|
|
|
84,000
|
|
|
|
*
|
|
T. Michael Nevens(8)
|
|
|
108,000
|
|
|
|
*
|
|
Honu Holdings, LLC(2)
|
|
|
34,500,000
|
|
|
|
49.9
|
%
|
585 Broadway Redwood City, CA 94063
|
|
|
|
|
|
|
|
|
All Current Directors and
Executive Officers as a group (7 persons)(9)
|
|
|
42,818,966
|
|
|
|
60.4
|
%
|
|
|
|
(1) |
|
This table is based upon information supplied by officers,
directors and principal stockholders and Schedules 13D and 13G
filed with the SEC. Unless otherwise indicated in the footnotes
to this table and subject to community property laws where
applicable, the Company believes that each of the stockholders
named in this table has sole voting and investment power with
respect to the shares indicated as beneficially owned.
Applicable percentages are based on 69,180,991 shares
outstanding on March 15, 2006, adjusted as required by
rules promulgated by the SEC. The Companys directors and
executive officers can be reached at BroadVision, Inc., 585
Broadway, Redwood City, California 94063. |
|
|
|
(2) |
|
Includes 5,874,985 shares held in trust by Dr. Chen
and his wife for their benefit and 1,704,444 shares of
common stock issuable upon the exercise of stock options
exercisable within 60 days of March 15, 2006. Also
includes 34,500,000 shares held by Honu Holdings, LLC, of
which Dr. Chen is the sole member. Excludes
300,000 shares of common stock held in trust by independent
trustees for the benefit of Dr. Chens children. |
|
|
|
(3) |
|
Includes 250,000 shares of common stock issuable upon the
exercise of stock options exercisable within 60 days of
March 15, 2006. |
|
|
|
(4) |
|
Includes 46,604 shares of common stock issuable upon the
exercise of a stock option exercisable within 60 days of
March 15, 2006 and 30,833 shares held by The Anderson
Living Trust, of which Mr. Anderson is Trustee. |
|
|
|
(5) |
|
Includes 60,000 shares of common stock issuable upon the
exercise of stock options exercisable within 60 days of
March 15, 2006. |
|
|
|
(6) |
|
Includes 60,000 shares of common stock issuable upon the
exercise of stock options exercisable within 60 days of
March 15, 2006. Also includes 1,039 shares held in
trust by Mr. Lee and his wife for their benefit. |
81
|
|
|
(7) |
|
Includes 60,000 shares of common stock issuable upon the
exercise of stock options exercisable within 60 days of
March 15, 2006. |
|
|
|
(8) |
|
Includes 60,000 shares of common stock issuable upon the
exercise of stock options exercisable within 60 days of
March 15, 2006. |
|
|
|
(9) |
|
Includes the information contained in the notes above, as
applicable, for directors and executive officers of the Company
as of March 15, 2006. |
DESCRIPTION
OF CAPITAL STOCK
The following description of our capital stock does not purport
to be complete and is subject to, and qualified in its entirety
by, our certificate of incorporation and bylaws, which are
exhibits to the registration statement of which this prospectus
forms a part.
Common
Stock
We have 2,000,000,000 shares of common stock authorized. As
of
[ ],
2006, [69,522,130] shares of BroadVision common stock were
outstanding and held of record by 1,988 stockholders. In
addition, as of
[ ],
2006, [4,336,882] shares of BroadVision common stock were
subject to outstanding options.
Each share of BroadVision common stock entitles its holder to
one vote on all matters to be voted upon by our stockholders.
Subject to preferences that may apply to any of our outstanding
convertible preferred stock, holders of BroadVision common stock
will receive ratably any dividends our board of directors
declares out of funds legally available for that purpose. If we
liquidate, dissolve or wind up, the holders of common stock are
entitled to share ratably in all assets remaining after payment
of liabilities and any liquidation preference of any of our
outstanding convertible preferred stock. BroadVision common
stock has no preemptive rights, conversion rights, or other
subscription rights or redemption or sinking fund provisions.
The shares of BroadVision common stock to be issued upon
completion of this offering will be fully paid and
non-assessable.
Preferred
Stock
We have 10,000,000 shares of preferred stock authorized. As
of
[ ],
2006, none of the shares of our preferred stock were
outstanding. Our board of directors has the authority, without
further action by our stockholders, to issue up to
10,000,000 shares of preferred stock in one or more series.
Our board of directors may designate the rights, preferences,
privileges and restrictions of the preferred stock, including
dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preference, sinking fund terms, and
number of shares constituting any series or the designation of
any series.
Anti-Takeover
Provisions
Some provisions of Delaware law, our certificate of
incorporation and our bylaws may have the effect of delaying,
deferring or discouraging another party from acquiring control
of us.
Delaware
Law
We are subject to Section 203 of the Delaware General
Corporation Law, which regulates, subject to some exceptions,
acquisitions of publicly held Delaware corporations. In general,
Section 203 prohibits us from engaging in a business
combination with an interested stockholder for
a period of three years following the date the person becomes an
interested stockholder, unless:
|
|
|
|
|
our board of directors approved the business combination or the
transaction in which the person became an interested stockholder
prior to the date the person attained this status;
|
82
|
|
|
|
|
upon consummation of the transaction that resulted in the person
becoming an interested stockholder, the person owned at least
85% of our voting stock outstanding at the time the transaction
commenced, excluding shares owned by persons who are directors
and also officers and issued under employee stock plans under
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
|
|
|
|
on or subsequent to the date the person became an interested
stockholder, our board of directors approved the business
combination and the stockholders other than the interested
stockholder authorized the transaction at an annual or special
meeting of stockholders by the affirmative vote of at least
two-thirds of the outstanding stock not owned by the interested
stockholder.
|
Section 203 defines a business combination to
include:
|
|
|
|
|
any merger or consolidation involving us and the interested
stockholder;
|
|
|
|
any sale, transfer, pledge or other disposition involving the
interested stockholder of 10% or more of our assets;
|
|
|
|
in general, any transaction that results in the issuance or
transfer by us of any of our stock to the interested stockholder;
|
|
|
|
any transaction involving us that has the effect of increasing
the proportionate share of our stock owned by the interested
stockholders; and
|
|
|
|
the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges, or other financial
benefits provided by or through us.
|
In general, Section 203 defines an interested
stockholder as any person who, together with the
persons affiliates and associates, owns, or within three
years prior to the time of determination of interested
stockholder status did own, 15% or more of a corporations
voting stock.
Certificate
of Incorporation and Bylaw Provisions
Our certificate of incorporation and bylaws provide that:
|
|
|
|
|
no action can be taken by stockholders except at an annual or
special meeting of the stockholders called in accordance with
our bylaws, and stockholders may not act by written consent;
|
|
|
|
|
|
the approval of holders of a majority of the shares entitled to
vote at an election of directors will be required to adopt,
amend or repeal our bylaws;
|
|
|
|
|
|
our board of directors is expressly authorized to make, alter or
repeal our bylaws;
|
|
|
|
in general, stockholders may not call special meetings of the
stockholders or fill vacancies on the board of directors;
|
|
|
|
our board of directors is authorized to issue preferred stock
without stockholder approval;
|
|
|
|
directors may only be removed for cause by the holders of a
majority of the shares entitled to vote at an election of
directors or without cause by the holders of at least two-thirds
shares entitled to vote at an election of directors; and
|
|
|
|
we will indemnify officers and directors against losses that may
incur investigations and legal proceedings resulting from their
services to us, which may include services in connection with
takeover defense measures.
|
83
Transfer
Agent and Registrar
Computershare Trust Company has been appointed as the transfer
agent and registrar for BroadVision common stock.
Pink
Sheets®
On March 8, 2006, BroadVision common stock was delisted
from the NASDAQ National Market and began trading only on the
Pink
Sheets®.
On
,
2006, the closing price of BroadVision common stock was
$0.[ ] per share.
LEGAL
MATTERS
Cooley Godward
llp,
San Francisco, California will pass upon the validity of
the common stock offered by this prospectus for us.
EXPERTS
The financial statements and financial statement schedule of
BroadVision, Inc. as of December 31, 2005 and for the year ended
December 31, 2005 incorporated by reference in this Registration
Statement by reference to the Annual Report on Form 10K for the
year ended December 31, 2005 have been so included in reliance
on the audit report of Stonefield Josephson, Inc., independent
registered public accounting firm, given on the authority of
said firm as experts in auditing and accounting. Stonefield
Josephson, Inc. is a member of the AICPA.
The consolidated financial statements and schedule incorporated
by reference in this prospectus have been audited by BDO
Seidman, LLP, an independent registered public accounting firm,
to the extent and for the periods as set forth in their report
incorporated herein by reference, and are incorporated herein in
reliance upon such report given upon the authority of said firm
as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and
current reports, proxy statements and other information with the
SEC. We have filed with the SEC a registration statement on
Form S-1
under the Securities Act with respect to the securities we are
offering under this prospectus. This prospectus does not contain
all of the information set forth in the registration statement
and the exhibits to the registration statement. For further
information with respect to us and the securities we are
offering under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the
registration statement. You may read and copy the registration
statement, as well as our reports, proxy statements and other
information, at the SECs public reference room at 100 F
Street, N.E., Washington, D.C. 20549. You can request
copies of these documents by writing to the SEC and paying a fee
for the copying cost. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the public reference
rooms. Our SEC filings are also available at the SECs web
site at http://www.sec.gov. In addition, you can
read and copy our SEC filings at the office of the National
Association of Securities Dealers, Inc. at
1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to incorporate by reference the
information contained in documents that we file with them, which
means that we can disclose important information to you by
referring to those documents. The information incorporated by
reference is considered to be part of this prospectus.
Information in this prospectus supersedes information
incorporated by reference that we filed with the SEC prior to
the date of this prospectus, while information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below, any filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date we filed the registration
statement of which
84
this prospectus is a part and before the effective date of the
registration statement and any future filings we will make with
the SEC under those sections.
Certain information contained in our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2006 (the
10-Q)
and our Annual Report on
Form 10-K
for the year ended December 31, 2005 (the
10-K)
is incorporated by reference in this prospectus:
1. Our consolidated financial statements contained in the
10-K; and
2. Our condensed consolidated financial statements
contained in the
10-Q.
We will provide without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon
written or oral request of such person, a copy of any or all of
the documents incorporated by reference, in this prospectus (not
including exhibits to such documents, unless such exhibits are
specifically incorporated by reference in this prospectus or
into such documents). You should direct any requests for
documents to Corporate Secretary, BroadVision, Inc., 585
Broadway, Redwood City, California 94063, Telephone
(650) 261-5100.
Alternatively, documents incorporated by reference in this
prospectus may be accessed through our web site at
http://www.broadvision.com.
85
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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|
Item 13.
|
Other
Expenses of Issuance and Distribution
|
The following table sets forth all expenses, other than the
underwriting discounts and commissions, payable by us in
connection with the sale of the common stock being registered.
All the amounts shown are estimates except the registration fee.
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|
|
|
|
SEC Registration
|
|
$
|
8,566
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|
Accounting fees and expenses
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|
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75,000
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|
Printing and engraving expenses
|
|
$
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50,000
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|
Legal fees and expenses
|
|
$
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125,000
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|
Transfer agent and registrar fees
|
|
$
|
12,000
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|
Miscellaneous fees and expenses
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|
$
|
100,000
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|
|
|
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|
|
Total
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$
|
370,566
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|
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|
Item 14.
|
Indemnification
of Directors and Officers
|
As permitted by Section 145 of the Delaware General
Corporation Law, our amended and restated certificate of
incorporation and bylaws provide that (i) we are required
to indemnify our directors and executive officers to the fullest
extent not prohibited by the Delaware General Corporation Law,
(ii) we may, in our discretion, indemnify our other
officers, employees and agents as set forth in the Delaware
General Corporation Law, (iii) we are required to advance
all expenses incurred by our directors and executive officers in
connection with certain legal proceedings, (iv) the rights
conferred in the bylaws are not exclusive and (v) we are
authorized to enter into indemnification agreements with our
directors, officers, employees and agents.
We have entered into agreements with our directors and executive
officers that require us to indemnify such persons against
expenses, judgments, fines, settlements, and other amounts that
any such person becomes legally obligated to pay (including with
respect to a derivative action) in connection with any
proceeding, whether actual or threatened, to which such person
may be made a party by reason of the fact that such person is or
was a director or officer of the Company or any of our
affiliates, provided such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed
to, the best interests of the Company. The indemnification
agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder. At present,
no litigation or proceeding is pending that involves a director
or officer of the Company regarding which indemnification is
sought, nor are we aware of any threatened litigation that may
result in claims for indemnification.
We maintain a directors and officers insurance
policy. The policy insures directors and officers against
unindemnified losses arising from certain wrongful acts in their
capacities as directors and officers and reimburses the Company
for those losses for which we have lawfully indemnified the
directors and officers. The policy contains various exclusions,
none of which apply to this offering.
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|
Item 15.
|
Recent
Sales of Unregistered Securities.
|
Since January 1, 2001, the Company has issued and sold the
following unregistered securities:
1. On July 7, 2004, in connection with a lease
restructuring, the Company issued a warrant to Pacific Shores
Investors, LLC to purchase 700,000 shares of common stock
at an exercise price of $5.00 per share. The warrant was
issued in reliance on Section 4(2) of the Securities Act.
2. On November 9, 2004, the Company issued and sold an
aggregate $16 million of securities, including convertible
notes, warrants to purchase common stock and additional
investment rights to purchase additional convertible notes. The
sales were made in reliance on Section 4(2) of the
Securities Act.
II-1
3. On December 20, 2005, the Company entered into an
agreement with Dr. Pehong Chen, the Companys
Chairman, Chief Executive Officer, President, interim Chief
Financial Officer and largest stockholder, to convert the
approximately $15.5 million of convertible notes held by
Dr. Chen into approximately 34,500,000 shares of
BroadVision common stock. On March 8, 2006, the Company
cancelled the convertible notes and issued 34,500,000 new shares
of common stock to Dr. Chen. The issuance of common stock was
made in reliance on Section 4(2) of the Securities Act.
The issuances of the securities in the transactions above were
deemed to be exempt from registration under the Securities Act
in reliance on Section 4(2) of the Securities Act
promulgated thereunder as transactions by an issuer not
involving a public offering, where the purchasers represented
their intention to acquire the securities for investment only
and not with a view to distribution and received or had access
to adequate information about the Registrant, or Rule 701
promulgated under the Securities Act as transactions pursuant to
a compensatory benefit plan or a written contract relating to
compensation.
Appropriate legends were affixed to the stock certificates and
securities issued in the above transactions. No underwriters
were employed in any of the above transactions.
(a) Exhibits
The exhibits are as set forth in the Exhibit Index.
II-2
The undersigned registrant hereby undertakes:
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(1)
|
To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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|
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|
(i)
|
To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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|
|
(ii)
|
To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
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|
|
|
(iii)
|
To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
|
provided, however, that
(A) the undertakings set forth in paragraphs (1)(i),
(1)(ii) and (1)(iii) above do not apply if the registration
statement is on
Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports field with
or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement; and
(B) the undertakings set forth in paragraphs (1)(i),
(1)(ii) and (1)(iii) above do not apply if the registration
statement is on
Form S-3
or
Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is a part of the
registration statement.
(C) provided further, however, that paragraphs
(1)(i), (1)(ii) and (1)(iii) above do not apply if the
registration statement is for an offering of asset-backed
securities on From
S-1 or
Form S-3,
and the information required to be included in a post-effective
amendment is proved pursuant to Item 1100(c) of
Regulation AB.
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|
|
|
(2)
|
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
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|
|
|
|
(3)
|
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
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|
|
|
(4)
|
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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|
|
(i)
|
Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
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|
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|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant
to Rule
|
II-3
415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
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|
|
(5)
|
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
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|
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424;
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|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
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|
|
|
(iii)
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
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|
|
|
|
(iv)
|
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
|
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers,
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
The undersigned registrant hereby undertakes that:
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|
(1)
|
For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
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|
|
|
(2)
|
For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
|
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by
a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Company
will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Redwood
City, State of California on the
15th day
of August 2006.
BROADVISION, INC.
Pehong Chen
Chairman, Chief Executive Officer, President and
interim Chief Financial Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature
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Title
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|
Date
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|
/s/ Pehong
Chen
Pehong
Chen
|
|
Chairman of the Board, Chief
Executive Officer and President
(Principal Executive Officer)
|
|
August 15, 2006
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|
/s/ Pehong
Chen
Pehong
Chen
|
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
August 15, 2006
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|
*
James D.
Dixon
|
|
Director
|
|
August 15, 2006
|
|
|
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|
*
Robert
Lee
|
|
Director
|
|
August 15, 2006
|
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|
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|
|
François
Stieger
|
|
Director
|
|
,
2006
|
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*By:
|
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/s/ Pehong
Chen
Attorney-in-Fact
|
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II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
3
|
.1(1)
|
|
Amended and Restated Certificate
of Incorporation.
|
|
|
|
|
|
|
|
|
|
|
|
3
|
.2(6)
|
|
Certificate of Amendment of
Certificate of Incorporation.
|
|
|
|
|
|
|
|
|
|
|
|
3
|
.3(21)
|
|
Amended and Restated Bylaws.
|
|
4
|
.1(1)
|
|
References are hereby made to
Exhibits 3.1 to 3.2.
|
|
4
|
.2*
|
|
Beneficial Owner Election Form
|
|
|
|
|
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|
4
|
.3
|
|
Subscription Rights Certificate
|
|
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|
|
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4
|
.4*
|
|
Notice of Guaranteed Delivery
|
|
|
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|
4
|
.5(19)
|
|
Registration Rights Agreement
dated November 10, 2004 among the Company and certain investors
listed on Exhibit A thereto.
|
|
4
|
.6(24)
|
|
Registration Rights Agreement
dated March 8, 2006, between the Company and Honu Holdings LLC.
|
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5
|
.1(23)
|
|
Opinion of Cooley Godward LLP
|
|
|
|
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|
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|
|
10
|
.1(8)(a)
|
|
Equity Incentive Plan as amended
through May 1, 2002 (the Equity Incentive Plan).
|
|
|
|
|
|
|
|
|
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|
|
10
|
.2(1)(a)
|
|
Form of Incentive Stock Option
under the Equity Incentive Plan.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.3(1)(a)
|
|
Form of Nonstatutory Stock Option
under the Equity Incentive Plan.
|
|
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|
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|
|
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|
|
10
|
.4(1)(a)
|
|
Form of Nonstatutory Stock Option
(Performance-Based).
|
|
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|
|
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|
|
10
|
.5(8)(a)
|
|
1996 Employee Stock Purchase Plan
as amended May 1, 2002 (the Employee Stock Purchase
Plan).
|
|
|
|
|
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|
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|
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|
|
10
|
.6(1)(a)
|
|
Employee Stock Purchase Plan
Offering (Initial Offering).
|
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|
|
|
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|
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|
|
10
|
.7(1)(a)
|
|
Employee Stock Purchase Plan
Offering (Subsequent Offering).
|
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|
|
10
|
.8(1)(b)
|
|
Terms and Conditions dated January
1, 1995 between IONA Technologies LTD and the Company.
|
|
10
|
.9(2)
|
|
Lease dated February 5, 1997
between the Company and Martin/Campus Associates, L.P.
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|
|
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|
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10
|
.10(3)(a)
|
|
2000 Non-Officer Equity Incentive
Plan.
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|
|
10
|
.11(4)(b)
|
|
Independent Software Vendor
Agreement dated June 30, 1998 between the Company and IONA
Technologies, PLC, as amended.
|
|
10
|
.12(5)
|
|
Amended and Restated Loan and
Security Agreement dated March 31, 2002 between the Company and
Silicon Valley Bank.
|
|
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|
10
|
.13(7)
|
|
Form of Indemnity Agreement
between the Company and each of its directors and executive
officers.
|
|
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|
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|
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|
10
|
.14(9)
|
|
Offer letter dated March 4, 2003
by and between the Company and William Meyer.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.15(10)
|
|
First Amendment to the Amended and
Restated Loan and Security Agreement dated February 28, 2003
between the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
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|
|
10
|
.16(10)
|
|
Second Amendment to the Amended
and Restated Loan and Security Agreement dated June 30, 2003
between the Company and Silicon Valley Bank.
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|
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|
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|
|
|
|
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|
|
10
|
.17(10)
|
|
BroadVision, Inc. Change in
Control Severance Benefit Plan, established effective May 22,
2003.
|
|
|
|
|
|
|
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|
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|
|
10
|
.18(10)
|
|
BroadVision, Inc. Executive
Severance Benefit Plan, established effective May 22, 2003.
|
|
|
|
|
|
|
|
|
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|
|
10
|
.19(10)
|
|
Third Amendment to the Amended and
Restated Loan and Security Agreement dated June 30, 2003 between
the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.20(11)
|
|
Offer Letter dated September 23,
2002 between the Company and Alex Kormushoff.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.21(11)
|
|
Fourth Amendment to the Amended
and Restated Loan and Security Agreement dated January 21, 2004
between the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.22(11)
|
|
Fifth Modification to Amended and
Restated Loan and Security Agreement dated February 27, 2004
between the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.23(13)
|
|
Assignment and Assumption of
Master Lease, Partial Termination of Master Lease and Assignment
and Assumption of Subleases, dated July 7, 2004, between Pacific
Shores Investors, LLC and the Company.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.24(13)
|
|
Warrant to Purchase up to 700,000
share of common stock, dated July 7, 2004, issued to Pacific
Shores Investors, LLC.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.25(13)
|
|
Triple Net Space Lease, dated as
of July 7, 2004, between Pacific Shores Investors, LLC and the
Company.
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
10
|
.26(14)
|
|
Sixth Amendment to the Amended and
Restated Loan and Security Agreement dated September 29, 2004
between the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.27(15)
|
|
Securities Purchase Agreement
dated as of November 10, 2004.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.28(16)
|
|
Seventh Amendment to the Amended
and Restated Loan and Security Agreement dated November 9, 2004
between the Company and Silicon Valley Bank.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.29(17)
|
|
Agreement to Restructure Lease and
To Assign Subleases dated as of October 1, 2004 between
VEF III Funding, LLC and the Company.
|
|
10
|
.30(18)
|
|
Amendment No. 5 to IONA
Independent Software Vendor Agreement dated December 20, 2004,
between IONA Technologies, Inc. and the Company.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.31(19)
|
|
Agreement to Assign Lease and
Sublease dated as of January 26, 2005 between the Company and
100 Spear Street Owners Corporation.
|
|
|
|
|
|
|
|
|
|
|
|
10
|
.32(19)
|
|
Letter dated January 26, 2005
amending Agreement to Assign Lease and Sublease dated as of
January 26, 2005 between the Company and 100 Spear Street
Owners Corporation.
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10
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.33(20)
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Settlement Agreement dated for
reference purposes February 4, 2005, by and between Metropolitan
Life Insurance Company and the Company.
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10
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.34(21)
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Debt Conversion Agreement dated as
of December 20, 2005, between the Company and
Honu Holdings, LLC
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21
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.1(22)
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Subsidiaries of the Company.
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23
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.1
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Consent of Cooley Godward LLP
(included in Exhibit 5.1)
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23
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.2
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Consent of Stonefield Josephson,
Inc.
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23
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.3
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Consent of BDO Seidman, LLP.
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24
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.1(23)
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Power of Attorney, pursuant to
which amendments to this Registration Statement may be filed.
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(1) |
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Incorporated by reference to the Companys Registration
Statement on Form
S-1 filed on
April 19, 1996 as amended by Amendment No. 1 filed on
May 9, 1996, Amendment No. 2 filed on May 29,
1996 and Amendment No. 3 filed on June 17, 1996. |
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(2) |
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Incorporated by reference to the Companys
Form 10-K
for the fiscal year ended December 31, 1996 filed on
March 31, 1997 (SEC File
No. 000-28252). |
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(3) |
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Incorporated by reference to the Companys Registration
Statement on Form
S-8 filed on
October 15, 2003. |
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(4) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended June 30, 2001 filed on
August 14, 2001. |
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(5) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended March 31, 2002 filed on May 16,
2002. |
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(6) |
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Incorporated by reference to the Companys Proxy Statement
filed on May 14, 2002. |
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(7) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended September 30, 2002 filed on
November 14, 2002. |
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(8) |
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Incorporated by reference to the Companys Registration
Statement on Form
S-8 filed on
August 1, 2002. |
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(9) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended March 31, 2003 filed on May 14,
2003. |
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(10) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended June 30, 2003 filed on
August 14, 2003. |
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(11) |
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Incorporated by reference to the Companys
Form 10-K
for the fiscal year ended December 31, 2003 filed on
March 15, 2004. |
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(12) |
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Incorporated by reference to the Companys
Form 10-Q
for the quarter ended March 31, 2004 filed on May 10,
2004. |
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(13) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on August 9, 2004. |
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(14) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on October 25, 2004. |
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(15) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on November 10, 2004. |
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(16) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on November 17, 2004. |
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(17) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on November 19, 2004. |
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(18) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on December 23, 2004. |
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(19) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on February 1, 2005. |
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(20) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on February 16, 2005. |
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(21) |
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Incorporated by reference to the Companys Current Report
on
Form 8-K
filed on December 22, 2005. |
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(22) |
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Filed previously with the Companys
Form 10-K
for the fiscal year ended December 31, 2004, filed on
March 15, 2005. |
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(23) |
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Incorporated by reference to the Companys Registration
Statement on Form
S-1 filed on
February 3, 2006. |
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(24) |
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Incorporated by reference to the Company Annual Report on
Form 10-K
for the fiscal year ended December 31, 2005, filed on
June 9, 2006. |
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(a) |
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Represents a management contract or compensatory plan or
arrangement. |
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(b) |
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Confidential treatment requested. |
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* |
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To be filed by amendment. |