<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 26, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PEGASUS SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7389 75-2605174
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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3811 TURTLE CREEK BOULEVARD, SUITE 1100
DALLAS, TEXAS 75219
(214) 528-5656
(Address, including zip code, telephone number,
including area code, of registrant's principal executive office)
JOHN F. DAVIS, III
PEGASUS SYSTEMS, INC.
3811 TURTLE CREEK BOULEVARD, SUITE 1100
DALLAS, TEXAS 75219
(214) 528-5656
(Name, address, including zip code, telephone number,
including area code, of agent for service)
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COPIES TO:
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GUY KERR KENNETH L. GUERNSEY
WHIT ROBERTS JAMIE E. CHUNG
Locke Purnell Rain Harrell MITCHELL R. TRUELOCK
(A Professional Corporation) Cooley Godward LLP
2200 Ross Avenue, Suite 2200 One Maritime Plaza, 20th Floor
Dallas, Texas 75201 San Francisco, California 94111
(214) 740-8000 (415) 693-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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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. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
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Common stock, $.01 par value per
share........................... 2,415,000(1) $15.50 $37,432,500 $11,043
==================================================================================================================
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(1) Includes 315,000 shares issuable upon exercise of the underwriters'
overallotment option.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457.
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.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 26, 1998
PROSPECTUS
2,100,000 SHARES
[PEGASUS SYSTEMS, INC. LOGO]
PEGASUS SYSTEMS, INC.
COMMON STOCK
Of the 2,100,000 shares of Common Stock offered hereby, 276,088 shares are
being sold by the Company and 1,823,912 shares are being sold by the Selling
Stockholders. The Company will not receive any of the proceeds from the sale of
shares by the Selling Stockholders. See "Principal and Selling Stockholders."
The Company's Common Stock is quoted on the Nasdaq National Market under
the symbol PEGS. On January 23, 1998 the last reported sale price of the Common
Stock was $15.50 per share. See "Price Range of Common Stock."
------------------
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" COMMENCING ON PAGE 7.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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PRICE TO UNDERWRITING PROCEEDS TO PROCEEDS TO SELLING
PUBLIC DISCOUNT(1) COMPANY(2) STOCKHOLDERS
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Per Share.............. $ $ $ $
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Total(3)............... $ $ $ $
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(1) See "Underwriting" for indemnification arrangements with the several
Underwriters.
(2) Before deducting expenses payable by the Company estimated at $400,000.
(3) The Company and certain of the Selling Stockholders have granted to the
Underwriters a 30-day option to purchase up to 315,000 additional shares of
Common Stock solely to cover over-allotments, if any. If all such shares are
purchased, the total Price to Public, Underwriting Discount, Proceeds to
Company and Proceeds to Selling Stockholders will be $ ,
$ , $ and $ , respectively. See "Underwriting."
------------------
The shares of Common Stock are offered by the several Underwriters subject
to prior sale, receipt and acceptance by them and subject to the right of the
Underwriters to reject any order in whole or in part and certain other
conditions. It is expected that certificates for such shares will be made
available for delivery on or about , 1998, at the office of the agent
of Hambrecht & Quist LLC in New York, New York.
HAMBRECHT & QUIST
NATIONSBANC MONTGOMERY SECURITIES LLC
VOLPE BROWN WHELAN & COMPANY
, 1998
<PAGE> 3
[GRAPHIC]
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK,
INCLUDING BY ENTERING STABILIZING BIDS, EFFECTING SYNDICATE COVERING
TRANSACTIONS OR IMPOSING PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES,
SEE "UNDERWRITING."
IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS AND SELLING GROUP
MEMBERS (IF ANY) OR THEIR RESPECTIVE AFFILIATES MAY ENGAGE IN PASSIVE MARKET
MAKING TRANSACTIONS IN THE COMMON STOCK ON THE NASDAQ NATIONAL MARKET IN
ACCORDANCE WITH RULE 103 OF REGULATION M. SEE "UNDERWRITING."
2
<PAGE> 4
2
DESCRIPTION OF INSIDE FRONT COVER WITH FOLD-OUT
Caption reading:
Leading worldwide provider of hotel reservation and commission processing
services.
Pegasus Systems, Inc. logo with caption reading:
Through its services and systems - THISCO, TravelWeb, Netbooker, UltraRes,
UltraDirect and HCC - Pegasus Systems provides the technology that
facilitates the electronic booking of hotel rooms worldwide. Regardless of
whether the reservation comes from a travel agent, a meeting planner or
conventions and visitors bureau, a corporate travel department, or directly
from an individual traveler via the Internet, Pegasus Systems' services can
facilitate the transaction.
Pictures and logos depicting the following transaction flows:
1. Consumer to Travel Agent to Global Distribution System ("GDS") to
UltraSwitch-THISCO to Hotel.
2. Consumer to GDS Internet Travel Sites to GDS to UltraSwitch-THISCO to
Hotel.
3. Consumer to TravelWeb to UltraSwitch-THISCO to Hotel.
4. Consumer to Partner Web Sites to Pegasus Systems NetBooker to
UltraSwitch-THISCO to Hotel.
5. Consumer to Corporate Travel to Pegasus Systems-UltraDirect to
UltraSwitch-THISCO to Hotel.
6. Consumer to Conventions & Meetings Planners to Pegasus
Systems-UltraRes to UltraSwitch-THISCO to Hotel.
7. Hotel to HCC-Hotel Clearing Corporation to Travel Agent.
8. HCC-Hotel Clearing Corporation, UltraSwitch-THISCO and Hotel to
Pegasus IQ.
THISCO logo with caption reading:
THISCO's service is a gateway to more than 25,000 hotels around the world.
When a reservation is made via any of the distribution vehicles shown
above, THISCO translates the reservation request into the hotel's unique
computer format and queries the hotel's database. A confirmed reservation
is then transmitted back through THISCO's service and sent to the traveler
via the distribution channel. This entire process occurs in a matter of
seconds.
TravelWeb logo with caption reading:
TravelWeb is a leading Internet travel booking service that has quickly
established its niche as one of the largest interactive sites in which
consumers can freely research and reserve hotel rooms around the world.
Connecting to approximately 15,000 hotels via the THISCO service, TravelWeb
enables travelers to directly access hotel central reservation systems to
check room rates, features and availability, and to make reservations.
Other features on the site, including airline flight reservations, hotel,
photos, maps, weather and special discount programs, make TravelWeb a
"one-stop" travel site for both the leisure and business traveler.
HCC logo with caption reading:
HCC completes the room reservation transaction for more than 66,000
participating travel agencies by collecting and consolidating hotel booking
commissions due to each agency from approximately 14,000 participating
hotel properties worldwide. The value-added consolidation and reporting
services that HCC provides to both its hotel and travel agency
participants help both parties operate more efficiently and effectively.
<PAGE> 5
[GRAPHIC]
<PAGE> 6
DESCRIPTION OF PAGE 2
Pegasus Systems Inc. logo with caption reading:
Created by the hotel industry, for the hotel industry.
THISCO logo with caption reading:
Provides electronic interface between hotel central reservations systems
and Global Distribution Systems
o Leading provider of electronic hotel room reservation processing
services
o Connects 25,000 hotel properties around the world to GDSs and other
electronic distribution channels
TravelWeb logo with caption reading:
Internet hotel information and reservation service
o A leading Internet travel booking service
o Offers consumers direct reservation access to approximately 15,000
hotels in 140 countries.
HCC logo with caption reading:
Provides commission processing services for hotels and travel agencies
o 66,000 travel agencies worldwide participate
o Processes approximately $17 million in commissions per month
Caption reading: Pegasus Systems' Stockholders include many of the world's
leading hotel companies
Logos of the following stockholders and customers:
Inter-Continental Hotels
Best Western International
Hilton Hotels Corporation
Forte Hotels, PLC
Marriott International Corporation, Inc.
Choice Hotels International
La Quinta Inns
ITT Sheraton
Hyatt Hotels
Reed Travel Group
REZ Solutions, Inc.
Promus Hotels Corporation
Westin Hotel & Resorts
<PAGE> 7
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the Consolidated Financial Statements and Notes thereto
appearing elsewhere in this Prospectus. The Common Stock offered hereby involves
a high degree of risk. See "Risk Factors." The terms "Company" and "Pegasus"
when used in this Prospectus refer to Pegasus Systems, Inc., a Delaware
corporation, and, unless the context requires otherwise, its predecessors and
consolidated subsidiaries.
THE COMPANY
Pegasus is a leading provider of transaction processing services to the
hotel industry worldwide. The Company's THISCO(TM) and TravelWeb(R) hotel room
reservation services improve the efficiency and effectiveness of the reservation
process by enabling travel agents and individual travelers to electronically
access hotel room inventory information and conduct reservation transactions.
The Company's HCC service, the global leader in hotel commission payment
processing, improves the efficiency and effectiveness of the commission payment
process for participating hotels and travel agencies by consolidating payments
and providing comprehensive transaction reports. In addition, the Company is
developing Pegasus IQ, an information service to provide hotels and other travel
industry participants with transaction specific information on industry trends
and guest behavior.
The Company's electronic interface business for hotel room reservations was
established in 1989 by 16 leading hotel and travel-related companies to address
the need for a neutral, reliable third-party source of hotel reservation
information and transaction processing services. The Company's commission
processing business was founded by substantially the same stockholder group in
1991. Today, the Company's stockholders include 10 of the 15 leading hotel
chains in the world based on 1996 total revenues as reported by Business Travel
News. The Company's strategic position as a gateway in the hotel room
distribution chain, transaction processing capabilities and reputation for
reliability and neutrality enable it to offer a range of services delivering
industry-wide benefits that would be difficult for any industry participant to
achieve individually.
The Company's THISCO service provides an electronic interface from hotel
central reservation systems to travel agencies through Global Distribution
Systems ("GDSs"), which are electronic travel information and reservation
systems such as SABRE. Over 25,000 hotel properties worldwide, including
those of 13 of the 15 leading hotel chains based on 1996 total revenues,
utilize the THISCO service.
The Company's TravelWeb service provides individual travelers direct access
to more than 58,000 dynamically served pages of online hotel information
and the ability to make reservations electronically at approximately 15,000
properties in 140 countries. In addition, through its NetBooker service,
the Company offers TravelWeb's comprehensive hotel database and Internet
hotel reservation capabilities to third-party Web sites, including Preview
Travel, and is implementing these capabilities with Microsoft Expedia.
During the three months ended December 31, 1997, approximately 82,000 net
reservations for hotel rooms were made using the Company's TravelWeb and
NetBooker services.
The Company's HCC service consolidates commissions paid by participating
hotels to a participating travel agency into a single monthly payment and
provides participants with comprehensive transaction reports. Over 14,000
hotel properties and 66,000 travel agencies worldwide utilize the HCC
service to increase the efficiency and reduce costs associated with
preparing, paying and reconciling hotel room reservation commissions.
Pegasus has structured its service offerings so that it has the opportunity
to process and gain fee revenues from most electronic hotel room reservation and
commission transactions. The Company derives THISCO and TravelWeb revenues by
charging its hotel participants a fee based on the number of reservations made
less the number canceled ("net reservations"). The Company derives HCC revenues
by charging its travel agency customers a percentage of the dollar amount of
commissions paid to the travel agencies and by generally charging hotels a
transaction fee. The Company's revenues have grown at a compound annual rate of
54.4% to $15.9 million in 1996 from $2.8 million in 1992, excluding 1992
revenues from the HCC service which was acquired in 1995. The Company's revenues
for the nine months ended September 30, 1997 were $15.2 million. The Company has
entered into contracts with terms generally ranging from two to five years with
most of its THISCO, HCC and TravelWeb hotel customers, many of which are Company
stockholders.
3
<PAGE> 8
The operations of the global hotel industry include a wide variety of
participants and a series of complex information and transaction flows.
According to the International Hotel Association, the global hotel industry
generated $247 billion in revenues in 1994. The Company believes that costs
associated with reserving and distributing hotel rooms, including commissions
and fees paid to intermediaries such as travel agencies and GDSs, hotel
reservation-related staffing costs and reservation system information technology
expenses, represent a significant proportion of total operating costs. The
Company's services simplify the complexity of room reservation information and
transaction flows, thereby reducing the distribution costs of rooms for the
hotel industry.
The Company believes that it will benefit from four significant trends in
the global hotel industry. First, as hotels and travel agencies increasingly
shift from manual to electronic means of making room reservations, the Company
can provide them with reservation and commission processing services. Second, as
individual travelers increasingly make their hotel reservations over the
Internet, the Company is positioned to process these reservations through its
own TravelWeb site or through third-party Web sites that use the Company's
NetBooker hotel room reservation service, including Web sites operated by
Preview Travel, Inc. and Microsoft Corporation. Third, as independent hotels and
smaller hotel chains increasingly affiliate with large chains, many of which are
the Company's customers, the number of hotel properties for which Pegasus
processes electronic reservations and commissions increases. Fourth, as travel
agencies recognize the importance of hotel reservation commission revenues, the
Company believes that travel agencies will generate an increasing volume of
electronic hotel room reservations and will increasingly rely on the Company to
process hotel commissions.
The Company's objective is to capitalize on its central position in the
hotel industry information and transaction flow in order to become the leading
provider of services and technology that enable the efficient and effective
distribution of hotel rooms. To achieve this objective, the Company intends to
employ a strategy that includes the following key elements: (i) expanding its
customer base; (ii) expanding its service offerings to include virtually all of
the electronic hotel room distribution channels; (iii) continuing to develop and
implement Pegasus IQ, an information service to provide hotels and other travel
industry participants with hotel transaction information and (iv) building
strategic alliances and pursuing acquisition opportunities.
The Company was incorporated in Delaware in 1995, and holds directly or
indirectly all of the outstanding capital stock of (i) The Hotel Industry Switch
Company ("THISCO"), a Delaware corporation formed in 1988 to operate the
electronic interface business between hotel reservation systems and major GDSs;
(ii) The Hotel Clearing Corporation ("HCC"), a Delaware corporation formed in
1991 to operate the commission payment processing business; (iii) TravelWeb,
Inc., a Delaware corporation formed in 1995 to operate the online hotel
reservation business and (iv) Pegasus IQ, Inc., a Delaware corporation formed in
1997 to operate the information service business. The Company's principal
executive office is located at 3811 Turtle Creek Boulevard, Suite 1100, Dallas,
Texas 75219. The Company's telephone number is (214) 528-5656.
RECENT DEVELOPMENTS
In January 1998, the Company entered into an agreement with Hilton Hotels
Corporation ("Hilton") under which Hilton, currently a customer of the Company's
THISCO and TravelWeb services, also will become a customer of the Company's HCC
service, commencing in the second quarter of 1998.
The Company recently announced its financial results for the period ended
December 31, 1997. For the three month period ended December 31, 1997, the
Company's net revenues increased 38.7% over the same period in the prior year to
$5.7 million. Net income in the three months ended December 31, 1997 was
$659,000. Diluted net income per share in this period was $0.06 based on 10.9
million weighted average shares outstanding. For the twelve months ended
December 31, 1997, the Company's net revenues increased 31.7% over the prior
twelve month period to $20.9 million. Net income in the twelve months ended
December 31, 1997 was $589,000. Diluted net income per share in this period was
$0.07 based on 8.7 million weighted average shares outstanding.
4
<PAGE> 9
THE OFFERING
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Common Stock offered by the Company........................ 276,088 shares
Common Stock offered by the Selling Stockholders........... 1,823,912 shares
Common Stock to be outstanding after the offering.......... 10,457,133 shares(1)
Use of proceeds............................................ For working capital and other general
corporate purposes. See "Use of Proceeds"
and "Certain Transactions."
Nasdaq National Market symbol.............................. PEGS
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SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
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NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
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1992 1993 1994 1995 1996 1996 1997
------- ------- ------- ------- ------- ------- -------
(UNAUDITED)
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CONSOLIDATED STATEMENT OF
OPERATIONS DATA(2):
Net revenues.......................... $ 2,792 $ 3,938 $ 4,666 $ 9,296 $15,869 $11,784 $15,236
Operating income (loss)............... (613) 198 168 (2,809) (2,585) (1,803) 58
Net loss.............................. $(1,179) $ (398) $ (423) $(3,571) $(3,485) $(2,471) $ (69)
Basic and diluted net loss per
share(3)........................... $ (0.56) $ (1.30) $ (0.66) $ (0.47) $ (0.01)
Shares used in basic and diluted net
loss per share calculation(3)...... 762 2,752 5,247 5,235 6,196
</TABLE>
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<CAPTION>
SEPTEMBER 30, 1997
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ACTUAL AS ADJUSTED(4)
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CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents............. $ 39,223 $ 42,888
Working capital....................... 38,071 41,736
Total assets.......................... 49,890 53,555
Long-term obligations, net of current
portion............................ 937 937
Accumulated deficit................... (14,640) (14,640)
Total stockholders' equity............ 42,739 46,404
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(1) Based on the number of shares outstanding as of December 31, 1997. Excludes
as of December 31, 1997 (i) 866,667 shares of Common Stock reserved for
issuance under the Company's 1996 Stock Option Plan (the "1996 Plan"), of
which options to purchase 863,278 shares of Common Stock were issued and
unexercised at a weighted average exercise price of $3.33 per share, (ii)
333,333 shares of Common Stock reserved for issuance under the Company's
1997 Stock Option Plan (the "1997 Plan"), of which options to purchase
219,000 shares of Common Stock were outstanding at a weighted average
exercise price of $15.30 per share and (iii) 500,000 shares of Common Stock
reserved for issuance under the Company's 1997 Employee Stock Purchase Plan.
In May 1997, the Company issued to Holiday Inn Worldwide ("Holiday Inn")
warrants to purchase up to 345,723 shares of Common Stock. The warrants are
exercisable at any time during the two year period ending May 12, 1999 at an
exercise price of $7.20 per share. See "Management -- 1996 and 1997 Stock
Option Plans" and "-- 1997 Employee Stock Purchase Plan."
(2) The Company's statement of operations data for 1992, 1993 and 1994 consist
of the accounts of THISCO. Statement of operations data for periods
thereafter reflect the operations of the Company, including the acquisition
of 83.3% of the outstanding capital stock of HCC in July 1995 and the
acquisition of the remaining 16.7% of the outstanding capital stock of HCC
in June 1996, together with the depreciation and amortization applicable to
such acquisitions. Amortization applicable to the acquisition of HCC totaled
$645,419, $1,412,499 and $1,150,533 in 1995, 1996 and the nine months ended
September 30, 1997, respectively. See Notes 1, 2 and 3 of Notes to
Consolidated Financial Statements.
(3) See Notes 1 and 16 of Notes to Consolidated Financial Statements and Note 4
of Notes to Consolidated Interim Financial Statements for information
concerning the calculation of basic and diluted net loss per share. Such
calculations reflect the adoption by the Company of Statement of Financial
Accounting Standards No. 128, "Earnings per Share" (FAS 128) for the year
ended December 31, 1997, which requires restatement of all periods presented
in the Company's Consolidated Financial Statements included herein. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Recently Issued Accounting Standards."
(4) Adjusted to reflect the sale of the 276,088 shares of Common Stock offered
by the Company hereby at an assumed public offering price of $15.50 per
share and application of the estimated net proceeds. See "Use of Proceeds"
and "Capitalization."
5
<PAGE> 10
Except as set forth in the Consolidated Financial Statements and the Notes
thereto or as otherwise indicated, the information contained in this Prospectus
assumes no exercise of the Underwriters' over-allotment option. This Prospectus
contains forward-looking statements that involve risks and uncertainties. The
Company's actual results and the timing of certain events could differ
materially from those discussed in the forward-looking statements as a result of
certain factors, including those set forth under "Risk Factors" and elsewhere in
this Prospectus.
UltraSwitch(R), TravelWeb(R), HCC Hotel Clearing Corporation(R),
ChainLink(R), HCC Ca$h(R), HCC Link(R) and UltraAccess(R) are registered
trademarks of the Company. This Prospectus also includes trademarks and
tradenames of companies other than the Company, which are the property of their
respective owners.
6
<PAGE> 11
RISK FACTORS
This Prospectus contains forward-looking statements that involve risks and
uncertainties. The Company's actual results and the timing of certain events
could differ materially from those discussed in the forward-looking statements
as a result of certain factors, including those set forth below and elsewhere in
this Prospectus. The following risk factors should be considered carefully in
evaluating the Company and an investment in the Common Stock offered hereby.
Substantial Net Losses. The Company has experienced substantial net losses,
including a net loss of $3.5 million in 1996, and had an accumulated deficit of
approximately $14.6 million as of September 30, 1997. The Company's HCC and
THISCO services have accounted for the majority of the Company's revenues to
date. Any decrease in the revenues from the HCC or THISCO services, or any
increase in expenses related to any of the Company's services substantially
above the amounts budgeted therefor, could have a material adverse effect on the
Company's financial condition and results of operations. The Company anticipates
that its budgeted operating expenses will increase in the foreseeable future as
it continues to develop its services, increase its sales and marketing
activities and expand its distribution channels. To achieve profitability, the
Company must successfully implement its business strategy and increase its
revenues while controlling expenses. There can be no assurance as to when or if
the Company will achieve profitability. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
Competition.
-- Electronic Hotel Room Reservation Processing Service. The Company faces
significant competition in connection with its THISCO hotel room reservation
processing service. The principal competitor of the Company's THISCO service is
WizCom International, Ltd. ("WizCom"), which was a wholly owned indirect
subsidiary of Avis, Inc. ("Avis"). As a result of the acquisition of Avis by HFS
Incorporated ("HFS") in September 1996, WizCom became a wholly owned indirect
subsidiary of HFS. Although HFS has recently renewed its participation in the
Company's HCC service, HFS began moving its electronic hotel room reservation
processing from THISCO to WizCom in November 1997, and the Company expects that
all HFS electronic reservations with the exception of those being processed by
the Company's TravelWeb service will be moved to WizCom by the end of January
1998. The Company has an agreement with HFS which requires HFS to pay for a
certain minimum level of THISCO processing services annually for the life of the
agreement. In 1996, revenues from HFS for electronic hotel room processing
services were $517,905 above the annual minimum fee under the agreement, which
was $182,700. HFS historically has generated more revenues for the Company than
any other hotel chain that is a customer and a stockholder of Pegasus. See
"Certain Transactions." HFS accounted for 12.3%, 9.5%, 4.7% and 3.8% of the
Company's revenues during 1994, 1995, 1996 and the nine months ended September
30, 1997, respectively. There can be no assurance that any additional customers
will not change their electronic reservation interface to WizCom or to another
similar service. Also, hotels can choose to connect directly to one or more
GDSs, thereby bypassing the THISCO service and eliminating the need to pay fees
to the Company. Such competitors or their affiliates may have greater financial
and other resources than the Company. Factors affecting the competitive success
of an electronic hotel room reservation processing service include reliability,
levels of fees, number of hotel properties on the system, ability to provide a
neutral comprehensive interface between hotels and other participants in the
distribution of hotel rooms and ability to develop new technological solutions.
There can be no assurance that another participant in the hotel room
distribution process or a new competitor will not create services with features
that would reduce the attractiveness of the Company's services. The Company's
inability to compete effectively with respect to these services could have a
material adverse effect on the Company's financial condition and results of
operations. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business -- Recent Developments" and " -- Competition."
The Company charges hotel participants certain fees for processing status
messages from hotel central reservation systems to GDSs. Status messages are
electronic messages sent by hotels to GDSs to update room rates, features and
availability information in GDS databases. Effective July 1997, the Company
reduced the unit fee per message for certain status messages by 10%. In
addition, a hotel participant can choose to use the Company's UltraSelect
service to provide travel agencies direct access through GDSs to its central
reservation
7
<PAGE> 12
system, thereby reducing the need to send status messages through the Company's
THISCO service. There can be no assurance that the volume of, and fees generated
from, status message processing will remain at the same or a higher level in the
future. Any significant decrease in the volume of status messages processed or
in the amount of status message fees generated could have a material adverse
effect on the Company's financial condition and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- Services."
-- Internet Hotel Room Reservation Service. The market for the Company's
TravelWeb and NetBooker services is highly competitive. Current competition
includes traditional telephone or travel agency reservation methods and other
Internet travel reservation services. There are a large number of Internet
travel-related services offered by the Company's competitors, and many of these
competitors are larger and have significantly greater financial resources and
name recognition than the Company. Several competitive Web sites such as
Travelocity (a site operated by The SABRE Group Holdings, Inc.) and Expedia.com
(a site operated by Microsoft Corporation) offer a more comprehensive range of
travel services than those provided by the Company. Furthermore, the Company has
entered into agreements with certain of its competitors which may enhance such
competitors' positions in the marketplace. The Company faces competition in the
online hotel room reservation business not only from its current competitors but
also from possible new entrants, including other Web sites. The costs of entry
into the Internet hotel room reservation business are relatively low. To date
the Company has not invested significant amounts in the marketing and
advertising of its TravelWeb service. However, the Company anticipates that it
will incur substantially higher marketing costs in the foreseeable future due to
the Company's plan to increase its expenditures on promotional activities in
support of its services generally and in particular for its TravelWeb service.
There can be no assurance that such increased promotional spending will result
in additional TravelWeb revenues. There can also be no assurance that the
Company's Internet hotel room reservation services will compete successfully.
The failure of these services to compete successfully could have a material
adverse effect on the Company's financial condition and results of operations.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- Competition."
-- Commission Processing Service. The market for the Company's HCC service
is competitive. The Company's competitors in the commission processing business
include National Processing Company ("NPC"), WizCom and Citicorp. NPC, a company
that has traditionally provided car rental and cruise line commission processing
services, recently began offering its services to hotels and travel agencies.
WizCom has recently announced its intention to offer a service that may be
competitive with the Company's HCC service. Citicorp provides commission
consolidation services to hotel chains. In addition, hotels that are current or
prospective customers of the HCC service can decide to process commission
payments without, or in competition with, the HCC service. Some of these current
or potential competitors have substantially greater financial and other
resources than the Company. Furthermore, while the Company has agreements with
all of its hotel customers for the HCC service, most of the Company's travel
agency customers are not obligated by any agreement with the Company. If a
significant percentage of these travel agencies were to cease using the HCC
commission processing service, the Company's financial condition and results of
operations could be materially adversely affected. See "Management Discussion
and Analysis of Financial Condition and Results of Operations" and
"Business -- Competition."
Dependence on Hotel Industry; Consolidation Trends. The Company derives
substantially all of its revenues directly and indirectly from the hotel
industry. The hotel industry is sensitive to changes in economic conditions that
affect business and leisure travel and is highly susceptible to unforeseen
events, such as political instability, regional hostilities, recession, gasoline
price escalation, inflation or other adverse occurrences that result in a
significant decline in the utilization of hotel rooms. Any event that results in
decreased travel or increased competition among hotels may lower hotel room
reservation volumes, the average daily rates for hotel rooms or both and could
have a material adverse effect on the Company's financial condition and results
of operations.
The hotel industry recently has witnessed a period of consolidation in
which hotel chains have acquired or merged with other chains. Such activities
may reduce the Company's customer base. Similar consolidation trends have
occurred in the GDS industry. After the recent merger between Amadeus and System
One, the GDS industry has consolidated to four major GDSs. If further
consolidation were to take place, the value
8
<PAGE> 13
provided by the Company to participants in the hotel room distribution process
and the benefits to hotel operators of utilizing the THISCO service would be
reduced. The Company typically offers volume-based discounting of its fees,
which could result in a higher percentage of discounted fees if the
consolidation trends in the hotel and GDS industries continue. There can be no
assurance that any potential decrease in the Company's customer base or any
potential increase in the percentage of discounted fees will not have a material
adverse effect on the Company's financial condition and results of operations.
Fluctuations in Quarterly Operating Results. The Company has experienced in
the past and expects to experience in the future significant fluctuations in
quarterly operating results. Such fluctuations may be caused by many factors,
including but not limited to the introduction of new or enhanced services by the
Company or its competitors, the degree of customer acceptance of new services,
competitive conditions in the industry, seasonal factors, reduction in client
base, changes in pricing, the extent of international expansion, the mix of
international and domestic sales and general economic conditions. Because the
Company's expense budget is set early in a fiscal year and a significant portion
of the Company's operating expenses are relatively fixed in nature, fluctuations
in revenues may cause substantial variations in the Company's results of
operations from quarter to quarter. Due to the foregoing factors, many of which
are beyond the Company's control, quarterly revenues and operating results are
difficult to forecast, and the Company believes that period-to-period
comparisons of its operating results will not necessarily be meaningful and
should not be relied upon as any indication of future performance. It is likely
that the Company's future quarterly operating results from time to time will not
meet the expectations of securities analysts or investors, which could have a
material adverse effect on the market price of the Company's Common Stock. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
Potential Adverse Changes in Hotel Commission Payments. Absent any express
arrangement in individual cases, hotels currently are under no contractual
obligation to pay room reservation commissions to travel agencies. Hotels could
elect to reduce the current industry customary commission rate of 10%, limit the
maximum commission generally paid for a hotel room reservation or eliminate
commissions entirely. In 1995, the airline industry placed a maximum limit on
the amount of commissions payable to travel agencies for any domestic airline
ticket issued. Recently, certain airlines have capped the dollar amount that
they will pay to travel agencies for airline reservations made online. In
addition, hotels increasingly are utilizing other direct distribution channels,
such as the Internet, or offering negotiated rates to major corporate customers
that are non-commissionable to travel agencies. Also, the Company is changing
the method it uses to calculate booking fees for the use of its TravelWeb
service from a flat fee to a fee based on the rate of the hotel room reserved.
There can be no assurance that the fees generated from the TravelWeb service
will remain at the same or a higher level in the future. Any significant
decrease in the amount of fees received for the TravelWeb service could have a
material adverse effect on the Company's financial condition and results of
operations. Because a substantial portion of the Company's revenues are
dependent on the dollar volume of travel agency commissions paid by hotels, any
change in the hotel commission payment system that reduces the commissions
payable to travel agencies and any acceleration of the trend towards direct
distribution of rooms by hotels could have a material adverse effect on the
Company's financial condition and results of operations. See
"Business -- Services."
Control by Existing Stockholders; Conflicts of Interest. Upon the
completion of this offering, the persons and entities that were stockholders of
the Company before the Company's initial public offering will beneficially own
approximately 43.8% of the outstanding Common Stock, including 28.7% that will
be owned either by hotel companies or hotel representation firms. As a result,
these stockholders, if they act together, will be able to exercise significant
influence over all matters requiring stockholder approval, including the
election of directors and approval of significant corporate transactions. Such
concentration of ownership could have the effect of delaying, preventing or
deferring a change in control of the Company. The Company's interest in
achieving profitability from its services to the hotel industry conflicts with
the interests of some of its existing stockholders or their affiliates to lower
their costs of utilizing the Company's services. For the nine months ending
September 30, 1997, services provided by Pegasus to its stockholders of record
as of September 30, 1997 directly and indirectly accounted for 68.2% (excludes
HFS for the entire period) of the
9
<PAGE> 14
Company's revenues. See Note 14 of Notes to Consolidated Financial Statements.
Additionally, to the extent TravelWeb and other Web-based services, including
the third-party Web sites using the Company's NetBooker service, are successful
in causing consumers to shop for and reserve hotel rooms directly, such success
could adversely affect the role of travel agencies and correspondingly could
materially adversely affect future HCC revenues of the Company. Reed Travel
Group, a division of Reed Elsevier Inc. and a stockholder of the Company
("Reed"), holds certain license rights to use the Company's UltraSwitch
technology for applications unrelated to the hotel industry, which may limit or
otherwise conflict with the Company's ability to expand its service offerings.
Any of these conflicts could result in a material adverse effect on the
Company's financial condition and results of operations. See
"Business -- Technology and Operations," "Certain Transactions" and "Principal
and Selling Stockholders."
Dependence on Growth of Internet Commerce. The market for electronic hotel
reservation services over the Internet is rapidly evolving and depends upon
market acceptance of novel methods for distributing services and products, which
involves a high degree of uncertainty. The success of the Company's TravelWeb
and NetBooker services will depend upon the adoption of the Internet by
consumers as a widely used medium for commerce. The Internet may not prove to be
a viable commercial marketplace for any number of reasons, including inadequate
development of the necessary infrastructure or the lack of complementary
services and products, such as high speed modems and high speed communication
lines. The Internet has experienced, and is expected to continue to experience,
significant growth in the number of users and amount of traffic. There can be no
assurance that the Internet infrastructure will continue to be able to support
the demands placed on it by this continued growth. Moreover, critical issues
concerning the commercial use of the Internet (including security, reliability,
cost, ease of use, accessibility and quality of service) remain unresolved and
may negatively affect the growth or attractiveness of commerce conducted on the
Internet. If critical issues concerning the commercial use of the Internet are
not resolved favorably, if the necessary infrastructure is not developed or if
the Internet does not become a viable commercial marketplace, the Company's
financial condition and results of operations could be materially adversely
affected. See "Business -- Industry Background" and "-- Services."
System Interruption and Security Risks. The Company's operations are
dependent on its ability to protect its computer systems and databases against
damage or system interruptions from fire, earthquake, power loss,
telecommunications failure, unauthorized entry or other events beyond the
Company's control. A significant amount of the Company's computer equipment is
located at a single site in Phoenix, Arizona. There can be no assurance that
unanticipated problems will not cause a significant system outage or data loss.
Despite the implementation of security measures, the Company's infrastructure
may also be vulnerable to break-ins, computer viruses or other disruptions
caused by its customers or others. Any damage to the Company's databases,
failure of communication links or security breach or other loss that causes
interruptions in the Company's operations could have a material adverse effect
on the Company's financial condition and results of operations. See
"Business -- Systems Maintenance and Disaster Recovery."
Impact of Technological Advances; Delays in Introduction of New
Services. The Company's future success will depend, in part, on its ability to
develop leading technology, enhance its existing services, develop and introduce
new services that address the increasingly sophisticated and varied needs of its
current and prospective customers and respond to technological advances and
emerging industry standards and practices on a timely and cost effective basis.
Although the Company strives to be a technological leader, there can be no
assurance that future advances in technology will be beneficial to, or
compatible with, the Company's business or that the Company will be able
economically to incorporate such advances into its business. In addition,
keeping abreast of technological advances in the Company's business may require
substantial expenditures and lead time. There can be no assurance that the
Company will be successful in effectively using new technologies, adapting its
services to emerging industry standards or developing, introducing and marketing
service enhancements or new services, or that it will not experience
difficulties that could delay or prevent the successful development,
introduction or marketing of these services. If the Company incurs increased
costs or is unable, for technical or other reasons, to develop and introduce new
services or enhancements of existing services in a timely manner in response to
changing market conditions or customer requirements, or if new services do not
achieve market acceptance, the Company's financial condition and
10
<PAGE> 15
results of operations could be materially adversely affected. See
"Business -- Services" and "-- Technology and Operations."
Dependence on Key Customers and Third-Party Service Arrangements. The
Company's business is dependent upon customer arrangements with its hotel
stockholders or their affiliates, other hotel chains and hotel representation
firms, travel agencies, travel agency consortia and GDSs. The Company has not
entered into written agreements with certain travel agencies relating to the HCC
service. There can be no assurance that the Company will be able to continue or
renew these arrangements on equal or better terms or initiate new arrangements.
Any cancelation or non-renewal of these arrangements that results in a
significant reduction in the Company's customer base or revenue sources could
materially adversely affect the Company's financial condition and results of
operations. In addition, the Company currently relies on third parties to
provide consolidation, remittance and worldwide currency exchange services for
its HCC service and facility maintenance and disaster recovery services for
computer and communications systems used in all of the Company's services. There
can be no assurance that these service contracts will be successfully extended
upon expiration or that Pegasus can enter into contracts with alternate service
providers at the same or lower cost. Any failure by the Company to extend these
contracts or to secure alternate service providers could have a material adverse
effect on the Company's financial condition and results of operations. In
addition, if certain of these service contracts are not extended and the Company
elects to perform such services rather than rely on a third party, the failure
by the Company to perform adequately and cost effectively such services could
have a material adverse effect on the Company's financial condition and results
of operations. See "Business -- Services," "-- Customers," "-- Technology and
Operations" and "-- Systems Maintenance and Disaster Recovery."
Government Regulation. The Company's primary customers are hotel chains and
hotel representation firms. The Company currently has as its stockholders 10 of
the 15 leading hotel chains in the world based on 1996 total revenues. While the
Company believes that since its inception it has been acting as an entity
independent of its stockholders, and its stockholders have not engaged in any
anti-competitive activities through or in connection with the Company, there can
be no assurance that federal, state or foreign governmental authorities, the
Company's competitors or its consumers will not raise anti-competitive concerns
regarding the Company's close relationship with its hotel stockholders. Any such
action by federal, state or foreign governmental authorities or allegations by
third parties could have a material adverse effect on the Company's financial
condition and results of operations. While certain aspects of the travel
industry are heavily regulated by the United States Government, the services
currently offered by the Company, including electronic room reservation
processing services, commission processing services and online reservation
services, have not been subject to any material industry-specific government
regulation. However, there can be no assurance that federal, state or foreign
governmental authorities will not attempt to regulate one or more of the
Company's current or future services. Due to the increasing popularity of the
Internet, it is possible that laws and regulations may be adopted with respect
to the Internet, covering issues such as privacy, pricing, content and quality
of products and services. The adoption of laws or regulations affecting the
Company's lines of business could reduce the rate of growth of the Company or
could otherwise have a material adverse effect on the Company's financial
condition and results of operations. See "Business -- Government Regulation."
Risks Associated with Management of Growth. The Company has in recent years
experienced significant growth and anticipates that significant expansion will
continue to be required in order to address potential market opportunities. The
Company intends to continue to increase the size of its Information Technology
Group and sales and marketing staff. There can be no assurance that if the
Company continues to expand, management will be effective in attracting and
retaining additional qualified personnel, expanding the Company's physical
facilities, integrating acquired businesses or otherwise managing growth. In
addition, there can be no assurance that the Company's systems, procedures or
controls will be adequate to support any expansion of the Company's operations.
The Company's inability to manage growth effectively could have a material
adverse effect on the Company's financial condition and results of operations.
Risks Associated with International Expansion and Operations. Pursuit of
international growth opportunities may require significant investments for an
extended period before returns on such investments, if any, are realized. There
can be no assurance as to the extent, if at all, that the Company's plans to
expand in
11
<PAGE> 16
international markets will be successful. The Company's current international
activities and prospects may be adversely affected by factors such as policies
of the United States and foreign governments affecting foreign trade, privacy
issues, investment and taxation, exchange controls, political risks and currency
risks. One or more of these factors could materially adversely affect the
Company's financial condition and results of operations. See
"Business -- Strategy."
Dependence on Key Personnel. The Company believes that its success will
continue to be dependent upon its ability to attract and retain skilled managers
and other key personnel, including its President, John F. Davis, III, its Chief
Information Officer, Joseph W. Nicholson, and its other present officers. The
loss of the services of any of its present officers could have a material
adverse effect on the Company's financial condition and results of operations.
Although the Company currently has "key-man" insurance covering Messrs. Davis
and Nicholson, there can be no assurance that the amount of such insurance would
be adequate to compensate for the loss of the services of the insured officers.
The Company believes that its future business results will also depend in
significant part upon its ability to identify, attract, motivate and retain
additional highly skilled technical personnel. Competition for such personnel in
the information technology industry is intense. There can be no assurance that
the Company will be successful in identifying, attracting, motivating and
retaining such personnel, and the failure to do so could have a material adverse
effect on the Company's financial condition and results of operations. See
"Management."
Dependence on Proprietary Technology; Risk of Infringement. The Company's
success depends upon its proprietary technology, consisting of both its software
and its hardware designs. The Company relies upon a combination of copyright,
trade secrets, confidentiality procedures and contractual provisions to protect
its proprietary technology. There can be no assurance that the Company's present
protective measures will be enforceable or adequate to prevent misappropriation
of its technology or independent third-party development of the same or similar
technology. Many foreign jurisdictions offer less protection of intellectual
property rights than the United States, and there can be no assurance that the
protection provided to the Company's proprietary technology by the laws of the
United States or foreign jurisdictions will be sufficient to protect the
Company's technology. In addition, litigation may be necessary in the future to
enforce the Company's intellectual property rights, to protect the Company's
trade secrets, to determine the validity and scope of the proprietary rights of
others, or to defend against claims of infringement or invalidity. Such
litigation, whether successful or unsuccessful, could result in substantial cost
and diversion of management resources, and a successful claim could effectively
block the Company's ability to use or license its technology in the United
States or abroad or otherwise have a material adverse effect on the Company's
financial condition and results of operations.
The Company has found and may in the future find it necessary or desirable
to procure licenses from third parties relating to current or future services or
technology, but there can be no assurance that the Company will continue to be
able to obtain such licenses or other rights or, if it is able to obtain them,
that it will be able to do so on commercially acceptable terms. The Company
could be placed at a disadvantage if its competitors obtain licenses with lower
royalty fee payments or other terms more favorable than those received by the
Company. If the Company or its suppliers were unable to obtain licenses relating
to current or future services or technology, the Company could be forced to
market services without certain technological features. The Company's inability
to obtain licenses necessary to use certain technology or its inability to
obtain such licenses on competitive terms could have a material adverse effect
on the Company's financial condition and results of operations. See
"Business -- Proprietary Rights."
Risks Associated with Potential Acquisitions. While the Company has no
current agreements or negotiations underway with respect to any potential
acquisitions, the Company regularly evaluates such opportunities and may make
acquisitions of other companies or technologies in the future. Acquisitions
involve numerous risks, including difficulties in assimilating acquired
operations and products, diversion of management's attention from other business
concerns, amortization of acquired intangible assets and potential loss of key
employees of acquired companies. The Company has no experience in assimilating
acquired nonaffiliated organizations into the Company's operations. There can be
no assurance as to the ability of the Company to integrate successfully any
operations, personnel or services that might be acquired in the future,
12
<PAGE> 17
and a failure by the Company to do so could have a material adverse effect on
the Company's financial condition and results of operations. See
"Business -- Strategy."
Year 2000 Compliance. The Company has implemented a program designed to
ensure that all software used in connection with the Company's services will
manage and manipulate data involving the transition of dates from 1999 to 2000
without functional or data abnormality and without inaccurate results related to
such dates. However, other participants in the travel industry have announced
that their software may experience such abnormalities unless significant
resources are devoted to solving the problem. Any failure on the part of the
Company, or its travel-related customers to ensure that any such software
complies with year 2000 requirements, regardless of when such travel
reservations occur, could have a material adverse effect on the financial
condition and results of operations of the Company.
Management's Discretion as to Use of Unallocated Net Proceeds. The Company
has not designated a specific use for the net proceeds to the Company from the
sale of Common Stock in this offering. The Company expects to use the net
proceeds of this offering for working capital and other general corporate
purposes. Consequently, the Board of Directors and management of the Company
will have broad discretion in allocating a significant portion of the net
proceeds to the Company from this offering. See "Use of Proceeds," "Certain
Transactions" and "Principal and Selling Stockholders."
Future Capital Needs; Uncertainty of Additional Financing. The Company
currently anticipates that its available cash resources combined with the net
proceeds to the Company from this offering will be sufficient to meet its
presently anticipated working capital and capital expenditure requirements for
at least the next 12 months. However, the Company may need or choose to raise
additional funds in order to support more rapid expansion, develop new or
enhanced services, respond to competitive pressures, acquire complementary
businesses or technologies or respond to unanticipated requirements. If
additional funds are raised through the issuance of equity securities, the
percentage ownership of the stockholders of the Company will be reduced,
stockholders may experience additional dilution in net book value per share, and
such equity securities may have rights, preferences or privileges senior or
similar to those of the holders of the Company's Common Stock. There can be no
assurance that additional financing will be available when needed on terms
favorable to the Company, if at all. If adequate funds are not available on
acceptable terms, the Company may be unable to develop or enhance its services,
take advantage of future opportunities or respond to competitive pressures or
unanticipated requirements, any of which could have a material adverse effect on
the Company's financial condition and results of operations. See "Dilution" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
Shares Eligible for Future Sale. Sales of substantial amounts of shares in
the public market following this offering could have a material adverse effect
on the market price of the Common Stock. Immediately following the offering, the
Company will have 10,457,133 shares of Common Stock outstanding. Of these
shares, 4,332,756 shares will be "restricted securities" as defined by Rule 144
("Rule 144") adopted under the Securities Act of 1933, as amended (the
"Securities Act"). These shares may be sold in the public market only if
registered or if they qualify for an exemption from registration under Rule 144
or Rule 701 ("Rule 701") adopted under the Securities Act. The Company is unable
to predict the effect that future sales made under Rule 144, Rule 701 or
otherwise will have on the market price of the Common Stock prevailing at that
time. The Company, certain of its executive officers and directors who are
stockholders, and the Selling Stockholders have agreed, subject to certain
limited exceptions, not to offer, sell, contract to sell, grant any option to
purchase or otherwise dispose of any shares of Common Stock for a period of 90
days after the date of this Prospectus, without the prior written consent of
Hambrecht & Quist LLC. Any shares subject to these lock-up agreements may be
released at any time by Hambrecht & Quist LLC with or without notice. Pursuant
to an agreement between the Company and the holders (or their permitted
transferees) of approximately 4,332,756 shares of Common Stock, these holders
will be entitled to certain registration rights with respect to such shares. See
"Management -- 1996 and 1997 Stock Option Plans," "Description of Capital
Stock -- Registration Rights," "Shares Eligible for Future Sale" and
"Underwriting."
Anti-Takeover Matters. The Company's Second Amended and Restated
Certificate of Incorporation ("Certificate") and Second Amended and Restated
By-laws ("By-laws") contain provisions that may have
13
<PAGE> 18
the effect of delaying, deterring or preventing a potential takeover of the
Company that stockholders purchasing shares in this offering may consider to be
in their best interests. The Certificate and By-laws provide for a classified
Board of Directors serving staggered terms of three years, prevent stockholders
from calling a special meeting of stockholders and prohibit stockholder action
by written consent. The Certificate also authorizes only the Board of Directors
to fill vacancies, including newly created directorships and states that
directors of the Company may be removed only for cause and only by the
affirmative vote of holders of at least two-thirds of the outstanding shares of
the voting stock, voting together as a single class. In addition, the
Certificate grants the Board of Directors the authority to issue up to 2,000,000
shares of preferred stock, having such rights, preferences and privileges as
designated by the Board of Directors, without stockholder approval. Section 203
of the Delaware General Corporation Law, which is applicable to the Company,
contains provisions that restrict certain business combinations with interested
stockholders, which may have the effect of inhibiting a non-negotiated merger or
other business combination involving the Company. See "Description of Capital
Stock -- Anti-Takeover Provisions."
Potential Volatility of Stock Price. The market price for the Company's
Common Stock has been and may continue to be highly volatile. The Company
believes that factors such as quarterly fluctuations in financial results or
announcements by the Company or its competitors, travel agencies, hotel
operators or other hotel industry participants could cause the market price of
the Common Stock to fluctuate substantially. In addition, the stock market may
experience extreme price and volume fluctuations which often are unrelated to
the operating performance of specific companies. Market fluctuations or
perceptions regarding the hotel industry, as well as general economic or
political conditions, may adversely affect the market price of the Common Stock.
In the past, following periods of volatility in the market price for a company's
securities, securities class action litigation has often been instituted. Such
litigation could result in substantial costs and a diversion of management
attention and resources, which could have a material adverse effect on the
Company's financial condition and results of operations.
14
<PAGE> 19
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 276,088 shares of
Common Stock offered by the Company hereby at an assumed public offering price
of $15.50 per share are estimated to be approximately $3,665,000 (approximately
$4,275,000 if the Underwriters' over-allotment option is exercised in full),
after deducting the underwriting discount and estimated offering expenses
payable by the Company. The Company will not receive any of the proceeds from
the sale of Common Stock by the Selling Stockholders. See "Principal and Selling
Stockholders."
The Company has no specific plans for the net proceeds but expects that
such proceeds will be used for general corporate purposes, including working
capital. The amounts and timing of the Company's actual expenditures will depend
upon numerous factors, including the Company's research and development efforts,
competition and marketing and sales activities. Pending application of the net
proceeds as described above, the Company intends to invest such proceeds in
short-term marketable securities. See "Risk Factors -- Management's Discretion
as to Use of Unallocated Net Proceeds" and "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Liquidity and Capital
Resources."
DIVIDEND POLICY
To date, the Company has neither declared nor paid any cash dividends on
shares of its Common Stock. The Company currently intends to retain its earnings
in the future to support operations and finance its growth and, therefore, does
not intend to pay cash dividends on the Common Stock in the foreseeable future.
The payment of cash dividends in the future will be at the discretion of the
Board of Directors and subject to certain limitations under the Delaware General
Corporation Law and will depend upon factors such as the Company's earnings
levels, capital requirements, financial condition and other factors deemed
relevant by the Board of Directors. There can be no assurance that the Company
will pay any dividends in the future.
PRICE RANGE OF COMMON STOCK
The Company effected its initial public offering of Common Stock on August
6, 1997 at a price to the public of $13.00 per share. Since that date, the
Company's Common Stock has traded on the Nasdaq National Market under the symbol
PEGS. The table below sets forth for the fiscal quarters indicated the high and
low sale prices for the Common Stock.
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1998
First quarter (through January 23, 1998).................. $17.50 $13.63
1997
Fourth quarter............................................ 20.75 12.50
Third quarter (From August 6, 1997)....................... 19.25 15.50
</TABLE>
On January 23, 1998, the last reported sale price on the Nasdaq National
Market for the Company's Common Stock was $15.50 per share. As of January 23,
1998, there were approximately 33 record holders of Common Stock, although the
Company believes that the number of beneficial owners of its Common Stock is
substantially greater. See "Risk Factors -- Potential Volatility of Stock
Price."
15
<PAGE> 20
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
September 30, 1997 (i) on an actual basis and (ii) as adjusted to give effect to
the sale by the Company of the 276,088 shares of Common Stock offered hereby at
an assumed public offering price of $15.50 per share and the application of the
estimated net proceeds therefrom as set forth in "Use of Proceeds." This table
should be read in conjunction with the Consolidated Financial Statements and
Notes thereto and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
-------------------
AS
ACTUAL ADJUSTED
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Current portion of long-term obligations.................... $ 1,049 $ 1,049
======== ========
Long-term obligations, net of current portion............... 937 937
-------- --------
Stockholders' equity:
Preferred Stock, $.01 par value, 2,000,000 shares
authorized; no shares issued and outstanding........... -- --
Common Stock, $.01 par value, 100,000,000 shares
authorized; 10,296,196 shares issued (actual);
10,572,284 shares issued (as adjusted)(1).............. 103 106
Additional paid-in capital................................ 58,116 61,778
Unearned compensation expense............................. (814) (814)
Accumulated deficit....................................... (14,640) (14,640)
Less treasury stock (116,484 shares, at cost)............. (26) (26)
-------- --------
Total stockholders' equity........................... 42,739 46,404
-------- --------
Total capitalization.............................. $ 43,676 $ 47,341
======== ========
</TABLE>
- ------------------------------
(1) Excludes as of September 30, 1997 (i) 866,667 shares of Common Stock
reserved for issuance under the Company's 1996 Plan, of which options to
purchase 865,070 shares of Common Stock were outstanding at a weighted
average exercise price of $3.33 per share, (ii) 333,333 shares of Common
Stock reserved for issuance under the Company's 1997 Plan, of which options
to purchase 221,000 shares of Common Stock were outstanding at a weighted
average exercise price of $15.30 per share and (iii) 500,000 shares of
Common Stock reserved for issuance under the Company's 1997 Employee Stock
Purchase Plan. In May 1997, the Company issued to Holiday Inn warrants to
purchase 345,723 shares of Common Stock. The warrants are exercisable at any
time during the two year period ending May 12, 1999 at an exercise price of
$7.20 per share. See "Management -- 1996 and 1997 Stock Option Plans" and
"--1997 Employee Stock Purchase Plan."
16
<PAGE> 21
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data as of and for the year
ended December 31, 1996 are derived from the Consolidated Financial Statements
of the Company that have been audited by Price Waterhouse LLP, independent
accountants, and are included elsewhere in this Prospectus. The selected
consolidated financial data as of and for the year ended December 31, 1995 and
the selected consolidated financial data for the year ended December 31, 1994
are derived from the financial statements of the Company that have been audited
by Belew Averitt LLP, independent accountants, and are included elsewhere in
this Prospectus. The selected financial data as of December 31, 1994 and as of
and for the year ended December 31, 1993 are derived from the Company's
financial statements that have been audited by Belew Averitt LLP, but are not
included herein. The selected financial data as of and for the year ended
December 31, 1992 are derived from the Company's financial statements that were
audited by other independent accountants, but are not included herein.
The selected consolidated financial data as of and for the nine months
ended September 30, 1996 and 1997 are derived from unaudited consolidated
financial statements and are included elsewhere in this Prospectus. The
unaudited consolidated financial statements include all adjustments, consisting
of normal recurring accruals, which the Company considers necessary for a fair
presentation of the financial position and the results of operations for these
periods. Operating results for the nine months ended September 30, 1997 are not
necessarily indicative of the results that may be expected for all of 1997. The
data should be read in conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and with the Company's
Consolidated Financial Statements and Notes thereto.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------------------------- -----------------
1992 1993 1994 1995 1996 1996 1997
------- ------ ------ ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS DATA(1):
Net revenues............................... $ 2,792 $3,938 $4,666 $ 9,296 $15,869 $11,784 $15,236
Operating expenses:
Cost of services......................... 1,172 1,266 1,546 3,883 6,199 4,685 5,471
Research and development................. 303 397 238 840 1,961 1,346 1,818
Write-off of purchased in-process
research and development............... -- -- -- 1,223 245 245 --
General and administrative expenses...... 652 709 1,065 2,770 3,799 2,725 2,612
Marketing and promotion expenses......... 66 17 130 912 2,824 1,984 2,986
Depreciation and amortization............ 1,212 1,351 1,519 2,477 3,426 2,602 2,291
------- ------ ------ ------- ------- ------- -------
Total operating expenses............ 3,405 3,740 4,498 12,105 18,454 13,587 15,178
------- ------ ------ ------- ------- ------- -------
Operating income (loss).................... (613) 198 168 (2,809) (2,585) (1,803) 58
Other (income) expense:
Interest expense......................... 568 597 591 815 893 621 543
Interest income.......................... (2) (1) -- -- (114) (59) (442)
------- ------ ------ ------- ------- ------- -------
Loss before income taxes and minority
interest................................. (1,179) (398) (423) (3,624) (3,364) (2,365) (43)
Income taxes............................... -- -- -- -- 15 -- 26
------- ------ ------ ------- ------- ------- -------
Loss before minority interest.............. (1,179) (398) (423) (3,624) (3,379) (2,365) (69)
Minority interest.......................... -- -- -- 53 (106) (106) --
------- ------ ------ ------- ------- ------- -------
Net loss................................... $(1,179) $ (398) $ (423) $(3,571) $(3,485) $(2,471) $ (69)
======= ====== ====== ======= ======= ======= =======
Basic and diluted net loss per share(2).... $(0.56) $ (1.30) $ (0.66) $ (0.47) $ (0.01)
====== ======= ======= ======= =======
Weighted average shares used in the basic
and diluted net loss per share
calculation(2)........................... 762 2,752 5,247 5,235 6,196
</TABLE>
17
<PAGE> 22
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
------------------------------------------------ ---------------------------
1992 1993 1994 1995 1996 1997 AS ADJUSTED(3)
---- ---- ---- ---- ---- ---- ----------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED BALANCE SHEET
DATA:
Working capital
(deficit).............. $ (103) $ (126) $ (844) $(1,560) $ 2,068 $ 38,071 $ 41,736
Total assets............. 5,490 4,872 4,150 10,316 13,892 49,890 53,555
Accounts payable and
accrued liabilities.... 423 415 690 1,941 2,689 3,832 3,832
Short-term borrowings,
including current
portion of long-term
debt................... 407 459 1,392 1,049 1,834 1,049 1,049
Long-term obligations,
net of current
portion................ 6,488 6,224 4,718 6,994 6,353 937 937
Minority interest........ -- -- -- 1,340 -- -- --
Accumulated deficit...... (6,693) (7,091) (7,514) (11,085) (14,570) (14,640) (14,640)
Total stockholders'
equity (deficit)....... (1,828) (2,226) (2,649) (2,380) 1,954 42,739 46,404
</TABLE>
- ------------------------------
(1) The Company's statement of operations data for 1992, 1993 and 1994 consist
of the accounts of THISCO. Statement of operations data for periods
thereafter reflect the operations of the Company, including the acquisition
of 83.3% of the outstanding capital stock of HCC in July 1995 and the
acquisition of the remaining 16.7% of the outstanding capital stock of HCC
in June 1996, together with the depreciation and amortization applicable to
such acquisitions. Amortization applicable to the acquisition of HCC totaled
$645,419, $1,412,499 and $1,150,533 in 1995, 1996 and the nine months ended
September 30, 1997, respectively. See Notes 1, 2 and 3 of Notes to
Consolidated Financial Statements.
(2) See Notes 1 and 16 of Notes to Consolidated Financial Statements and Note 4
of Notes to Consolidated Interim Financial Statements for information
concerning the calculation of basic and diluted net loss per share. Such
calculations reflect the adoption by the Company of Statement of Financial
Accounting Standards No. 128, "Earnings per Share" (FAS 128) for the year
ended December 31, 1997, which requires restatement of all periods presented
in the Company's Consolidated Financial Statements included herein. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Recently Issued Accounting Standards."
(3) Adjusted to reflect the sale of 276,088 shares of Common Stock offered by
the Company hereby at an assumed offering price of $15.50 per share and the
application of the estimated net proceeds therefrom. See "Use of Proceeds"
and "Capitalization."
18
<PAGE> 23
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
"Selected Consolidated Financial Data" and the Consolidated Financial Statements
and Notes thereto included elsewhere in this Prospectus. This Prospectus
contains certain forward-looking statements that involve risks and
uncertainties. The Company's actual results and the timing of certain events
could differ materially from those discussed in the forward-looking statements
as a result of certain factors including those set forth under "Risk Factors"
and elsewhere in this Prospectus.
OVERVIEW
Pegasus is a leading provider of transaction processing services to the
hotel industry worldwide. The Company's THISCO and TravelWeb hotel room
reservation services improve the efficiency and effectiveness of the hotel
reservation process by enabling travel agents and individual travelers to
electronically access hotel room inventory information and conduct reservation
transactions. The Company's HCC service, the global leader in hotel commission
payment processing, improves the efficiency and effectiveness of the commission
payment process for participating hotels and travel agencies by consolidating
payments and providing comprehensive transaction reports. Historically, the
Company has derived a majority of its revenues from its THISCO and HCC services.
For the nine month period ending September 30, 1997, approximately 49.0% of the
Company's consolidated revenues was derived from its electronic hotel
reservation processing services, including 43.4% from the THISCO service and
5.6% from the TravelWeb service, and approximately 51.0% of the Company's
consolidated revenues was derived from its HCC service. The Company has
experienced substantial growth since its inception. Revenues increased at a
compound annual rate of 54.4% to $15.9 million in 1996 from $2.8 million in
1992, excluding 1992 revenues from the HCC service which was acquired in 1995.
However, there can be no assurance that the Company will experience the same
rate of revenue growth in the future. Any significant decrease in the rate of
revenue growth could have a material adverse effect on the Company's financial
condition and results of operations.
Of the hotel customers for the Company's THISCO and HCC services in 1995,
all continued to be customers through the end of 1997. Hotels generally enter
into long-term contracts for the Company's THISCO service that specify minimum
annual transaction and payment commitments.
The Company's revenues are predominantly transaction-based. The Company
derives its revenues from its THISCO service by charging its hotel participants
a fee based on the number of reservations made, less the number canceled ("net
reservations"), and a fee for "status messages" processed through the THISCO
service. Status messages are electronic messages sent by hotels to GDSs to
update room rates, features and availability information in GDS databases. As a
hotel's cumulative volume of net reservations increases during the course of the
calendar year, its fee per transaction decreases after predetermined transaction
volume hurdles have been met. As a result, for higher volume customers, unit
transaction fees are higher at the beginning of the year, when cumulative
transactions are lower. The Company recognizes revenues based on the expected
fee per transaction to be earned for services to be provided to the customer
during the entire year. This process of recognizing revenues results in a
deferred revenue balance being created during early periods of the year, which
will be reflected in interim balance sheets and be fully utilized and eliminated
by the end of each year. Additionally, Pegasus generally charges new
participants in the THISCO service a one-time set-up fee for work associated
with the implementation of the interface with the THISCO service. The Company
also charges certain GDSs a fee based on the number of net reservations to
compensate for the management and consolidation of multiple interfaces. In the
third quarter of 1997, the Company reduced certain of the fees that it charges
hotels for transmitting status messages. See "Risk
Factors -- Competition --Electronic Hotel Room Reservation Processing Service."
Pegasus derives its revenues from its HCC service by charging a
participating travel agency a fee based on a percentage of the dollar amount of
commissions paid to that agency through the HCC service. The Company also
generally charges a participating hotel a fee based on the number of
commissionable transactions arising from that hotel. Revenues from HCC travel
agency fees can vary substantially from period
19
<PAGE> 24
to period based on the fluctuations of the average daily room rates. Pegasus
recognizes revenues from its HCC service in the month in which the hotel stay
occurs and collects and pays commissions to travel agencies by the 15th business
day of the following month. If a hotel fails to deliver funds to the Company,
the Company is not obligated to deliver commission payments on behalf of the
hotel to travel agencies. HCC revenues also include amortization of a $2.0
million payment received by the Company in June 1993 in exchange for a five-year
noncancelable data processing contract. This payment was initially recorded as
unearned income and is being recognized as revenue over the life of the
contract. The amounts recognized in 1996 and for the nine months ended September
30, 1997 were approximately $431,000 and $353,000, respectively. See Note 11 of
Notes to Consolidated Financial Statements.
The Company offers two services, TravelWeb and NetBooker, that provide
hotel reservation capability to individual travelers through the Internet.
During 1996, Pegasus derived the substantial majority of its TravelWeb revenues
from fees related to the creation of Web pages for hotels and for maintaining
these pages on the TravelWeb site. During 1997, the Company transitioned its fee
structure to begin charging participating hotels subscription fees based on the
number of their properties included in the database and booking fees based on
the number of net reservations made at their properties through the TravelWeb
service. The Company is changing the method it uses to calculate booking fees
for the use of its TravelWeb service from a flat fee to a fee based on the rate
of the hotel room reserved. There can be no assurance that the fees generated
from the TravelWeb service will remain at the same or a higher level in the
future. Any significant decrease in the amount of fees received for the
TravelWeb service could have a material adverse effect on the Company's
financial condition and results of operations. The Company also derives revenues
through the sale of advertising space on the TravelWeb site. Pegasus realizes
revenues from NetBooker, the Company's hotel room reservation service provided
to third-party Web sites, by charging third-party Web sites an initial
development and licensing fee and by charging hotels a fee based on the number
of net reservations made through the NetBooker service. The Company has not
received a material amount of revenues for the TravelWeb service or the
NetBooker service to date, and there can be no assurance that either of these
services will produce a material amount of revenues in the future. See "Risk
Factors -- Competition" and "-- Dependence on Growth of Internet Commerce."
The Company has developed or is in the process of developing several new
services, including UltraRes, UltraDirect and Pegasus IQ, to capitalize on its
existing technology and customer base to provide additional electronic hotel
reservation capabilities and information services to existing Pegasus customers
and to other participants in the hotel room distribution process. The Company
intends to derive revenues from UltraRes, a service that automates the
processing of hotel bookings for large meetings and conventions, by charging
participating hotels and meeting organizers transaction-based fees for net
reservations made. The Company intends to derive revenues from UltraDirect, a
service that automates the hotel room reservation process for corporate
travelers, by charging hotels transaction-based fees for net reservations. The
Company has not received any material revenues for any of these services, and
there can be no assurance that any of these services will produce a material
amount of revenues in the future. See "Risk Factors -- Competition" and
"-- Impact of Technological Advances; Delays in Introduction of New Services."
The Company's future success will depend, in part, on its ability to
develop leading technology, enhance its existing services, develop and introduce
new services that address the increasingly sophisticated and varied needs of its
current and prospective customers, and respond to technological advances and
emerging industry standards and practices on a timely and cost-effective basis.
Although the Company strives to be a technological leader, there can be no
assurance that future advances in technology will be beneficial to, or
compatible with, the Company's business or that the Company will be able to
economically incorporate such advances into its business. In addition, keeping
abreast of technological advances in the Company's business may require
substantial expenditures and lead time. To date, the Company has not invested
significantly in the marketing and advertising of its TravelWeb service.
However, the Company anticipates that it will incur substantially higher
marketing costs in the foreseeable future due to the Company's plan to increase
its expenditures on promotional activities in support of its services generally
and in particular for its TravelWeb service. Furthermore, there can be no
assurance that such increased promotional spending will result in additional
TravelWeb revenues. There can also be no assurance that the Company will be
successful in effectively using new technologies, adapting its services to
emerging industry standards or developing,
20
<PAGE> 25
introducing and marketing service enhancements or new services, or that it will
not experience difficulties that could delay or prevent the successful
development, introduction or marketing of these services. If the Company incurs
increased costs or is unable, for technical or other reasons, to develop and
introduce new services or enhancements of existing services in a timely manner
in response to changing market conditions or customer requirements, or if new
services do not achieve market acceptance, the Company's financial condition and
results of operations could be materially adversely affected. See "Risk
Factors -- Impact of Technological Advances; Delays in Introduction of New
Services."
The Company's cost of services consists principally of: (i) personnel costs
relating to information technology; (ii) facilities and equipment maintenance
costs; and (iii) fees paid to Citicorp for the processing of travel agency
commissions. Research and development costs consist principally of personnel
costs, related overhead costs and fees paid to outside consultants. General and
administrative expenses are primarily personnel, office, legal and accounting
related. Marketing and promotion expenses consist primarily of personnel costs,
advertising, public relations and participation in trade shows and other
industry events. Depreciation and amortization expense includes: (i) computer
equipment depreciation; (ii) office furniture, equipment and leasehold
improvement depreciation expense; (iii) amortization of software, including
software acquired as part of the acquisition of HCC; and (iv) goodwill
amortization. Interest expense includes notes payable to certain stockholders of
the Company and payments made under capital equipment leases. Minority interest
represents certain former minority interests in subsidiaries that have been
wholly owned by the Company since June 1996. See Notes 1, 2, 3 and 7 of Notes to
Consolidated Financial Statements.
All costs incurred in the internal development of computer software used in
the delivery of the Company's services are expensed until a product design and a
working model of the software have been tested and completed. Thereafter, any
further development or production costs are capitalized. Maintenance and
customer support costs are expensed as incurred. Prior to 1996, the capitalized
development costs were being amortized over three to five years using the
straight-line method. However, in 1996 the Company changed the estimated life of
all internally and externally developed computer software to three years. The
result of such change in estimated life was to increase net losses for 1996 by
approximately $292,000. See Note 1 of Notes to Consolidated Financial
Statements.
In July 1995, the Company acquired 83.3% of the outstanding capital stock
of HCC in exchange for 2,242,800 shares of the Common Stock for an aggregate
purchase price of $2.7 million, resulting in a $6.5 million excess of purchase
price over net assets acquired. At the time of the acquisition, $1.2 million was
allocated to research and development that had not reached technological
feasibility and had no probable alternative future use, and this amount was
expensed in the quarter ending September 30, 1995. At the time of the
acquisition, $3.5 million was allocated to software which is being amortized
over a three year period ending in June 1998, and the balance of the purchase
price, $1.7 million, was recorded as excess of cost over the fair value of net
assets acquired (goodwill) and is being amortized on a straight line basis
through June 2010. In June 1996, the Company purchased the remaining 16.7% of
outstanding capital stock of HCC in exchange for $2.0 million and 89,733 shares
of Common Stock, resulting in an $833,000 excess of purchase price over net
assets acquired. At the time of the acquisition of this minority interest,
$245,000 was allocated to research and development that had not reached
technological feasibility and had no probable alternative future use, and this
amount was expensed in the quarter ending June 30, 1996. At the time of the
acquisition of the 16.7% interest in June 1996, $469,000 was allocated to
software which is being amortized over a two year period ending in June 1998 to
correspond to the amortization period of the software relating to the
acquisition that occurred in July 1995, and the balance of the purchase price,
$119,000, was recorded as excess of cost over the fair value of net assets
acquired (goodwill) and is being amortized on a straight line basis through June
2010 to correspond to the amortization period of the goodwill relating to the
acquisition that occurred in July 1995. See Notes 1, 2 and 3 of Notes to
Consolidated Financial Statements.
The Company has recorded unearned compensation and compensation expense for
the difference between the exercise price and the deemed fair value of the
Company's Common Stock with respect to 503,333 shares issuable upon exercise of
options granted in 1996. These amounts are initially recorded as unearned
compensation and amortized to cost of services and general and administrative
expense over the vesting periods of the options, generally four years. Unearned
compensation amortized to expense in 1996 was
21
<PAGE> 26
approximately $65,000. Amortization of unearned compensation will adversely
affect the Company's reported operating results through the third quarter of
2000. See Note 9 of Notes to Consolidated Financial Statements.
As of December 31, 1996, the Company had net operating loss carryforwards
for federal income tax purposes of approximately $14.6 million, which expire in
various years beginning in 2003. The net deferred tax asset is fully reserved
because of uncertainty regarding its realizability. See Note 10 of Notes to
Consolidated Financial Statements.
In connection with its efforts to continue its growth, in both its
traditional and recently introduced service offerings, the Company anticipates
significantly increasing the size of its information technology and sales and
marketing organizations. Because certain of the costs related to the
introduction of such new service offerings are largely fixed in nature, and as a
result of spending on development and marketing of such new service offerings,
the Company has not realized in the past, and anticipates that it will not
realize in the foreseeable future, gross margins on the provision of such
recently introduced services comparable to the gross margins it realizes on its
THISCO and HCC service offerings. Such lower gross margin contribution from
newly introduced service offerings and the associated marketing and development
expenses have been significant components of the losses incurred by the Company
and are expected to continue to have a detrimental effect on the Company's
operating results for the foreseeable future. The Company has experienced
substantial net losses, including a net loss of $3.5 million in 1996, and had an
accumulated deficit of approximately $14.6 million as of September 30, 1997. The
Company anticipates that its operating expenses will increase substantially in
the foreseeable future as it continues the development of its services,
increases its sales and marketing activities and expands its distribution
channels. To achieve profitability, the Company must successfully implement its
business strategy and increase its revenues while controlling expenses. There
can be no assurance as to when or if the Company will achieve sustainable
profitability. There also can be no assurance that if the Company continues to
expand, management will be effective in attracting and retaining additional
qualified personnel, expanding the Company's physical facilities or otherwise
managing growth. In addition, there can be no assurance that the Company's
systems, procedures or controls will be adequate to support any expansion of the
Company's operations. The Company's inability to manage growth effectively could
have a material adverse effect on the Company's financial condition and results
of operations. See "Risk Factors -- Substantial Net Losses," "-- Risks
Associated with Management of Growth" and "-- Dependence on Key Personnel."
All statements contained in this Prospectus other than statements of
historical fact, including statements in this "Management's Discussion and
Analysis of Financial Condition and Results of Operations" concerning the
Company's financial position and liquidity, results of operations, prospects for
continued growth, ability to maintain or improve transaction volumes, net sales
or profit margins and other matters are forward-looking statements. Although the
Company believes that the expectations reflected in such forward-looking
statements are reasonable, no assurance can be given that such expectations will
prove correct. Factors that could cause the Company's results to differ
materially from the results discussed in or contemplated by such forward-looking
statements include the risks described under "Risk Factors," including without
limitation substantial net losses, competition, dependence on the hotel
industry, consolidation trends, fluctuations in quarterly operating results,
potential adverse changes in hotel commission payments, control by existing
stockholders, conflicts of interest, dependence on growth of Internet commerce,
system interruption and security risks, impact of technological advances, delays
in introduction of new services, dependence on key customers and third-party
service arrangements, government regulation, management of growth, international
expansion and operations, dependence on key personnel, dependence on proprietary
technology, infringement, potential acquisitions, year 2000 compliance,
management's discretion as to use of unallocated net proceeds, future capital
needs, uncertainty of additional financing, shares eligible for future sale,
anti-takeover matters and potential volatility of stock price. All
forward-looking statements in this Prospectus are expressly qualified in their
entirety by the cautionary statements in this paragraph, in "Risk Factors" and
elsewhere in this Prospectus.
22
<PAGE> 27
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the percentage
relationship of certain items from the Company's statement of operations to net
revenues:
<TABLE>
<CAPTION>
PERCENTAGE OF NET REVENUES
-----------------------------------------
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
----------------------- --------------
1994 1995 1996 1996 1997
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Net revenues............................... 100.0% 100.0% 100.0% 100.0% 100.0%
Operating expenses:
Cost of services......................... 33.1 41.8 39.1 39.8 35.9
Research and development................. 5.1 9.0 12.4 11.4 11.9
Write-off of purchased in-process
research and development.............. -- 13.2 1.5 2.1 --
General and administrative expenses...... 22.8 29.8 23.9 23.1 17.1
Marketing and promotion expenses......... 2.8 9.8 17.8 16.8 19.6
Depreciation and amortization............ 32.6 26.6 21.6 22.1 15.1
----- ----- ----- ----- -----
Total operating expenses......... 96.4 130.2 116.3 115.3 99.6
----- ----- ----- ----- -----
Operating income (loss).................... 3.6 (30.2) (16.3) (15.3) 0.4
Other (income) expense:
Interest expense......................... 12.7 8.8 5.6 5.3 3.6
Interest income.......................... -- -- (0.7) (0.5) (2.9)
----- ----- ----- ----- -----
Loss before income taxes and minority
interest................................. (9.1) (39.0) (21.2) (20.1) (0.3)
Income taxes............................... -- -- 0.1 -- 0.2
----- ----- ----- ----- -----
Loss before minority interest.............. (9.1) (39.0) (21.3) (20.1) (0.5)
Minority interest.......................... -- 0.6 (0.7) (0.9) --
----- ----- ----- ----- -----
Net loss................................... (9.1)% (38.4)% (22.0)% (21.0)% (0.5)%
===== ===== ===== ===== =====
</TABLE>
RECENT OPERATING RESULTS
The Company's net revenues increased by $1.6 million, or 38.7%, to $5.7
million in the three months ended December 31, 1997 from $4.1 million in the
three months ended December 31, 1996. Net revenues increased as a result of
growth in transactions for all of the Company's services. Net income in the
three months ended December 31, 1997 was $659,000 compared to a net loss of $1.0
million in the three months ended December 31, 1996. Diluted net income per
share in the three months ended December 31, 1997 was $0.06 based on 10.9
million weighted average shares outstanding. This compares with a diluted net
loss per share of $0.19 in the three months ended December 31, 1996 based on 5.3
million weighted average shares outstanding.
The Company's net revenues increased by $5.0 million, or 31.7%, to $20.9
million in the twelve months ended December 31, 1997 from $15.9 million in the
twelve months ended December 31, 1996. Net revenues increased as a result of
growth in transactions for all of the Company's services. Net income in the
twelve months ended December 31, 1997 was $589,000 compared to a net loss of
$3.5 million in the twelve months ended December 31, 1996. Diluted net income
per share in the twelve months ended December 31, 1997 was $0.07 based on 8.7
million weighted average shares outstanding. This compares with a diluted net
loss per share of $0.66 in the twelve months ended December 31, 1996 based on
5.2 million weighted average shares outstanding.
For the twelve months ended December 31, 1997, net cash provided by
operating activities amounted to $2.8 million. The Company's principal sources
of liquidity at December 31, 1997 included cash and cash equivalents of $30.2
million, short term investments of $9.4 million and restricted cash of $1.3
million, which restricted cash amount represents funds for travel agency
commission checks that have not cleared HCC's
23
<PAGE> 28
processing bank and are returned to HCC. Any such amounts which are not remitted
to travel agencies will be escheated to the appropriate state, as required.
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997
Net revenues. The Company's revenues for the nine months ended September
30, 1997 increased to $15.2 million from $11.8 million for the nine months ended
September 30, 1996, an increase of 29.3%. This increase in revenues was
primarily driven by higher transactions levels for all of the Company's services
including THISCO, HCC and TravelWeb.
THISCO revenues increased as a result of a 25.8% increase in net
reservations made in the nine months ended September 30, 1997 as compared to the
nine months ended September 30, 1996. HCC revenues grew as a result of a 31.6%
increase in hotel commission transactions processed during the nine months ended
September 30, 1997 as compared to the nine months ended September 30, 1996, due
in part to the addition of hotel properties, including those of Marriott
International, Inc., and travel agencies participating in the HCC service. The
net revenues to the Company per commissionable transaction increased in the nine
months ended September 30, 1997 because of an increase in overall hotel average
daily rates. Revenues contributed by the TravelWeb service decreased by 18.0% in
the nine months ended September 30, 1997 as compared to the nine months ended
September 30, 1996. This decline resulted primarily from the Company's
decreasing reliance on page building and set-up fees.
Cost of services. Cost of services increased by $786,000, or 16.8%, to $5.5
million in the nine months ended September 30, 1997 from $4.7 million in the
nine months ended September 30, 1996. Cost of services increased due to
additional staffing and the increased number of transactions processed through
the HCC service.
Research and development; Write-off of purchased in-process research and
development. Research and development expenses increased $227,000, or 14.3%, to
$1.8 million in the nine months ended September 30, 1997 from $1.6 million in
the nine months ended September 30, 1996. After eliminating the effect of the
one-time charges taken in the nine months ended September 30, 1996 for research
and development expenses relating to the acquisition of HCC, research and
development expenses increased $472,000, or 29.7%, to $1.8 million in the nine
months ended September 30, 1997. This increase was primarily due to additional
development of the TravelWeb service.
General and administrative expenses. General and administrative expenses
decreased $114,000, or 4.2%, to $2.6 million in the nine months ended September
30, 1997 from $2.7 million in the nine months ended September 30, 1996. This
decrease was primarily due to a number of non-recurring expenses incurred in
1996 associated with the closing of a financing transaction.
Marketing and promotion expenses. Marketing and promotion expenses
increased $1.0 million, or 50.6%, to $3.0 million in the nine months ended
September 30, 1997 from $2.0 million in the nine months ended September 30,
1996. Marketing and promotion expenses grew primarily due to the addition of
Sales and Marketing staff, the promotion of the TravelWeb service and to a
lesser degree the promotion of the THISCO and HCC services.
Depreciation and amortization. Depreciation and amortization expenses
decreased $311,000, or 12.0%, to $2.3 million in the nine months ended September
30, 1997 from $2.6 million in the nine months ended September 30, 1996. This
decrease was primarily due to the completion in 1996 of the amortization of
certain previously capitalized software.
Interest expense. Interest expense decreased $78,000, or 12.5%, to $544,000
in the nine months ended September 30, 1997. The expense reflects interest
accrued on promissory notes payable to certain shareholders of the Company and
payments made under capital equipment leases. The Company repaid all of these
promissory notes in August 1997 using some of the proceeds from its initial
public offering of common stock.
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<PAGE> 29
Interest income. During the nine months ended September 30, 1997 the
Company realized $442,000 in interest income as a result of short term
investment of operating cash balances, including the proceeds of its initial
public offering of common stock in August.
Income taxes. Income taxes reflect foreign income taxes payable with
respect to the taxable earnings of the Company's United Kingdom subsidiary,
which reports earnings on a cost-plus basis. Currently, the United Kingdom
office reports taxable earnings equal to 10.0% of the total operating cost of
the office.
YEARS ENDED DECEMBER 31, 1995 AND 1996
Net revenues. Net revenues increased by $6.6 million, or 70.7%, to $15.9
million in 1996 from $9.3 million in 1995. THISCO revenues increased as a result
of a 27.0% increase in net reservations made in 1996 as compared to 1995.
Additionally, the average fee paid by hotels using the THISCO service increased
during 1996 as a result of an increase in total status messages processed. HCC
revenues grew as a result of the acquisition by the Company of HCC in July 1995
and the subsequent growth in hotel commission transactions processed due, in
part, to the addition of hotel properties and travel agencies participating in
the HCC service. The net revenues to the Company per commissionable transaction
increased in 1996 because of a change in the hotel customer mix and an increase
in overall hotel average daily rates. To the extent that the total volume of
commissions processed by the HCC service increases, the average ratio of net
revenue to total commissions collected will decrease. Revenues contributed by
the TravelWeb service increased 57.6% in 1996 as compared to 1995, which
resulted primarily from amounts charged to hotels for Web page building and
maintenance fees and less significantly from advertising and promotions and from
fees charged to hotels for net reservations processed through the TravelWeb
service. In 1997, Pegasus transitioned its hotels participating in the TravelWeb
service to a subscription fee arrangement, whereby, in addition to paying fees
for net reservations made through this service, participating hotels will remit
monthly fees per property listing in the TravelWeb service. See "-- Overview."
Cost of services. Cost of services increased $2.3 million, or 59.7%, to
$6.2 million in 1996 from $3.9 million in 1995. This increase was due to the
acquisition by the Company of HCC in July 1995 and operating expenses for
TravelWeb, including expenses for contract Web site page building, software
development and the employment of additional technical personnel.
Research and development; Write-off of purchased in-process research and
development. Research and development expenses increased $143,000, or 6.9%, to
$2.2 million in 1996 from $2.1 million in 1995. After eliminating the effect of
the one-time charges taken in 1995 and 1996 for research and development
expenses relating to the acquisition of HCC, research and development expenses
increased $1.2 million, or 133%, to $2.0 million in 1996 from $840,000 in 1995.
This increase was due to increased development expenses primarily related to
TravelWeb.
General and administrative expenses. General and administrative expenses
increased $1.0 million, or 37.1%, to $3.8 million in 1996 from $2.8 million in
1995. This increase was due to greater office-related costs, personnel costs,
legal and accounting fees and travel-related costs.
Marketing and promotion expenses. Marketing and promotion expenses
increased $1.9 million, or 209.6%, to $2.8 million in 1996 from $912,000 in
1995. As a percentage of net revenues, marketing and promotion expense increased
to 17.8% in 1996 from 9.8% in 1995. Marketing and promotion expenses grew
primarily due to the promotion of the TravelWeb service and to a lesser degree
the promotion of the THISCO and HCC services.
Depreciation and amortization. Depreciation and amortization expenses
increased $949,000, or 38.3%, to $3.4 million in 1996 from $2.5 million in 1995.
In 1996, the Company changed the estimated life of capitalized software from
five years to three years. The effect of this change was to increase
depreciation by $292,000 in 1996. Also, in 1996 the Company recognized a full
year of amortization of software and goodwill relating to the Company's
acquisition in July 1995 of 83.3% of the outstanding capital stock of HCC and
began to amortize software and goodwill that resulted from the purchase by the
Company in June 1996 of the remaining 16.7% of the outstanding capital stock of
HCC.
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<PAGE> 30
Interest expense. Interest expense increased $77,000, or 9.5%, to $893,000
in 1996 from $816,000 in 1995. The expense includes interest accrued on
promissory notes payable to certain stockholders of the Company and payments
made under capital equipment leases.
Interest income. During 1996, the Company realized $114,000 in interest
income as a result of short term investments of operating cash balances on the
proceeds from the sale of shares of the Company's Series A Preferred Stock in
June 1996.
Income taxes. Income taxes reflect foreign income taxes payable with
respect to the taxable earnings of the Company's United Kingdom subsidiary,
which reports earnings on a cost-plus basis. Currently, the United Kingdom
office reports taxable earnings equal to 10.0% of the total operating cost of
the office.
YEARS ENDED DECEMBER 31, 1994 AND 1995
Net revenues. Net revenues increased $4.6 million, or 99.2%, to $9.3
million in 1995 from $4.7 million in 1994. This increase was due in part to the
acquisition by the Company of HCC in July 1995 and its subsequent growth and to
the growth in the THISCO service. Revenues from the THISCO service increased
approximately 15.5% primarily as a result of growth in net reservations, which
was due to increased use of the service by the Company's existing customer base
and the addition of new customers. During 1995, the average fee paid per THISCO
transaction by hotels decreased as a result of a 15% reduction (effective July
1, 1994) in net reservation fees charged to hotels. Revenues for the TravelWeb
service increased primarily as a result of Web page building and maintenance
fees charged to hotels in connection with the commencement of the TravelWeb
service in July 1994.
Cost of services. Cost of services increased $2.4 million, or 151.1%, to
$3.9 million in 1995 from $1.5 million in 1994. Operating expense as a
percentage of sales increased to 41.8% in 1995 from 33.1% in 1994. This increase
was due to the acquisition by the Company of HCC in July 1995 greater personnel
costs from the growth in the number of technical personnel employed by Pegasus,
costs incurred in connection with an upgrade of hardware used in the Company's
UltraSwitch technology, expenses incurred with respect to Web page building and
costs related to the acquisition by the Company of HCC and other organizational
matters. See Note 2 of Notes to Consolidated Financial Statements.
Research and development; Write-off of purchased in-process research and
development. Research and development expenses increased $1.8 million, or
766.2%, to $2.1 million in 1995 from $238,000 in 1994. This increase was due to
a $1.2 million write-off of in-process research and development related to the
Company's acquisition of 83.3% of the outstanding capital stock of HCC and to
THISCO, TravelWeb and HCC software development.
General and administrative expenses. General and administrative expenses
increased $1.7 million, or 160.1%, to $2.8 million in 1995 from $1.1 million in
1994. This increase was due to acquisition by the Company of HCC and other
organizational matters, higher office costs and greater personnel costs arising
from increases in number of personnel.
Marketing and promotion expenses. Marketing and promotion expenses
increased $782,000, or 599.2%, to $912,000 in 1995 from $130,000 in 1994.
Marketing and promotion expenses grew primarily due to the promotion of the
TravelWeb service.
Depreciation and amortization. Depreciation and amortization increased
$958,000, or 63.1%, to $2.5 million in 1995 from $1.5 million in 1994. As a
percentage of sales, depreciation and amortization decreased to 26.6% in 1995
from 32.6% in 1994. The increase in depreciation and amortization is related to
new hardware purchased for the Company's UltraSwitch technology in 1995 and
amortization of software and goodwill related to the Company's acquisition of
83.3% of the outstanding capital stock of HCC in 1995.
Interest expense. Interest expense increased $225,000, or 38.0%, to
$816,000 in 1995 from $591,000 in 1994. Interest expense includes interest
accrued on certain promissory notes payable to stockholders of the Company and
payments made under capital equipment leases. The increase in interest expense
was primarily related to the new hardware purchased for the Company's
UltraSwitch technology, which was financed through a lease in 1995.
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<PAGE> 31
SELECTED QUARTERLY RESULTS OF OPERATIONS
The following table sets forth certain unaudited statement of operations
data for each of the Company's last eight quarters ended September 30, 1997, as
well as such data expressed as a percentage of the Company's total net revenues
for the periods indicated. This data has been derived from the Company's
unaudited financial statements that, in management's opinion, include all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of such information when read in conjunction with the audited
Consolidated Financial Statements of the Company and the Notes thereto appearing
elsewhere in this Prospectus. The Company believes that quarter-to-quarter
comparisons of its financial results are not necessarily meaningful and should
not be relied upon as any indication of future performance. See "Risk
Factors -- Fluctuations in Quarterly Operating Results."
<TABLE>
<CAPTION>
QUARTER ENDED
---------------------------------------------------------------------------------------
DEC. 31, MAR. 31, JUNE 30, SEPT. 30, DEC. 31, MAR. 31, JUNE 30, SEPT. 30,
1995 1996 1996 1996 1996 1997 1997 1997
-------- -------- -------- --------- -------- -------- -------- ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenues............................ $ 3,337 $3,803 $ 4,005 $ 3,976 $ 4,085 $4,377 $ 5,081 $5,778
Operating expenses:
Cost of services...................... 1,644 1,638 1,483 1,564 1,514 1,558 1,799 2,114
Research and development.............. 243 627 320 399 615 623 609 586
Write-off of purchased in-process
research and development............ -- -- 245 -- -- -- -- --
General and administrative expenses... 1,008 692 1,120 913 1,074 856 816 939
Marketing and promotion expenses...... 387 644 693 647 840 865 1,053 1,068
Depreciation and amortization......... 849 909 924 769 824 707 721 863
------- ------ ------- ------- ------- ------ ------- ------
Total operating expenses........ 4,131 4,510 4,785 4,292 4,867 4,609 4,998 5,570
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) from operations........... (794) (707) (780) (316) (782) (232) 83 208
Other (income) expense:
Interest expense...................... 218 212 188 221 272 212 203 128
Interest income....................... -- -- (4) (55) (55) (56) (43) (342)
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) before income taxes and
minority interest..................... (1,012) (919) (964) (482) (999) (388) (77) 422
Income taxes............................ -- -- -- -- 15 -- 16 10
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) before minority
interest.............................. (1,012) (919) (964) (482) (1,014) (388) (93) 412
Minority interest....................... (11) (48) (58) -- -- -- -- --
------- ------ ------- ------- ------- ------ ------- ------
Net income (loss)....................... $(1,023) $ (967) $(1,022) $ (482) $(1,014) $ (388) $ (93) $ 412
======= ====== ======= ======= ======= ====== ======= ======
Basic net income (loss) per share....... $ (0.20) $(0.19) $ (0.20) $ (0.09) $ (0.19) $(0.07) $ (0.02) $ 0.05
======= ====== ======= ======= ======= ====== ======= ======
Weighted average shares used in the
basic net income (loss) per share
calculation........................... 5,218 5,218 5,204 5,282 5,282 5,191 5,191 8,173
Diluted net income (loss) per share..... $ (0.20) $(0.19) $ (0.20) $ (0.09) $ (0.19) $(0.07) $ (0.02) $ 0.04
======= ====== ======= ======= ======= ====== ======= ======
Weighted average shares used in the
diluted net income (loss) per share
calculation........................... 5,218 5,218 5,204 5,282 5,282 5,191 5,191 9,380
</TABLE>
<TABLE>
<CAPTION>
Percentage of Net Revenues
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenues............................ 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Operating expenses:
Cost of services...................... 49.3 43.1 37.0 39.3 37.0 35.6 35.4 36.6
Research and development.............. 7.3 16.5 8.0 10.0 15.0 14.2 12.0 10.1
Write-off of purchased in-process
research and development............ -- -- 6.1 -- -- -- -- --
General and administrative expenses... 30.2 18.2 28.0 23.0 26.3 19.6 16.1 16.3
Marketing and promotion expenses...... 11.6 16.9 17.3 16.3 20.6 19.8 20.7 18.5
Depreciation and amortization......... 25.4 23.9 23.1 19.3 20.2 16.1 14.2 14.9
------- ------ ------- ------- ------- ------ ------- ------
Total operating expenses........ 123.8 118.6 119.5 107.9 119.1 105.3 98.4 96.4
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) from operations........... (23.8) (18.6) (19.5) (7.9) (19.1) (5.3) 1.6 3.6
Other (income) expense:
Interest expense...................... 6.5 5.6 4.7 5.6 6.7 4.8 4.0 2.2
Interest income....................... -- -- (0.1) (1.4) (1.3) (1.2) (0.9) (5.9)
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) before income taxes and
minority interest..................... (30.3) (24.2) (24.1) (12.1) (24.5) (8.9) (1.5) 7.3
Income taxes............................ -- -- -- -- 0.3 -- 0.3 0.2
------- ------ ------- ------- ------- ------ ------- ------
Income (loss) before minority
interest.............................. (30.3) (24.2) (24.1) (12.1) (24.8) (8.9) (1.8) 7.1
Minority interest....................... (0.3) (1.2) (1.4) -- -- -- -- --
------- ------ ------- ------- ------- ------ ------- ------
Net income (loss)....................... (30.6)% (25.4)% (25.5)% (12.1)% (24.8)% (8.9)% (1.8)% 7.1%
======= ====== ======= ======= ======= ====== ======= ======
</TABLE>
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<PAGE> 32
The Company does not believe that inflation has materially impacted results
of operations during the past three years. Substantial increases in costs and
expenses could have a significant impact on the Company's results of operations
to the extent such increases are not passed along to customers.
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed its cash requirements for operations and
investments in equipment primarily through sales of capital stock, borrowings
from shareholders and capital lease financing.
Cash provided by operating activities was $1.4 million for the nine months
ended September 30, 1997 compared to $182,000 for the same period in 1996 due to
the Company's improved operating performance.
The Company completed an initial public offering of its Common Stock in
August 1997, raising proceeds, net of offering expenses, of approximately $40.5
million. Approximately $5.2 million of these proceeds were used to repay notes
payable and accrued interest to shareholders and to repay certain lease
obligations. The remainder of the proceeds have been invested in short-term
marketable securities.
Net cash used in investing activities for the purchase and sale of
software, furniture, and equipment amounted to $819,000 in the nine months ended
September 30, 1997 compared to $268,000 for the same period in 1996. The Company
has acquired equipment under capital leases of $79,000 for the nine months ended
September 30, 1997 compared to $707,000 for the nine months ended September 30,
1996.
The Company's principal sources of liquidity at September 30, 1997 included
cash and cash equivalents of $39.2 million, together with restricted cash of
$1.2 million which represents funds for travel agency commission checks that
have not cleared HCC's processing bank and are returned to HCC. Any of such
restricted cash amount which is not remitted to travel agents will be escheated
to the appropriate state, as required.
The Company believes that the net proceeds from this offering, along with
current cash and cash equivalents, will be sufficient to fund its working
capital and capital expenditure requirements for at least the next 12 months.
Thereafter, if cash generated from operations is insufficient to satisfy the
Company's liquidity requirements, the Company may seek to issue additional
equity or debt securities or establish a credit facility. The issuance of
additional equity or convertible debt securities could result in additional
dilution to the Company's stockholders. There can be no assurance that financing
will be available to the Company in amounts or on terms acceptable to the
Company. Although the Company has no material commitments for capital
expenditures, it anticipates purchasing approximately $1.5 million of property
and equipment in 1998, primarily for computer equipment, furniture and fixtures.
Some portion of these capital expenditures may be financed through capital
leases. See "Risk Factors -- Future Capital Needs; Uncertainty of Additional
Financing."
RECENTLY ISSUED ACCOUNTING STANDARDS
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" (FAS 123), encourages, but does not require, companies
to record compensation cost for stock-based employee compensation plans at fair
value. The Company has elected to continue to account for stock-based
compensation using the intrinsic value method prescribed in Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" (APB
25), and related Interpretations. Accordingly, compensation cost for stock
options is measured as the excess, if any, of the fair market value of the
Company's stock at the date of the grant over the amount the employee must pay
to acquire the stock.
In February 1997, Statement of Financial Accounting Standards No. 128,
"Earnings per Share" (FAS 128), was issued. FAS 128 specifies the computation,
presentation and disclosure requirements for earnings per share ("EPS") for
entities with publicly held common stock or potential common stock. FAS 128
simplifies the standards for computing EPS previously found in Accounting
Principles Board Opinion No. 15, "Earnings per Share" (APB 15), and makes them
comparable to international EPS standards. It replaces the presentation of
primary EPS with a presentation of basic EPS. It also requires dual presentation
of basic and diluted EPS on the face of the statement of operations for all
entities with complex capital structures and
28
<PAGE> 33
requires a reconciliation of the numerator and denominator of the basic EPS
computation to the numerator and denominator of the diluted EPS computation. FAS
128 is effective for financial statements issued for periods ending after
December 15, 1997, including interim periods; earlier application is not
permitted. FAS 128 requires restatement of all prior-period EPS data presented.
The Company adopted FAS 128 as of and for the year ended December 31, 1997.
In June 1997, Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" (FAS 130) was issued. FAS 130 establishes
standards for reporting and display of comprehensive income and its components
(revenues, expenses, gains, and losses) in a full set of general-purpose
financial statements. It requires all items that are required to be recognized
under accounting standards as components of comprehensive income be reported in
a financial statement that is displayed with the same prominence as other
financial statements. FAS 130 is effective for fiscal years beginning after
December 15, 1997. The Company will adopt this Statement in the year ending
December 31, 1998. Reclassification of financial statements for earlier periods
provided for comparative purposes is required upon adoption.
In June 1997, Statement of Financial Accounting Standards No. 131,
"Disclosure About Segments of an Enterprise and Related Information" (FAS 131)
was issued. FAS 131 establishes standards for the way that public business
enterprises report information about operating segments in annual financial
statements and requires that those enterprises report selected information about
operating segments in interim financial reports issued to shareholders. FAS 131
is effective for financial statements for periods beginning after December 15,
1997. The Company will adopt FAS 131 in the year ending December 31, 1998.
29
<PAGE> 34
BUSINESS
OVERVIEW
Pegasus is a leading provider of transaction processing services to the
hotel industry worldwide. The Company's THISCO and TravelWeb hotel room
reservation services improve the efficiency and effectiveness of the hotel
reservation process by enabling travel agents and individual travelers to
electronically access hotel room inventory information and conduct reservation
transactions. The Company's HCC service, the global leader in hotel commission
payment processing, improves the efficiency and effectiveness of the commission
payment process for participating hotels and travel agencies by consolidating
payments and providing comprehensive transaction reports. In addition, the
Company is developing an information service to provide hotel industry
participants with transaction specific information on industry trends and guest
behavior. The Company's services benefit many of the participants in the hotel
room distribution process, including hotels, hotel representation firms, Global
Distribution Systems ("GDSs"), travel agencies, convention and other large
meeting organizers, corporate travel departments and Web sites with
travel-related features. For the nine months ending September 30, 1997,
approximately 49.0% of the Company's consolidated revenues was derived from its
electronic hotel reservation processing services, including 43.4% from the
THISCO service and 5.6% from the TravelWeb service, and approximately 51.0% of
the Company's consolidated revenues was derived from its HCC service.
The Company's electronic interface business for hotel room reservations was
established in 1989 by 16 leading hotel and travel-related companies to address
the need for a neutral, reliable third-party source of hotel reservation
information and transaction processing services. The Company's commission
processing business was founded by substantially the same stockholder group in
1991. Today, the Company's stockholders include 10 of the 15 leading hotel
chains in the world based on 1996 total revenues. The Company's strategic
position as a gateway in the hotel room distribution chain, transaction
processing capabilities and reputation for reliability and neutrality enable it
to offer a range of services delivering industry-wide benefits that would be
difficult for any of the participants to achieve individually. Over the past
several years, the Company has expanded its services to include virtually all
electronic distribution channels through which hotel room reservations are made.
Over 25,000 hotel properties worldwide, including those of 13 of the 15
leading hotel chains in the world based on 1996 total revenues, currently
participate in the Company's THISCO service. The number of net reservations
booked through the THISCO service has increased to approximately 17.5 million in
1997 from 1.1 million in 1990.
TravelWeb provides individual travelers direct access to more than 58,000
dynamically served pages of online hotel information and the ability to make
reservations at approximately 15,000 hotel properties in 140 countries. The
Company's NetBooker service offers operators of third-party Web sites, including
operators such as Preview Travel and Microsoft Expedia, the same comprehensive
information contained on TravelWeb and a simple and fast method of making a
hotel reservation online. During the three months ended December 31, 1997,
approximately 82,000 net reservations for hotel rooms were made using the
Company's TravelWeb and NetBooker services.
The THISCO and TravelWeb services utilize the Company's UltraSwitch
technology. This technology can facilitate the distribution of hotel rooms
through virtually all of the automated distribution channels by offering hotels
a single, seamless electronic interface to:
- over 120,000 travel agencies through all of the leading GDSs;
- individual travelers directly through the Internet;
- third-party Web sites;
- convention and other large meeting organizers; and
- corporate travel departments through travel management software and
service providers.
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<PAGE> 35
Pegasus provides the HCC commission processing service to over 66,000
travel agencies and 14,000 hotel properties worldwide. In 1996, the Company
processed over $111.7 million in gross commission payments, an increase of 49.9%
as compared to 1995, including commission payments processed in 1995 prior to
the acquisition of HCC by Pegasus.
The Company charges for its services generally on a per-transaction or
commission basis. The Company has increased its revenue at a compound annual
growth rate of 54.4% to $15.9 million in 1996 from $2.8 million in 1992,
excluding 1992 revenues from the HCC service which was acquired in 1995. The
Company's revenues for the nine months ended September 30, 1997 were $15.2
million. The revenue growth has reflected growth in the THISCO service, the
introduction of the TravelWeb service and the acquisition and growth of the HCC
service. The revenue growth in the THISCO service reflects the increasing number
of participating hotels and travel agencies that made reservations through the
THISCO service, the shift from manual to electronic hotel reservations and the
overall health of the hotel industry. The revenue growth in the HCC service
principally reflects growth in the dollar amount of hotel commission payments
processed by the Company as a result of an increase in the number of hotels and
travel agencies using the HCC service and higher average daily hotel room rates.
The Company believes it has numerous opportunities to continue its growth,
including: (i) adding members of the hotel and travel agency industries as
customers, in particular internationally where the Company's market share is
lower; (ii) addressing certain of the emerging electronic distribution channels
for hotel rooms; (iii) providing customers access to comprehensive hotel
industry information and (iv) pursuing strategic relationships and acquisition
opportunities.
RECENT DEVELOPMENTS
In January 1998, the Company entered into an agreement with Hilton under
which Hilton, currently a customer of the Company's THISCO and TravelWeb
services, also will become a customer of the Company's HCC service, commencing
in the second quarter of 1998.
The Company recently announced its financial results for the period ended
December 31, 1997. For the three month period ended December 31, 1997, the
Company's net revenues increased 38.7% over the same period in the prior year to
$5.7 million. Net income in the three months ended December 31, 1997 was
$659,000. Diluted net income per share in this period was $0.06 based on 10.9
million weighted average shares outstanding. For the twelve months ended
December 31, 1997, the Company's net revenues increased 31.7% over the prior
twelve month period to $20.9 million. Net income in the twelve months ended
December 31, 1997 was $589,000. Diluted net income per share in this period was
$0.07 based on 8.7 million weighted average shares outstanding.
INDUSTRY BACKGROUND
The operations of the global hotel industry include a wide variety of
participants and a series of complex information and transaction flows.
According to the International Hotel Association, the global hotel industry
generated $247 billion in revenues in 1994. The Company believes that costs
associated with reserving and distributing hotel rooms, including commissions
paid to intermediaries, such as travel agencies and GDSs, hotel
reservation-related staffing costs and reservation system information technology
expenses, represent a significant proportion of total operating costs. The
Company's services simplify room reservation information and transaction flows,
thereby reducing the distribution costs of rooms for the hotel industry. The
Company believes that revenues derived from electronically booked hotel
reservations will grow at a higher rate than overall hotel industry revenues, as
a greater number of hotels, travel agencies and individual travelers acquire
electronic booking capabilities.
The room reservation and commission payment processes in the hotel industry
are complex and information intensive. Making a hotel room reservation requires
significant amounts of data, such as room rates, features and availability. This
complexity is compounded by the need to confirm, revise or cancel room
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<PAGE> 36
reservations, which generally requires multiple parties to have ongoing access
to real-time reservation information. Similarly, the process of reconciling and
paying hotel commissions to travel agencies is based on transaction-specific
hotel data and consists of a number of relatively small payments to travel
agencies, often including payments in multiple currencies. In addition,
information regarding guest cancelations and "no-shows" needs to be accurately
communicated between hotels and travel agencies in order to reconcile commission
payments.
Reservations for hotel rooms are made either directly by individual
travelers or indirectly through intermediaries. Individual travelers typically
make direct reservations by telephoning or faxing a hotel to ascertain room
rates, features and availability and to make reservations. Increasingly,
individual travelers can conduct all aspects of this transaction through hotel
and travel-related Web sites. Intermediaries for hotel room reservations,
including travel agencies, convention and other large meeting organizers and
corporate travel departments, access hotel information either by telephone or
fax or through a GDS such as SABRE, Galileo, System One or Worldspan. GDSs are
global electronic travel information and reservation systems that, among other
things, maintain databases of room rate, feature and availability information
provided by hotels to which they are connected. Because each GDS has a unique
electronic interface to hotel reservation systems, each GDS can obtain room
information and book rooms only at hotels that have developed protocols and
message formats compatible with that particular GDS.
A number of current trends are affecting the hotel industry. First, the
hotel industry has been shifting from manual to electronic means of making hotel
room reservations. According to a survey done for the Hotel Electronic
Distribution Network Association ("HEDNA") by Hospitality Technology Consulting,
30 million hotel room reservations were made electronically through GDSs in
1996. As more hotels become electronically bookable, the Company expects that
electronic hotel room reservations will grow substantially in the United States
and internationally over the next several years. Second, a small but growing
number of individual travelers are making hotel room reservations electronically
on the Internet. Third, smaller hotel chains and independent hotels increasingly
have affiliated with large hotel chains through a process known in the industry
as "branding" or "reflagging." This global consolidation process produces
economies of scale and increases the global penetration of larger hotel chains,
many of whom are the Company's stockholders and customers. Fourth, hotel
commissions are becoming increasingly important to travel agencies as a source
of revenue. Travel agencies are looking to increase their revenue by making more
hotel room reservations to offset the effects of increased competition among
travel agencies, new competition from emerging travel service distribution
channels and caps on commissions for airline reservations, which historically
have been the leading revenue source for travel agencies.
Because of the information-intensive and complex nature of the hotel room
reservation and commission payment processes, the Company believes a substantial
opportunity exists for an intermediary that can provide services to manage hotel
industry information and transaction flows among multiple parties. Effective,
neutral, third-party management of information and transaction flows improves
the ability of all participants in the hotel room distribution process to
conduct business on a seamless and automated basis by providing efficient and
real-time access to hotel information. To be effective in addressing the hotel
industry's needs, the provider of such services must have: (i) an in-depth
understanding of the business processes of participants involved in the
distribution of hotel rooms; (ii) a reputation for reliability and trusted
neutrality in the industry to bring otherwise competing constituencies together
for industry-wide benefits; (iii) participation by a critical mass of hotels and
participants in the electronic hotel room distribution process and (iv)
expertise in leading technology applications. By acting as a gateway for
information and transaction flows, such a provider of services would be well
positioned to improve the efficiency and effectiveness of the distribution of
hotel rooms, the processing of travel agency commission payments and the
gathering and distribution of hotel industry information.
THE PEGASUS SOLUTION
The Company provides information and transaction processing services that
improve the efficiency and effectiveness of the hotel room reservation and
commission payment processes. The Company's THISCO and TravelWeb services
enhance the electronic hotel room reservation process by providing a standard,
common
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<PAGE> 37
electronic interface that enables individual travelers and intermediaries to
access hotel room inventory information and conduct reservation transactions.
The Company's HCC service improves the efficiency and effectiveness of the
commission payment process for hotels and travel agencies by consolidating
commissions into one payment in the travel agency's currency of choice and
providing comprehensive transaction reports. The Company has developed an
in-depth understanding of the technical and business processes involved in hotel
room reservations and commission payment processing. The Company's strategic
position as a gateway in the hotel room distribution chain, transaction
processing capabilities and reputation for reliability and neutrality enable it
to offer a range of services delivering industry-wide benefits that would be
difficult for any industry participant to achieve individually.
The Company's current services and services in development generally fall
into three categories: electronic hotel room reservation services, commission
payment processing services and information services. Depicted in the following
diagram are the Company's electronic hotel room reservation services and
commission payment processing services that are currently offered or in
development.
[PRODUCT DIAGRAM]
The Company's THISCO service is a leading provider of room reservation
processing services that electronically connect hotel central reservation
systems with other participants in the hotel room distribution process. Over
25,000 hotel properties worldwide, including those of 13 of the 15 leading hotel
chains based on 1996 total revenues currently utilize the THISCO service.
Furthermore, because the THISCO service provides a connection to each major GDS,
and through them over 120,000 travel agencies worldwide, as well as with
convention and other large meeting organizers, corporate travel departments and
emerging Internet travel services, the Company offers hotels an effective and
low cost single point of contact with all the major participants in the hotel
room distribution process. The THISCO service provides travel agencies greater
and easier access to real-time hotel information and the ability to make a
reservation and receive a confirmation in seconds. The THISCO service also
allows GDSs to offer fast confirmation for hotel room reservations made through
their systems, improved efficiency because of a single interface, access to
25,000 hotel properties worldwide and real-time availability of information.
Convention and other large meeting organizers, corporate
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<PAGE> 38
Pictures and logos depicting the following transaction flows:
1. Consumer to Travel Agent to Global Distribution System ("GDS") to
UltraSwitch-THISCO to Hotel.
2. Consumer to GDS Internet Travel Sites to GDS to UltraSwitch-THISCO to
Hotel.
3. Consumer to TravelWeb to UltraSwitch-THISCO to Hotel.
4. Consumer to Partner Web Sites to Pegasus Systems NetBooker to
UltraSwitch-THISCO to Hotel.
5. Consumer to Corporate Travel to Pegasus Systems-UltraDirect to
UltraSwitch-THISCO to Hotel.
6. Consumer to Conventions & Meetings Planners to Pegasus
Systems-UltraRes to UltraSwitch-THISCO to Hotel.
7. Hotel to HCC-Hotel Clearing Corporation to Travel Agent.
8. HCC-Hotel Clearing Corporation, UltraSwitch-THISCO and Hotel to Pegasus
IQ.
<PAGE> 39
travel departments and others also are able to utilize the THISCO service to
automate their hotel room reservation process. Additionally, individual
travelers can shop in real-time and reserve hotel rooms directly by using either
TravelWeb, the Company's own Web site, or through a Web site that utilizes
NetBooker, the Company's hotel reservation service provided to third-party Web
sites.
The Company's HCC commission processing service simplifies the payment of
travel agency hotel room commissions by over 14,000 participating hotel
properties to over 66,000 participating travel agencies worldwide. By
consolidating the payment of commissions and providing comprehensive transaction
reports, HCC enables hotels and travel agencies to increase efficiency and
reduce costs associated with preparing, paying and reconciling commissions.
The Company's Pegasus IQ service is intended to provide hotel information
to a wide variety of audiences in the global hotel industry from hotel chains to
travel industry marketing groups to corporate travel departments. The Pegasus IQ
service is expected to provide industry trend reports and guest behavior data in
an automated, timely format for hotels and hotel marketing companies as well as
benchmark information services that compare a hotel's daily room and occupancy
rates with its competition. Furthermore, the Pegasus IQ service intends to
provide data in an electronic format to individual travelers or corporate travel
departments regarding a particular stay at a hotel, together with information
provided by payment card companies, to facilitate automated expense reporting or
to ensure travel policy adherence. The Company currently anticipates formally
introducing the Pegasus IQ service in selected markets in late 1998.
The Company generally charges for its services on a per-transaction or
commission basis. The Company has the opportunity to earn revenue by processing
transactions through virtually all the means by which electronic hotel room
reservations occur, whether or not a GDS is involved in the transaction.
STRATEGY
The Company's objective is to capitalize on its central position in the
hotel industry information and transaction flow in order to become the leading
provider of services and technology that enable the efficient and effective
electronic distribution of hotel rooms. To achieve this objective, the Company
intends to employ a strategy that includes the following key elements:
Expand Customer Base. The Company's established customer base includes
hotels, hotel representation firms, travel agencies, GDSs and third-party Web
sites. The Company intends to expand its customer base domestically and
internationally by adding customers and by cross-selling its new and existing
services to its current and future customers. Because of the fixed nature of
many of the Company's costs, the addition of new customers and the increase in
transaction volumes with new and existing customers enhances the profitability
of all of the Company's services.
Expand Hotel Room Distribution Channels. The Company is expanding its
service offerings to include additional distribution channels, such as hotel
room reservation services for individual travelers over the Internet, for
convention and other large meeting organizers and for corporate travel
departments through corporate intranets. The Company is addressing this online
distribution opportunity through increasing the capability and consumer
awareness of its TravelWeb site, expanding the use by third-party Web sites of
the Company's NetBooker service and providing services to corporate travel
departments through its UltraDirect service. The Company plans to capitalize on
the opportunity with convention and other large meeting organizers by providing
these distribution participants electronic access to hotel central reservation
systems through its UltraRes service. The Company's services are intended to
provide transaction fee revenue opportunities through virtually all of the
distribution channels by which electronic hotel room reservations occur.
Develop Hotel Industry Information Service. The Company intends to continue
the development and implementation of Pegasus IQ, an information service which
is intended to provide hotel and other industry participants with hotel
transaction information for use in strategic analysis, market tracking and
improved target marketing and revenue optimization. The Company recently
acquired software and technology that would enhance the Company's ability to
gather and process hotel checkout data for the Pegasus IQ service. In
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<PAGE> 40
addition, the Company has recently initiated discussions with certain hotels and
will continue to evaluate prospective alliances or partnerships which will
potentially enhance the value or distribution of the Pegasus IQ service.
Build Strategic Alliances and Pursue Acquisition Opportunities. The Company
intends to build strategic alliances with other participants in the hotel
industry, as well as members of the financial information services, Internet and
information technology industries, to enhance the functionality and market
presence of the Company's services. The Company believes that these
relationships will increase brand recognition of its services and help to expand
its customer base. The Company recently entered into an agreement with Microsoft
Corporation to process hotel reservations booked through Microsoft's travel
related services including, but not limited to Expedia.com. The Company will
also seek to acquire assets, technology and businesses that provide
complementary services or access to new markets and customers.
SERVICES
The Company's current services and services in development generally fall
into three categories: electronic hotel room reservation services, commission
payment processing services and information services. For the nine months ending
September 30, 1997, approximately 49.0% of the Company's consolidated revenues
was derived from its electronic hotel reservation services, including 43.4% from
the THISCO service and 5.6% from the TravelWeb service, and approximately 51.0%
of the Company's consolidated revenues was derived from its HCC service.
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<PAGE> 41
Hotel Room Reservation Services
The following table summarizes the hotel room reservation services the
Company has developed or is developing (including year of introduction):
<TABLE>
<S> <C> <C> <C>
HOTEL ROOM RESERVATION SERVICES
----------------------------------------------------------------------------------------------------------------
Services Users Benefits
--------------------------------
THISCO (1989) - Hotels and hotel - Improved efficiency because of single
representation firms interface
- Single electronic interface
between hotel central - Improved customer service due to
reservation systems and GDSs frequent hotel room inventory updates
utilized by travel agencies
- Improved accessibility to wide
audience of travel agencies via GDSs
- GDSs and participating travel - Improved efficiency because of single
agencies interface
- Rapid confirmations
- Access to over 25,000 hotel properties
worldwide
- Real-time availability of information
TravelWeb - Hotels and hotel - Access to emerging low cost electronic
representation firms distribution channel
- Electronic hotel property
catalog (1994) - Reduced distribution costs
- Web-based hotel room - Inexpensive publication and
reservations (1995) distribution of comprehensive and up-to-
date hotel information and promotions
- More attractive presentation of hotel
information
- Individual travelers - Around the clock electronic access to
hotel reservation capability
- Ability to shop and gain convenient
access to approximately 18,000 hotel
properties with rich information
content, including rate, feature and
availability information and pictures
of properties
- Access to special promotional offers
NetBooker (1997) - Hotels and hotel - Access to emerging low cost electronic
representation firms distribution channel
- Comprehensive hotel database
and hotel room reservation - Reduced distribution costs
capability tailored and fully
integrated into third-party - Inexpensive publication and
Web sites distribution of comprehensive and up-to-
date hotel information and promotions
- More attractive presentation of hotel
information
- Wider distribution of hotel
information and access to individual
travelers through presence on multiple
Web sites
- Third-party Web sites - Low cost access to comprehensive hotel
information and proven online hotel
reservation functionality
- Increased site value due to wider
scope of services provided
- Advertising and transaction-based
revenue opportunities
UltraRes (1996) - Hotels and hotel - Improved accuracy of convention and
representation firms large meeting reservations
- Single electronic interface
between hotel central - Reduced costs by eliminating manual
reservation systems and group reservation process
reservation systems utilized by --------------------------------
meeting planners and - Convention and visitors - Improved tracking of room inventory
convention housing organizers bureaus ----------------------------------------
- Improved reservation and cancellation
- Meeting planners tracking and reporting capabilities
- Group housing reservation - Single connection to multiple hotel
providers properties
- Reduced costs by eliminating manual
reservation process
UltraDirect (1997) - Hotels and hotel - Target marketing
representation firms
- Direct electronic access to - Broadened distribution channel
comprehensive hotel database
and hotel room reservation - Improved ability to update corporate
capability rate and availability information and
respond to reservation requests
- Reduced distribution costs for
corporate room sales
- Corporate travel departments - Reduced time and effort in making
hotel reservations
- Enforcement of corporate travel
policies and utilization of preferred
rates
- Improved travel information reporting
- Third-party corporate travel - Account retention
management systems providers
- Low cost access to hotel information
and online booking functionality
- Reduced time and effort in making
hotel reservations
- Enforcement of corporate travel
policies and utilization of negotiated
rates at preferred hotels
- Improved travel information reporting
Corporate TravelWeb - Corporate travel departments - Low cost access to comprehensive hotel
(1997 -- in development) information and online hotel reservation
functionality
- Web-based electronic hotel
room reservation capability - Reduced time and effort in making
for corporate travel hotel reservations
departments
- Improved travel information reporting
- Enforcement of corporate travel
policies and utilization of negotiated
rates at preferred hotels
</TABLE>
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<PAGE> 42
THISCO. The Company's THISCO service is a leading electronic hotel room
reservation processing service that interfaces communications concerning hotel
reservation information between all major GDSs and hotel central reservation
systems. According to HEDNA, approximately 30.0 million hotel room reservations
were made electronically through GDSs during 1996. During 1997, approximately
17.5 million hotel room reservations were made through THISCO. THISCO currently
connects central reservation systems representing over 25,000 participating
hotel properties to each major GDS and through them over 120,000 travel agencies
worldwide. The following table sets forth the number of THISCO net reservations
in each of the years 1990 through 1997.
THISCO
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------------
1990 1991 1992 1993 1994 1995 1996 1997
------ ------ ------ ------ ------ ------ ------ ------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net reservations............. 1,145 3,498 5,012 6,481 8,373 10,963 13,947 17,528
Year-over-year growth rate... 206% 43% 29% 29% 31% 27% 26%
</TABLE>
THISCO enables a hotel to connect to all major GDSs without having to build
and maintain a separate interface for each GDS. Without THISCO or a similar
service, hotel chains that desire their room inventory to be accessible to
travel agencies electronically on a GDS must develop protocols and message
formats compatible with each GDS, a process that entails significant time and
expense. Alternatively, hotels may rely more heavily on less-automated means,
such as traditional toll-free telephone reservation centers with higher
processing costs. THISCO enables the processing of hotel room reservations and
also transmits millions of status messages sent by participating hotels every
day to update room rates, features and availability on GDS databases. Many
participating hotels also have chosen to utilize the Company's UltraSelect
service, which provides travel agencies using GDSs with direct access through
THISCO to a hotel's central reservation system bypassing the GDS databases to
obtain the most complete and up-to-date hotel room information available. See
"-- Technology and Operations."
Hotels using THISCO improve the efficiency of their central reservation
systems and reduce costs by not having to develop and maintain separate
communications circuits and translation software for each GDS. Through THISCO,
participating hotels are able to gain improved access to a wide audience of
travel agencies worldwide that are connected to GDSs and to provide better
customer service due to the ability to frequently update hotel room information
on GDS databases in a fast and reliable manner. THISCO benefits travel agencies
that use GDSs by providing real-time access to comprehensive hotel room
information and enabling them to make reservations and receive confirmations in
seconds from over 25,000 hotel properties worldwide.
Pegasus charges its hotel customers a fee based on the number of net
reservations processed through THISCO. In addition, hotels pay certain fees for
status messages sent to GDSs through THISCO. New participants in THISCO may be
charged one-time set-up fees for work associated with the implementation of the
interface with THISCO. The Company also charges certain GDSs a fee based on the
number of net reservations to compensate for the management and consolidation of
multiple interfaces. The technology used by THISCO also enables the Company to
enhance its revenue base by providing the information and reservation interface
for its other hotel reservation services, including TravelWeb, NetBooker,
UltraRes, UltraDirect and Corporate TravelWeb.
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<PAGE> 43
Internet Services
TravelWeb. Located at www.travelweb.com, TravelWeb provides individual
travelers direct access to more than 58,000 dynamically served pages of online
hotel information and the ability to make reservations at approximately 15,000
hotel properties in 140 countries. In the fourth quarter of 1997, a daily
average of approximately 33,000 Internet users visited the TravelWeb site. The
following table sets forth the number of net reservations made using the
TravelWeb service in the past two years since the Company introduced online
reservation capabilities in December 1995.
TRAVELWEB
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-----------------
1996 1997
------ -------
<S> <C> <C>
Net reservations............................................ 32,204 118,822
Year-over-year growth rate.................................. 269%
</TABLE>
Individual travelers traditionally obtain information or reserve a room by
contacting a hotel directly by telephone or fax or indirectly through
intermediaries, such as travel agencies, convention and other large meeting
organizers and corporate travel departments. As a result, an individual traveler
cannot easily obtain information from a wide range of hotel properties in a
timely manner. TravelWeb provides detailed information regarding a wide array of
hotel properties and, through its connection to the Company's THISCO service,
allows individual travelers to reserve a hotel room and receive a confirmation
in seconds. See "-- Technology and Operations."
TravelWeb benefits hotels, hotel representation firms and individual
travelers. TravelWeb reduces distribution costs for hotels and hotel
representation firms. TravelWeb also enables access to an emerging low cost
electronic distribution channel. In addition, TravelWeb provides an inexpensive
method of publishing and distributing comprehensive and up-to-date hotel
marketing information with an attractive presentation format featuring visual
images and graphics. Hotels can easily add, delete and update such information
using the Company's "remote author" feature. Additionally, the "Click-it!
Weekends" feature highlights weekend specials, enabling hotels to take advantage
of the real-time nature of the Internet to offer flexible pricing and to reach
individual travelers on a world-wide basis quickly and inexpensively. TravelWeb
benefits individual travelers by providing electronic access, 24 hours a day,
seven days a week, to shop for and reserve a hotel room in one or more of the
thousands of hotel properties online. Furthermore, individual travelers are able
to gain detailed information about a hotel property and its special promotional
offers through the rich information content available on TravelWeb.
In addition to hotel room reservations, TravelWeb offers airline booking
capability through Internet Travel Network, Inc. ("ITN"). TravelWeb allows users
to check air fares, flight times and availability and purchase airline tickets
while online. All TravelWeb air bookings are routed to ITN's travel agency and
ticketed and shipped to the traveler. The Company has an agreement with Hertz
Corporation to provide car rental booking capability through TravelWeb, pending
completion of technical development. TravelWeb also offers "The Resources
Center" which provides information and links for a variety of travel-related
services, such as food, shopping, area attractions and business services.
Most hotel participants in TravelWeb pay the Company a monthly subscription
fee based on the number of their properties included in the database and a
booking fee based on the number of net reservations made through TravelWeb. The
Company is in the process of transitioning the booking fee structure for
TravelWeb from a flat fee to a commission based on the total room rate, payable
by the hotel after the guest has checked out of the hotel. Amounts payable
through the TravelWeb site will be susceptible to the same or similar
uncertainties regarding collectibility of commissions paid to travel agencies on
hotel reservations made in the traditional manner. See "Risk
Factors -- Potential Adverse Changes in Hotel Commission Payments."
The Company plans to increase significantly its expenditures on advertising
and promotion in order to attract more visitors to the TravelWeb site and to
continue to upgrade the attractiveness and quality of the site.
39
<PAGE> 44
The Company intends to dedicate a management team to the marketing of the site.
There can be no assurance that the cost of attracting additional visitors to the
site will not exceed the incremental revenues associated with the commissions
produced by bookings made by visitors to the site.
The Company also began to sell advertising space on TravelWeb during 1996,
focusing on advertisers that target travelers. In September 1997, the Company
entered into an agreement to utilize the services of a third party, DoubleClick,
Inc., ("DoubleClick") to sell advertising and provide administrative services
relative to those sales, (principally invoicing and collection). The Company
receives a share of the net advertising revenue collected by DoubleClick. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
NetBooker. The Company recently introduced a service for the operators of
third-party Web sites which combines TravelWeb's hotel information database and
THISCO's electronic interface capability to make hotel room reservations. The
following table sets forth the number of net reservations made using the
NetBooker service since the Company made the service available in the first
quarter of 1997.
NETBOOKER
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------
MARCH 30, JUNE 30, SEPT. 30, DEC. 31,
1997 1997 1997 1997
--------- -------- --------- --------
<S> <C> <C> <C> <C>
Net reservations....................... 4,728 20,034 29,086 49,854
Quarter-over-quarter growth rate....... 324% 45% 71%
</TABLE>
To conduct Internet-based electronic commerce successfully, Web site
operators must offer a content set which is sufficiently broad, accurate,
up-to-date, graphically appealing and useful to attract buyers to the Web site.
Typically, the development of such a content set is expensive and time
consuming. Furthermore, in addition to providing individual travelers with
access to useful and graphically appealing information, the operator of a Web
site must offer individual travelers the capability to effect a transaction in
order to generate a transaction fee. The Company's NetBooker service offers
operators of Web sites the same information contained on TravelWeb and a simple
and fast method of making a hotel room reservation online. The Company's
NetBooker service utilizes advanced technology applications to customize the
TravelWeb hotel database so that it appears to the user to be an integral part
of the third-party Web site. In connection with this service, the operator of
the third-party Web site establishes an interface to the Company's THISCO
service, which enables users of the Web site to shop and query room
availability, electronically make a reservation and receive a confirmation in
seconds. In August 1996, the Company entered into an agreement with Preview
Travel Inc. to provide its America Online users, as well as its Web site users,
direct access to the TravelWeb database and direct connections to hotel central
reservation systems. Recently, the Company entered into a similar agreement with
ITN.
In November 1997, the Company entered into an agreement with Microsoft
Corporation to license the Company's hotel database and to provide for the
processing of reservations with participating hotels to be used in connection
with the Microsoft Travel Technologies ("MTT") platform. MTT provides booking
functionality and hotel information to Internet travel sites including Microsoft
Expedia.com and various other sites including those of Northwest Airlines and
Continental Airlines. The MTT platform is also used in connection with American
Express Interactive ("AXI"), a private-label booking product for corporate
travel provided by American Express Company. See "-- Technology and Operations."
The Company's hotel customers benefit from its NetBooker service because it
enables a broader dissemination through the emerging, low cost Internet
distribution channel of the same marketing information supplied to TravelWeb. As
a result, hotels need only incur the effort and expense of creating and
maintaining their information on a single site to reach multiple Internet
distribution points and achieve increased overall visibility. Furthermore, the
NetBooker service provides hotel customers an inexpensive means to distribute
and publish visually attractive marketing information and Internet-specific
promotions. Hotels offering their own brand-specific Web sites also can have
their own content delivered to their sites from TravelWeb's
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<PAGE> 45
database and process reservation requests from their Web sites through the
THISCO service. Users and operators of third-party Web sites benefit from the
NetBooker service through immediate access to the rich content of TravelWeb.
Furthermore, because users of the third-party Web sites can book hotel rooms and
receive confirmations in seconds through the THISCO service, the Company's
service affords the operators of third-party Web sites the opportunity to
generate a transaction fee revenue stream.
The Company charges third-party Web sites an initial development and
licensing fee for the NetBooker service. Hotel participants in the NetBooker
service pay the Company a monthly subscription fee based on the number of
properties included in the database and a fee based on the number of net
reservations made through any third-party Web sites using the NetBooker service.
The Company has not received a material amount of revenues for this service to
date, and there can be no assurance that this service will produce a material
amount of revenues in the future. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
UltraRes. The Company's UltraRes service automates the processing of hotel
room reservations for conventions and large meetings. The process traditionally
used to reserve hotel rooms for these events is information-intensive and
inefficient. Typically, convention and meeting organizers request hotel
reservations for blocks of rooms by fax, mail or telephone. Hotels manually
enter these reservations into their central reservation systems and send
confirmation numbers to the convention or meeting organizers, and the meeting
organizers manually enter the confirmation and reservation information into
their own systems. This process frequently leads to inaccurate and delayed
information and overbooking or underbooking. With the Company's UltraRes
service, convention and other large meeting organizers are able to transfer
reservation requests to the THISCO service electronically, which translates the
information to electronically book a room in each hotel central reservation
system. The UltraRes service eliminates the need to transfer rooming lists for
manual entry at the hotel and allows hotels to deliver reservations and
confirmations electronically in a fast and reliable manner. In January 1997, the
Company's UltraRes service was endorsed by the International Association of
Convention and Visitors Bureaus as the preferred standard for electronic
transmission of convention hotel reservations. See "-- Technology and
Operations."
The Company's UltraRes service can benefit all parties involved in the
distribution of hotel rooms for conventions and other large meetings. Since
reservations are made through the Company's THISCO service rather than manually,
reservations, modifications and cancellations can be received earlier and
updated more frequently and efficiently. The Company's UltraRes service provides
convention and other large meeting organizers a single connection to multiple
hotel properties and enables fast, accurate and reliable reservation and
confirmation of hotel rooms at reduced cost. The Company's UltraRes service also
assists hotels in controlling their room inventory by reducing the risk of
overbooking or underbooking and allows hotels to reduce the cost of booking
related to convention reservations. The Company estimates that the majority of
these types of reservations were made at five major hotel chains (Hilton, Hyatt,
Marriott, Sheraton and Westin) whose facilities are designed for and cater to
large conventions and meetings. Because all five of these chains are THISCO
customers, the Company is positioned to take advantage of the existing
connectivity with these chains to facilitate the development and marketing of
the UltraRes service.
The Company will charge participating hotels and convention and other large
meeting organizers fees based on the number of net reservations made using the
UltraRes service. The Company introduced the UltraRes service in late 1996 and
through 1997 has processed approximately 71,000 hotel room reservations. The
Company has not received a material amount of revenues for this service to date,
and there can be no assurance that this service will produce a material amount
of revenues in the future. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
UltraDirect. The Company's UltraDirect service provides the corporate
travel management industry with direct real-time link to the Company's THISCO
service through corporate intranet travel management software. With the
UltraDirect service, corporate travelers will be able to check availability and
make hotel reservations within seconds at hotel chains or properties with which
the traveler's employer has negotiated rates. Traditionally, large companies
have negotiated discounted hotel room rates with hotel chains and properties to
control their travel costs. However, because this information at times is not
available to a GDS,
41
<PAGE> 46
these rates frequently can only be requested by a travel agency over the
telephone. The UltraDirect service will enable corporate travel departments of
companies to have access to the customized information negotiated with hotel
chains and properties to facilitate hotel room reservations. Furthermore, this
information can be fully integrated into other components of the intranet site
and facilitate the creation of passenger name records and detailed profile
information.
The UltraDirect service will benefit hotels by providing an additional
hotel room distribution channel and enabling targeted marketing efforts directed
at corporate travel departments. Hotels will also be able to reduce distribution
costs for corporate room sales and better update information and respond to
reservation requests from corporate travelers. Pegasus markets this service to
developers of corporate travel software programs and to travel agencies that
operate intranet travel management services. UltraDirect is intended to provide
benefits to travel agencies and companies by decreasing the amount of time
necessary to arrange a business trip, improving travel information reporting and
helping to ensure that employees comply with company travel policies and utilize
hotels with whom the Company has negotiated rates.
The Company charges hotels fees based on the number of net reservations
made using the UltraDirect service. The Company has reached an agreement with
TravelNet, Inc. (a division of Reed) that is designed to allow users of
TravelNet's Voyager travel management software system to access UltraDirect for
the purpose of making hotel reservations. When a corporate traveler uses Voyager
to make hotel arrangements, the Voyager system accesses the UltraDirect service,
which in turn connects to hotel central reservation systems through the THISCO
service. The Company has not received a material amount of revenues for this
service to date, and there can be no assurance that this service will produce
material revenues to the Company in the future. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
Corporate TravelWeb. The Company is developing its Corporate TravelWeb
service to provide corporate travel departments with Web-based electronic hotel
room, airline and car reservation capabilities. This service is intended to
benefit corporate travel departments by providing low-cost access to
comprehensive travel information and on-line reservation functionality, reducing
the time and effort required in making travel reservations, and improving travel
information reporting, the enforcement of corporate travel policies and the use
of negotiated or preferred rates.
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<PAGE> 47
Commission Processing Services
HCC. The Company's HCC service began operations in 1992 to process the
payment of hotel commissions to travel agencies. The following table summarizes
the commission processing and payment services offered by HCC:
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
COMMISSION PROCESSING SERVICE
- ------------------------------------------------------------------------------------------------------------------
Service Users Benefits
- ------------------------------------------------------------------------------------------------------------------
HCC (1992) - Travel agencies - Improved efficiency in reconciliation of commission
payments
- Commission processing
service: aggregates, - Reduced bookkeeping and banking costs
reports and disburses hotel
room reservation - Payment in preferred currency
commissions from hotels to
travel agencies - Improved information on customer reservation habits
- Assistance in reconciling commissions through
customer relation centers
- Hotels and hotel - Streamlined commission payment process
representation firms
- Reduced accounting, processing and bookkeeping costs
- Improved information regarding travel agency
bookings
- Encouragement of travel agency bookings at hotels
Global Commission - Hotels - Streamlined commission payment process
Processing
- Reduced accounting, processing and bookkeeping costs
- Commission payment
service: provides
full outsourcing on
behalf of hotels for
all travel agency
(both HCC and
non-HCC) hotel
commission payments
</TABLE>
The HCC service is the largest provider of travel agency commission and
processing services in the hotel industry. The Company has registered over
14,000 properties and over 66,000 travel agencies as HCC participants. During
1996, the Company processed more than six million commissionable transactions
using the HCC service, and the dollar amount of the commissions processed during
this period totaled approximately $111.7 million. The following table sets forth
the dollar amount of commissions processed by HCC during the period indicated:
HCC
<TABLE>
<CAPTION>
NINE MONTHS
ENDING
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- -------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- -------- -------- ------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Gross commissions
processed............. $ 5,156 $ 23,559 $ 36,394 $ 74,547 $111,714 $81,418 $121,192
Period-over-period
growth rate........... 357% 54% 105% 50% 53% 49%
</TABLE>
Typically, a hotel pays to the travel agency that made the hotel
reservation a commission of approximately 10% of the room rate paid by a hotel
guest. However, the payment process related to these commissions historically
has been costly and inefficient, consisting of numerous checks in small amounts
and little information regarding the basis from which the commission was
calculated. Furthermore, communication between hotels and travel agencies
regarding payable commissions generally has not been effective because guest
cancellations or "no-shows" would frequently not be reported and travel agencies
would expect a commission when in fact none was due. As a result, travel
agencies lacked the necessary resources to reconcile commission payments
effectively. In response to this problem, the Company developed the HCC
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<PAGE> 48
service to gather commission payment information, process that information and
transmit to travel agencies one consolidated check in the travel agency's
currency of choice, together with an information statement that enables the
travel agency to reconcile its hotel commission activity. See "-- Technology and
Operations."
The Company's HCC service reduces a hotel's cost by streamlining the
commission payment process and consolidating into a single payment the aggregate
commission owed by a participating hotel to all participating travel agencies.
Additionally, the HCC service provides an incentive to travel agencies to make
reservations at HCC-participating hotels in countries other than their own
because the HCC service disburses checks denominated in each travel agency's
currency of choice. Furthermore, the monthly and quarterly marketing reports and
statistics prepared for the hotel by the HCC service allow the hotel to identify
and market more effectively to those travel agencies that provide the hotel with
the majority of its guests. The hotel also benefits from HCC's Customer
Relations Center, which allows travel agency inquiries regarding commissions to
be resolved by HCC rather than by the hotel itself.
The Company's HCC service also provides benefits to its travel agency
participants. The consolidated check that the HCC service delivers in the travel
agency's currency of choice reduces the staff time spent processing multiple
checks and deposit slips, eliminates bank fees for multiple deposits and
currency exchanges and is designed to improve the travel agency's ability to
manage cash flow. The monthly report delivered by the HCC service allows the
travel agency to confirm commissions paid, follow customers' reservation habits
and reduce a travel agency's expenses for collection activity and for tracking
bookings that result in cancellations or "no-shows." The HCC Customer Relations
Center provides prompt responses to agency inquiries and can substantially
reduce the time and cost of reconciling outstanding commissions. The Company's
optional HCC Electronic service for electronic payment and reconciliation of
commissions enables travel agencies to further reduce commission reconciliation
costs and provides travel agencies with immediate access to funds. Pegasus
maintains a Web site, HCCnet, that provides a comprehensive description of HCC
services. HCCnet provides a complete listing of all of the hotels that have
committed to paying hotel commissions through the HCC service. Moreover, travel
agencies can subscribe to an executive summary report that can be used to
evaluate the travel agency's activity with a particular hotel to assist with
volume negotiations, among other matters.
The Company charges each participating travel agency a service fee based on
the amount of commissions paid to the travel agency. The Company also generally
charges hotels a fee based on the number of commissionable transactions
processed.
In November 1997, the Company entered into an agreement that provides for
Promus Hotel Corporation to outsource its entire travel agent commission
processing and associated customer service support to the Company. Promus has
utilized the Company's HCC service for payments of hotel commissions to HCC
participating travel agencies. It will now utilize the Company to remit hotel
commission payments to all travel agencies. The Company intends to implement
this service in mid-1998.
Information Services
Pegasus IQ. The Company has incorporated a subsidiary, Pegasus IQ, which is
developing a service to provide hotel information to a wide variety of audiences
in the global hotel industry, from hotel chains to travel industry marketing
groups to corporate travel departments. The Company believes that the hotel
industry has limited sources that provide comprehensive transaction-specific
hotel data in a timely manner. Leveraging the existing databases used in the
THISCO, TravelWeb, NetBooker and HCC services and utilizing other data available
through hotel property management systems, the Pegasus IQ service intends to
compile data regarding hotel guests and their use of hotels in
transaction-specific detail and to organize that data into meaningful
information. Pegasus IQ intends to provide industry trend reports and guest
behavior data in an automated, timely format for hotels and hotel marketing
companies. The Pegasus IQ service also is intended to provide benchmark
information services that compare a hotel's daily room and occupancy rates with
that of its competition. Furthermore, Pegasus IQ intends to provide data in an
electronic format to individual travelers or corporate travel departments
regarding a particular stay at a hotel, together with information
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<PAGE> 49
provided by payment card companies, to facilitate automated expense reporting or
to ensure travel policy adherence.
Pegasus IQ intends to market its services to numerous participants in the
travel industry, including hotel companies, payment card companies, travel
agencies, individual travelers, convention and other large meeting organizers,
corporate travel departments, hotel developers and hotel industry consultants.
In developing the Pegasus IQ service, the Company to date has assigned a full
time manager and specified the service design and requirements. Pegasus IQ has
entered into agreements for beta site implementation of the information
gathering and reporting with certain hotel companies. See "-- Technology and
Operations."
In December 1997, the Company acquired the software technology and
contracts of Wetherly International ("Wetherly"). The Wetherly software
interfaces with a broad variety of hotel property management systems and can be
used to facilitate the extraction of reservation and commission data needed by
HCC to process travel agency commissions. In addition, the Company entered into
a two-year exclusive consulting agreement with John Darby, the vendor of the
Wetherly technology under which he will provide services on a full time basis in
connection with the marketing, licensing, maintenance, support, enhancement
and/or modification of the software acquired by the Company. In connection with
further development of the Pegasus IQ service, the Company intends to evaluate
prospective alliances or partnerships which will potentially enhance the value
or distribution of the Pegasus IQ service. The Company currently anticipates
formally introducing the Pegasus IQ service in selected markets in late 1998.
However, there can be no assurance that the Company will successfully enter into
such alliances or partnerships that will further enhance the value or
distribution of the Pegasus IQ service or that will enable the Company to
formally introduce the Pegasus IQ Service in selected market in late 1998.
The Company's future success will depend, in part, on its ability to
develop leading technology, enhance its existing services, develop and introduce
new services that address the increasingly sophisticated and varied needs of its
current and prospective customers, and respond to technological advances and
emerging industry standards and practices on a timely and cost-effective basis.
Although the Company strives to be a technological leader, there can be no
assurance that future advances in technology will be beneficial to, or
compatible with, the Company's business or that the Company will be able to
economically incorporate such advances into its business. In addition, keeping
abreast of technological advances in the Company's business may require
substantial expenditures and lead time. There can be no assurance that the
Company will be successful in effectively using new technologies, adapting its
services to emerging industry standards or developing, introducing and marketing
service enhancements or new services, or that it will not experience
difficulties that could delay or prevent the successful development,
introduction or marketing of these services. The services that the Company is in
the process of developing may require substantial expenditures. If the Company
incurs increased costs or is unable, for technical or other reasons, to develop
and introduce new services or enhancements of existing services in a timely
manner in response to changing market conditions or customer requirements, or if
new services do not achieve market acceptance, the Company's financial condition
and results of operations could be materially adversely affected. See "Risk
Factors -- Impact of Technological Advances; Delays in Introduction of New
Services."
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<PAGE> 50
CUSTOMERS
The Company markets and provides its services to a wide range of customers,
including but not limited to hotels, large travel agencies, travel agency
consortia comprised of smaller travel agencies, GDSs and independent hotels
represented by hotel representation firms such as REZsolutions, Inc. (the
company formed as a result of the merger of Anasazi, Inc. and Utell
International) and Lexington Services Corporation. During 1996, no one customer
accounted for as much as 6% of the Company's revenues.
Pegasus includes as its customers 14 of the 15 largest hotel chains in the
world based on 1996 total revenues. As of December 31, 1997, the Company's
customers include the following hotels and hotel representation firms which have
a minimum of 10 properties, with stockholders (or affiliates thereof) of the
Company indicated by an asterisk:
ADAM'S MARK HOTELS & RESORTS
*BEST WESTERN INTERNATIONAL
*CHOICE HOTELS INTERNATIONAL
Clarion Inns
Comfort Inns
Econo Lodge
Friendship Inns
Mainstay Suites
Quality Inns
Rodeway Inns
Sleep Inns
COASTAL HOTELS
CONCORDE HOTELS
*FORTE HOTELS, PLC
Forte Hotels
Meridien
GLOBAL RESOURCES, INC.
Global Resources Hotels
SCANRES
World Class Hotels
GUESTHOUSE ASSOCIATION OF SOUTH AFRICA
HAWTHORN SUITES
HANOVER INTERNATIONAL HOTELS & CLUBS
*HILTON HOTELS CORPORATION
Conrad International
HILTON INTERNATIONAL
HOLIDAY HOSPITALITY
HOTEL WORLD
HFS INCORPORATED
AmeriHost Inn Hotels
Days Inns of America
Howard Johnson
Knights Inn
Ramada
RCI Management, Inc.
Super 8 Motels
Travelodge Hotels
Villager Lodge
Wingate Inn
HOTEL OKURA
HOTKEY INTERNATIONAL
Regal Hotel Group U.K.
Romantik Hotels
*HYATT HOTELS
HYATT INTERNATIONAL
*INTER-CONTINENTAL HOTELS
Inter-Continental Hotels and Resorts
Forum Hotels by Inter-Continental
Global Partner Hotels & Resorts
*ITT SHERATON
Four Points
Global Connextions
ITT Sheraton Hotels & Resorts
Sheraton Inns
Sheraton Luxury Collection
KAROS HOTELS & RESORTS
KIMPTON HOTELS
*LA QUINTA INNS
LEXINGTON SERVICES CORPORATION
Bartells Hotels
Design Hotels
Harvey Hotels
Lexington Hotels & Suites
Suite Connection
Summerfield Suites
MANDARIN ORIENTAL HOTEL
MARITIM HOTELS
*MARRIOTT INTERNATIONAL CORPORATION, INC.
Courtyard by Marriott Hotels
Fairfield Inn by Marriott Hotels
Marriott Hotels, Resorts and Suites
Marriott Vacation Club International
Renaissance Hotels & Resorts
Residence Inn by Marriott Hotels
Ritz-Carlton
OBEROI GROUP OF HOTELS
ORBIS HOTELS
PAN PACIFIC HOTELS & RESORTS
POSADAS
Fiesta Americana
Fiesta Inns
PREFERRED HOTELS & RESORTS WORLDWIDE
*PROMUS HOTELS CORPORATION
Doubletree Hotels
Embassy Suites
Embassy Vacation Resorts
Hampton Inn & Suites
Hampton Inns
Hampton Vacation Resorts
Homewood Suites
Red Lion Hotels & Inns
RECONLINE
RED ROOF INNS
REGAL HOTELS
*REZSOLUTIONS, INC.
Airco
AmeriSuites
ANA Hotels
Anasazi Travel Resources
ARCOTEL Hotels & Resorts
Beresford Hotels
Bildberg Hotels
Camberely Hotels
Copthorne Hotels
Dan Hotels
Disneyland Paris
Dusit Hotels
Fairmont Hotels & Resorts
Four Seasons Hotels & Resorts
Golden Tulip Hotels
Grand Bay Hotels & Resorts
Grand Heritage Hotels International
Grand Traditions
Helmsley/Harley Hotels
Ian Schrager
Insignia Resorts
Jarvis Hotels
Jury's Hotels
Loews Hotels
LRI
Millennium Hotels & Resorts
New Otani Hotels
Nikko Hotels International
Omni Hotels
Prince Hotels
Queens Moat Houses Hotels Gmbh
Registry Resorts
Rihga Royal Hotels
Robert Reid
Scandic Hotels
Shangri-La Hotels & Resorts
Sonesta International Hotels
Star Hotels
Starwood Lodging
Sterling Hotels and Resorts
Summit International
Thistle/Mt. Charlotte Hotels
Top International Hotels
Vacation Break Hotels
Warwick Hotels
Wellesley Inns
World Hotels & Resorts
SCEPTRE HOTELS
SILVER MANOTEL MARKETING
SOL MELIA HOTELS
SOUTHERN PACIFIC
STOCKS HOTELS & RESORTS
SWISSOTEL
TAJ GROUP OF HOTELS
TIANMA SYSTEM
TOKYU HOTELS
SPHC
TRAVELODGE HOTELS & RESORTS ASIA PACIFIC
CENTRA HOTELS & RESORTS
PARKROYAL HOTELS & RESORTS
TRUST INTERNATIONAL
TRYP HOTELS
VIP INTERNATIONAL
WALT DISNEY WORLD RESORTS & THEME
PARKS
*WESTIN HOTELS & RESORTS
WESTMARK HOTELS
WYNDHAM HOTELS & RESORTS
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<PAGE> 51
The Company has registered approximately 66,000 travel agencies as
participants in the HCC service. Of the 100 largest travel agencies in the
United States, according to Travel Weekly, a publication owned by a stockholder
of the Company, 66 are customers of the Company's HCC service. The following
travel agencies represent the 10 largest HCC customers based on Company revenues
for the nine month period ending September 30, 1997:
<TABLE>
<S> <C>
American Express Mutual Travel
Associated Travel Services Omega World Travel
BTI Americas Travel and Transport
Carlson Wagonlit Travel One
CUC Travel World Travel Partners
</TABLE>
The Company's business is dependent upon customer arrangements with its
hotel stockholders or their affiliates, other hotel chains and hotel properties
and hotel representation firms, travel agencies, travel agency consortia and
GDSs. There can be no assurance that the Company will be able to continue or
renew these arrangements on equal or better terms. Any cancellation or
non-renewal of these arrangements that results in a significant reduction in the
Company's customer base or revenue sources could materially adversely affect the
Company's financial condition and results of operations. See "Risk
Factors -- Dependence on Key Customers and Third-Party Service Arrangements."
SALES AND MARKETING
The Company sells all of its services to hotels through a direct sales
force in the Americas and in Europe and sells its HCC services directly to
travel agencies and through relationships with travel agency consortia and
franchisors. Additionally, as of December 31, 1997, the Company has a team of 23
technical support staff to supplement the efforts of the sales force and provide
comprehensive customer support services. The Company has a Chief Marketing
Officer, a Vice President for domestic sales and five salespersons based in
Dallas responsible for sales in the Americas and a Vice President for
international sales and a salesperson based in London responsible for sales
outside of the Americas. The Company organizes its hotel sales force in the
Americas into three geographic territories, each targeting hotels and UltraRes
service users. Each hotel salesperson seeks to establish ongoing relationships
with the reservations and marketing management personnel of hotels in that
representative's designated territory and to assist the hotels in achieving
increased efficiency and cost reduction in their hotel reservation systems
through the use of the Company's services. The Company's travel agency sales
force sells HCC services directly to large travel agencies. Additionally, the
Company offers its HCC service to smaller travel agencies organized in consortia
and to travel agency franchisees through preferred supplier programs. The terms
of these programs are set at the consortium or franchisor level, and the HCC
service is promoted to travel agency members of these organizations through
trade shows and consortium newsletters and magazines. The Company has made
arrangements with two of the four major GDSs to offer the HCC service to their
participating travel agencies in Europe through a joint promotional program. The
Company's London-based international sales personnel focus on both travel
agencies and hotels in different regions throughout the world. The Company uses
the services of DoubleClick, a third-party marketing organization to sell
advertising on the TravelWeb site.
The Company believes that the THISCO, HCC and TravelWeb brand names are
important assets of the Company, signifying the quality and reliability of the
Company's services. A separate brand manager is responsible for marketing each
brand. Each brand manager is responsible for product development and
enhancement, customer sales support, development of promotional and other
collateral materials, identification and optimization of revenue sources, market
research and establishment of relationships with key vendors. The THISCO service
is marketed primarily through establishing contacts and relationships with hotel
management, GDSs and other major users of the services. In addition,
participation in industry organizations and trade conventions increases brand
recognition of the Company's services. The Company also has sought to market its
UltraDirect service to corporate travel management software developers so that
they will include an automatic connection to the THISCO service in their hotel
reservation system software. In marketing the TravelWeb service, brand managers
focus their efforts on site development and establishing links to existing
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<PAGE> 52
third-party Web sites and related Internet content providers and aggregators.
Marketing efforts for the HCC service primarily are directed towards
participation in travel agency industry trade shows and promotion through travel
agency consortia and franchisors. In 1998, the Company intends to increase
staffing to provide marketing for its TravelWeb service.
TECHNOLOGY AND OPERATIONS
THISCO. The THISCO service utilizes the Company's UltraSwitch technology to
automate hotel reservation transaction processing between a GDS and a hotel
chain's central reservation system. UltraSwitch utilizes a UNIX-based,
client/server architecture. GDSs are connected to UltraSwitch through either
point-to-point telecommunications lines or a multi-protocol frame relay network,
both of which are managed by the Company. Communication processors running
proprietary, UNIX-based software perform protocol conversions. The transaction
processing engine within UltraSwitch, which contains its own proprietary,
UNIX-based software, performs message formatting and field translation functions
between GDSs and hotels' central reservation systems. UltraSwitch also contains
an Informix relational database that stores transaction-specific information for
billing and marketing and translates specific hotel property information. The
Company believes that for a hotel to change from THISCO to another service, the
hotel would be required to change the protocol used by its central reservation
system, as well as substantially convert the message formats used by its central
reservation system. If a hotel desired to bypass UltraSwitch and connect its
central reservation system directly to one or more GDSs, the hotel would be
required to develop protocols and message formats compatible with each GDS with
which it established such a connection and bear the recurring costs required to
maintain each system. The Company believes that these costs may discourage a
hotel from changing to a competitor or to a direct connection with a GDS. See
"-- Competition."
When using the THISCO service, hotels provide and update room rates,
features and availability information in two ways: (i) by transmitting
information to GDS databases through status messages and (ii) by offering
continuous, direct access to the hotel central reservation system through
UltraSelect. Hotel status messages transmitted through UltraSwitch are processed
within seconds. UltraSwitch processed an average of 61 million status messages
per month during 1997. A GDS database, however, stores only a limited amount of
room rate, feature and availability information for a hotel, which may not be
synchronized with the hotel's central reservation system. The Company's
UltraSelect service allows travel agencies that use GDSs direct access through
UltraSwitch into a hotel's central reservation system to shop and browse for all
room types and room rates with the most complete and updated hotel room
information. To accomplish this process, UltraSwitch receives proprietary direct
access transaction requests from each GDS, translates those into one or more
UltraSelect transaction requests and forwards them to the hotels' central
reservation systems. To utilize the UltraSelect service, the hotel's central
reservation system must be modified to accept the transmission of transactions
and allow for the electronic processing of these transactions through
UltraSwitch in real-time. Approximately 52% of hotels that subscribe to the
THISCO service provide this type of access to their central reservation systems
through the Company's UltraSelect service.
Using the information provided through the UltraSwitch technology, a travel
agent is able to shop or browse for a hotel room that fits particular
specifications, such as location, room rates and features. Once a travel agent
determines the desired hotel and type of room, UltraSwitch enables the travel
agent to inquire about availability of the room. The UltraSwitch technology
interfaces the request from the travel agent through a GDS with the information
available in the hotel's central reservation system. If a hotel room fitting the
inquiry is available, UltraSwitch enables the travel agent to book the room and
receive a confirmation within a matter of seconds. In 1997, the average
UltraSwitch processing time for interactive transactions, such as reservations
and inquiry messages, was 0.23 seconds and the average uptime across the 84
distinct connections to UltraSwitch was 99.8%, including as downtime all
scheduled and emergency downtime.
Utilizing the existing technology of UltraSwitch, the Company has developed
UltraRes, UltraDirect and Corporate TravelWeb services that provide customized
technological interfaces for convention and other large meeting organizers and
corporate travel departments to enable direct access into the extensive database
of hotels' central reservation systems and reservation and confirmation of hotel
bookings in seconds.
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<PAGE> 53
In connection with the development of the UltraSwitch technology and
related financing provided by Reed, the Company licensed certain rights to Reed
to use the UltraSwitch technology on an exclusive, royalty free basis, for
applications not related in any way to the operations of the hotel industry. In
connection therewith, Reed agreed not to compete with the Company and its use of
the UltraSwitch technology in the hotel industry. See "Certain Transactions."
TravelWeb. The Company has created its TravelWeb service using a scalable
architecture that presents user-friendly hotel and travel information to
individual travelers. The TravelWeb service stores detailed information on
approximately 18,000 hotel properties on an Informix relational database. To
add, delete and update information on their properties, hotels can access the
information in the TravelWeb database either through electronic batch transfers
or using a standard Web browser through the Company's proprietary "remote
author" feature. The Company's secured server software prevents unauthorized use
of the "remote author" feature, and the Company's quality assurance personnel
review any updated information to assure consistency. TravelWeb communication
engines (called Web engines) manipulate the information contained in the
Informix database. TravelWeb's scalable architecture allows the TravelWeb
service to access and manipulate the information contained in its database using
multiple Web engines. A Web engine currently consists of a Sun UltraSparcII,
Netscape Enterprise server software and a Javascript application. Although the
Informix database currently resides on a single Sun E 4000 database server, the
architecture allows the addition of more database servers as demand requires.
This advanced technology enables the TravelWeb service to format data to appear
as part of the Web site on which the information is viewed. The TravelWeb
service connects its information database to the Company's UltraSwitch
technology, which allows a user of the TravelWeb service who has found a desired
hotel room to secure a hotel reservation and a confirmation. The Company's
proprietary software contains a number of features to protect reservation
systems from abusive booking practices and allows hotels to control and maintain
the number of reservations made through the TravelWeb service allowed at any
hotel property.
To assure a high level of Internet connectivity, the Company has entered
into an arrangement with Genuity, Inc. ("Genuity"), a "Tier 1" Internet service
provider, to connect the TravelWeb service to the Internet. Genuity is
responsible for maintaining the speed and reliability of communications
conducted through the TravelWeb service. Genuity also provides message routing
assistance and dynamic load balancing of communications to minimize bottlenecks
in Internet communications. Furthermore, the Company's databases and Web engines
used with the TravelWeb service are located at sites operated by Genuity.
NetBooker. The Company's NetBooker reservation service provides third-party
Web sites direct access to the extensive TravelWeb hotel database and
UltraSwitch's hotel reservation and confirmation capabilities. The technology
used in the NetBooker service is similar to the TravelWeb service technology.
The scalable architecture utilized by the TravelWeb service and the use of the
Javascript application create a template environment in which a Web engine can
manipulate information in the Informix database and present such information
under the distinct front-end format of the customer Web site. In addition, the
NetBooker reservation service allows a customer Web site to establish an
interface to the Company's UltraSwitch technology, which enables users of the
Web site to shop and query room availability and to electronically book a
reservation in seconds. As a result, users of the third-party Web site have full
access to TravelWeb's database and booking capabilities while visiting that
site.
HCC. The HCC service captures information derived from hotel property
management systems to process commission payments for travel agencies. The HCC
service provides a connection for hotels through the same communication network
that the Company provides for its THISCO service. Communication engines perform
protocol conversions. The Company's UNIX-based processing engine for the HCC
service uses proprietary software to process commission information. The
Company's Customer Relations Center can access the processing engine to answer
questions regarding commissions from travel agencies. The HCC service also
utilizes an Informix database that stores transaction-specific information
regarding hotel stays and information regarding required currency conversions,
cleared checks, the source of reservations and hotel and travel agency profiles.
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<PAGE> 54
The HCC service gathers information from hotels monthly to process
commission payments and information statements. Participating hotels use the
Company's proprietary HCC software to either collect the data derived from a
hotel's property management system or compile data from each hotel property. In
some instances, hotels using an outside party's commission payment consolidation
service will pass on the information from the outside party to the HCC service.
As the information is gathered, the HCC service continually updates the
commissions payable and interfaces with Citibank regarding any required currency
conversions. The HCC service notifies participating hotels of the amount of
commissions payable generally on the tenth business day of each month. Those
hotels are required under contract to deliver funds to the Company within 48
hours, and Pegasus delivers the funds to Citicorp to process checks or
electronic wires to travel agencies. If a hotel fails to deliver funds to
Pegasus, Pegasus is not obligated to deliver commission payments on behalf of
the hotel to travel agencies. Citicorp and Perot Systems prepare payments and
information statements for travel agencies, and the payments and information
statements generally are sent out on the 15th business day of each month.
Under the Company's arrangement with Citicorp and Perot Systems, Citicorp
performs currency conversions, prepares checks and electronic wires and delivers
funds and information statements to travel agencies. Perot Systems prepares the
information statements that are sent by Citicorp on behalf of the Company. This
arrangement expires in December 1998. See "Risk Factors -- Dependence on Key
Customers and Third-Party Service Arrangements."
SYSTEMS MAINTENANCE AND DISASTER RECOVERY
Because large numbers of travel agencies, hotels and other customers depend
on the Company for real-time transaction processing services, system reliability
and uptime are critical to the Company's success. In 1997, the average uptime
across the 84 distinct connections to UltraSwitch was 99.8%, including as
downtime all scheduled and emergency downtime. The Company has entered into an
arrangement with REZsolutions, Inc. ("REZsolutions"), a stockholder of the
Company, to manage and operate certain equipment owned by Pegasus, which is
located at a site owned by REZsolutions in Phoenix, Arizona. An employee of the
Company oversees the services provided by REZsolutions, such as equipment
monitoring, assurance of power supply and communications link back up support.
The Company has entered into an agreement with Pyramid Technologies Corporation
for the provision of computer hardware maintenance and replacement and
mitigation of the potential effects of system downtime. In addition, the Company
has entered into an agreement under which Comdisco, Inc. will provide disaster
recovery services for the restoration of the Company's services as soon as
practicable. In connection with this agreement, Comdisco, Inc. is making
arrangements to provide full system redundancy within 24 hours in the event of a
site disaster. See "Risk Factors -- System Interruption and Security Risks."
RESEARCH AND DEVELOPMENT
The Company recognizes that its ability to maintain its position and grow
depends upon continued expansion of its services. Investments in development are
crucial to obtaining new customers and retaining existing customers. The
Company's research and development activities primarily consist of software
development, development of enhanced communication protocols and custom user
interfaces and database design and enhancement. In its research and development
process, the Company works in close collaboration with its customers to address
their specific needs. As of December 31, 1997, the Company employed 57 people in
its Information Technology Group and from time to time, supplements their
efforts with the use of independent consultants and contractors. This group is
comprised of information technology, services development, technical services
and product support personnel. The Company's total research and development
expense was $238,000, $2.1 million, $2.2 million and $1.8 million for 1994,
1995, 1996 and the nine months ended September 30, 1997, respectively.
COMPETITION
The Company faces significant competition in connection with its THISCO
hotel room reservation processing service. The principal competitor of the
Company's THISCO service is WizCom, which was a
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wholly owned indirect subsidiary of Avis. As a result of the acquisition of Avis
by HFS, in September 1996, WizCom became a wholly owned indirect subsidiary of
HFS. Although HFS has recently renewed its participation in the Company's HCC
service, HFS began moving its electronic hotel room reservation processing from
THISCO to WizCom in November 1997, and the Company expects that all HFS
electronic reservations with the exception of those being processed by the
Company's TravelWeb service will be moved to WizCom by the end of January 1998.
The Company has an agreement with HFS which requires HFS to pay for a certain
minimum level of THISCO processing services annually for the life of the
agreement. In 1996, revenues from HFS for electronic hotel room processing
services were $517,905 above the annual minimum fee under the agreement, which
was $182,700. HFS historically has generated more revenues for the Company than
any other hotel chain that is a customer and a stockholder of Pegasus. See
"Certain Transactions." HFS accounted for 12.3%, 9.5%, 4.7% and 3.8% of the
Company's total revenues during 1994, 1995, 1996 and the nine months ended
September 30, 1997, respectively. HFS currently uses and in the future could use
the technology utilized by WizCom to compete with certain of the Company's
current and future services. There can be no assurance that any additional
customers will not change their electronic reservation interface to WizCom or to
another similar service. Also, hotels can choose to connect directly to one or
more GDSs, thereby bypassing THISCO and eliminating the need to pay fees to the
Company. In addition, one or more GDSs can choose to bypass the THISCO service
and develop and operate a new common electronic interface to hotel central
reservation systems. Such competitors or their affiliates may have greater
financial and other resources than the Company. Factors affecting competitive
success of the electronic hotel room reservation processing service include
reliability, levels of fees, number of hotel properties on the system, ability
to provide a neutral, comprehensive interface between hotels and other
participants in the distribution of hotel rooms and ability to develop new
technological solutions. There can be no assurance that another participant in
the hotel room distribution process or a new competitor will not create services
with features that would reduce the attractiveness of the Company's services.
The Company's inability to compete effectively with respect to these services
could have a material adverse effect on the Company's financial condition and
results of operations. See "Risk Factors -- Competition."
The Company charges hotel participants certain fees for processing status
messages from hotel central reservation systems to GDSs. Recently, the Company
reduced certain status message fees. In addition, a hotel participant can choose
to use the Company's UltraSelect service to provide travel agencies direct
access through GDSs to its central reservation system, thereby reducing the need
to send status messages through the Company's THISCO service. There is no
assurance that the volume of and fees generated from status messages processing
will remain at the same or a higher level in the future. Any significant
decrease in the volume of status messages processed or in the amount of status
message fees generated could have a material adverse effect on the Company's
financial condition and results of operations. See "Business -- Services."
The Company believes that the costs involved in a hotel switching from
THISCO to another service may discourage any such decision. The Company believes
that WizCom, the Company's principal competitor in the provision of interfaces
between hotel reservation systems and GDSs, uses a single protocol that is
different from the multiple protocols employed by THISCO. Consequently, the
Company believes that to connect to WizCom, a hotel would be required to change
the protocol used by its central reservation system, as well as substantially
convert the message formats used by the hotel reservation system. If a hotel
desired to connect directly with GDSs, the protocols and the message formats of
the hotel's central reservation system would have to be revised to conform with
each separate GDS to which the hotel reservation system is connected. In
addition, the hotel would be responsible for the ongoing maintenance and
updating costs necessary to continue a direct connection with each GDS and would
have to absorb the costs to maintain a network with each GDS.
The market for the Company's TravelWeb and NetBooker services is highly
competitive. Current competition includes traditional telephone or travel agency
reservation methods and other Internet travel reservation services. There are a
large number of Internet travel-related services offered by the Company's
competitors, and many of these competitors are larger and have significantly
greater financial resources and name recognition than the Company. Several
competitive Web sites such as Travelocity (a site operated by The SABRE Group
Holdings, Inc.) and Expedia.com (a site operated by Microsoft Corporation) offer
a more comprehensive range of travel services than those provided by the
Company. The Company faces competition in the hotel room reservation business
not only from its current competitors but also from possible
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<PAGE> 56
new entrants including other Web sites. The costs of entry into the Internet
hotel room reservation business is relatively low. There can be no assurance
that the Company's Internet hotel room reservation services will compete
successfully. The failure of these services to compete successfully could have a
material adverse effect on the Company's financial condition and results of
operations. See "Risk Factors -- Competition."
The market for the Company's HCC service is competitive. The Company's
competitors in the commission processing business include NPC, WizCom and
Citicorp. NPC, a company that has traditionally provided car rental and cruise
line commission processing services, recently began offering its services to
hotels and travel agencies as well. WizCom recently announced that it is
introducing a commissions payment service that may be competitive with the HCC
service. Citicorp provides commission consolidation services to hotel chains. In
addition, hotels that are current or prospective customers of the HCC service
could decide to process commission payments without, or in competition with, the
HCC service. Some of these current or potential competitors have substantially
greater financial and other resources than the Company. Furthermore, while the
Company has agreements with all of its hotel customers for the HCC service, most
of the Company's travel agency customers are not obligated by any agreement with
the Company. If a significant percentage of these travel agencies were to cease
using the HCC commission processing service, the Company's financial condition
and results of operations could be materially adversely affected. See "Risk
Factors -- Competition."
GOVERNMENT REGULATION
The Company's primary customers are hotel chains and hotel representation
firms. The Company currently has as its stockholders 10 of the 15 leading hotel
chains in the world based on 1996 total revenues. While the Company believes
that it has been acting since its inception as an entity independent of its
stockholders, and its stockholders have not engaged in any anti-competitive
activities through or in connection with the Company, there can be no assurance
that federal, state or foreign governmental authorities, the Company's
competitors or its consumers will not raise anti-competitive concerns regarding
the Company's close relationship with its hotel stockholders. Any such action by
federal, state or foreign governmental authorities or allegations by third
parties could have a material adverse effect on the Company's financial
condition and results of operations. While certain aspects of the travel
industry are heavily regulated by the United States Government, the services
currently offered by the Company, including electronic room reservation
processing services, commission processing services and Internet-based
reservation services, have not been subject to any material industry-specific
government regulation. However, there can be no assurance that federal, state or
foreign governmental authorities will not attempt to regulate one or more of the
Company's current or future services. Due to the increasing popularity of the
Internet, it is possible that laws and regulations may be adopted with respect
to the Internet, covering issues such as privacy, pricing, content and quality
of products and services. The adoption of laws or regulations affecting the
Company's lines of business could reduce the rate of growth of the Company or
could otherwise have a material adverse effect on the Company's financial
condition and results of operations. See "Risk Factors -- Government
Regulation."
PROPRIETARY RIGHTS
The Company is constantly developing new processing technology and
enhancing existing proprietary technology. The Company has no patents. The
Company primarily relies on a combination of copyright, trade secrets,
confidentiality procedures and contractual provisions to protect its technology.
Despite these protections, it may be possible for unauthorized parties to copy,
obtain or use certain portions of the Company's proprietary technology. While
any misappropriation of the Company's intellectual property could have a
material adverse effect on the Company's competitive position, the Company
believes that protection of proprietary rights is less significant to the
Company's business than the continued pursuit of its operating strategies and
other factors, such as the Company's relationship with industry participants and
the experience and abilities of its key personnel.
The Company has registered "UltraSwitch," "TravelWeb," "UltraAccess," "HCC
Hotel Clearing Corporation," "HCC Link," "HCC Cash" and "Chain Link" as United
States federal trademarks and applications to register "UltraRes," "Click-It"
and "Pegasus" are pending with the United States Patent and
52
<PAGE> 57
Trademark Office. Trademark applications for "TravelWeb" also have been filed in
Canada and Europe. There can be no assurance that the Company's applications to
register such trademarks will be successful. The Company has no knowledge of any
infringement to or any prior claims of ownership of trademarks that would
materially adversely affect the Company's current operation. The Company pursues
and intends to continue to pursue registration of its trademarks whenever
possible and to vigorously defend its proprietary rights against infringement or
other threats to the greatest extent practicable under the laws of the United
States and other countries. See "Risk Factors -- Dependence on Proprietary
Technology; Risk of Infringement."
EMPLOYEES
At January 26, 1998, the Company had 105 employees, 99 of which were
located in the United States, with 59 persons in the Information Technology
Group, 25 persons performing sales and marketing, customer relations and
business development functions and the remainder performing corporate, finance
and administrative functions. The Company has six employees in England
performing international sales activities. The Company has no unionized
employees. The Company believes that its employee relations are satisfactory.
PROPERTIES
The Company's principal executive office is a leased facility with
approximately 29,800 square feet of space in Dallas, Texas. The Company leases
this space under a lease agreement that expires December 2002. The Company also
maintains an administrative and sales office in a leased facility with
approximately 3,300 square feet of space near London, England. The lease
agreement for the office in England expires in May 1998. Under an agreement with
REZsolutions, certain of the equipment owned by the Company is housed at a site
owned by REZsolutions in Phoenix, Arizona. The Company believes that its
existing facilities are well maintained and in good operating condition and are
adequate for its present and anticipated levels of operations.
LEGAL PROCEEDINGS
The Company is a party from time to time to certain routine legal
proceedings arising in the ordinary course of its business. Although the outcome
of any such proceedings cannot be predicted accurately, the Company does not
believe any liability that might result from such proceedings could have a
material adverse effect on the Company's financial condition and results of
operations.
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<PAGE> 58
MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS AND KEY EMPLOYEES
Executive officers, directors and other key employees of the Company, and
their ages as of January 26, 1998, are as follows:
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<S> <C> <C>
John F. Davis, III........................ 45 President, Chief Executive Officer, and
Director
Joseph W. Nicholson....................... 37 Chief Information Officer
Jerome L. Galant.......................... 48 Chief Financial Officer
Michael R. Donahue........................ 44 Chief Marketing Officer
Phillip A. Mytom-Hart..................... 44 Vice President, International Sales and
Marketing
M. Nicholas Jent.......................... 56 Vice President, Sales and Marketing
William S. Lush........................... 56 Vice President, Business Development
John W. Biggs(1).......................... 53 Director
Donald R. Dixon........................... 50 Director
William C. Hammett, Jr.(2)................ 51 Vice Chairman of the Board of Directors
I. Malcolm Highet(2)...................... 46 Director
Rockwell A. Schnabel(1)................... 61 Director
Paul J. Travers(1)(2)..................... 44 Chairman of the Board of Directors
Mark C. Wells............................. 48 Director
Bruce Wolff............................... 54 Director
</TABLE>
- ---------------
(1) Member of the Compensation Committee.
(2) Member of the Audit Committee.
John F. Davis, III has served as the President and Chief Executive Officer
of the Company since February 1989 and as a director of the Company since July
1995. Before joining Pegasus, Mr. Davis was the founder, President and director
of Advanced Telemarketing Company, a provider of inbound and outbound
telemarketing services. He was also one of the founders of 1-800-Flowers,
Limited, a company offering quality floral arrangements by telephone.
Joseph W. Nicholson has served as the Chief Information Officer of the
Company since 1989. Prior to joining Pegasus, he spent ten years at Texas
Instruments in various positions, including Systems Analyst and Systems Manager.
Jerome L. Galant has served as the Chief Financial Officer of the Company
since September 1996. From April 1996 to September 1996, Mr. Galant served as
the Chief Financial Officer of Personnel Security & Safety Systems, Inc., a
technology development company. From 1990 to February 1996, Mr. Galant served in
a variety of positions for The SABRE Group, including Managing Director,
Finance.
Michael R. Donahue has served as Chief Marketing Officer of the Company
since May 1997. From 1988 to May 1997, Mr. Donahue served as Vice President of
Marketing and Development for Lane Hospitality, a hotel management firm.
Phillip A. Mytom-Hart has served as the Vice President, International Sales
and Marketing of the Company since September 1993. From 1991 to September 1993,
Mr. Hart served as Vice President, Sales and Marketing for Hilton International.
M. Nicholas Jent has served as the Vice President, Sales and Marketing of
the Company since August 1992. From 1988 to March 1991, Mr. Jent served as
Senior Vice President, Sales and Marketing for Telesphere Communications, Inc.,
a long distance communications company.
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<PAGE> 59
William S. Lush has served as Vice President, Business Development of the
Company since May 1995. From 1990 to May 1995, Mr. Lush served as Vice
President, Service Development in the travel management services group of
American Express Travel Related Services.
John W. Biggs has served as a director of the Company since October 1995.
Mr. Biggs has served as Vice President, Travel and Hospitality for Computer
Sciences Corporation, a consulting firm, since August 1996. From April 1994 to
July 1996, Mr. Biggs served as Chief Operations Officer for Regency Systems
Solutions, an affiliate of Hyatt Hotels Corporation ("Hyatt"). From 1984 to
April 1994, Mr. Biggs served as Senior Vice President, Hotel Accounting and
Administration at Hyatt. Hyatt is a stockholder of the Company.
Donald R. Dixon has served as a director of the Company since June 1996.
Since 1993, Mr. Dixon has been associated with Trident Capital, L.P., a venture
capital firm ("Trident"), which he helped found. From 1988 to 1993, Mr. Dixon
served as Co-President of Partech International, a private equity fund manager
associated with Banque Paribas. Mr. Dixon serves on the Board of Directors of
Bank America Merchant Services, Inc., Platinum Software Corporation and several
privately held companies. Trident manages Information Associates, L.P. and
Information Associates, C.V., both of which are stockholders of the Company.
William C. Hammett, Jr. has served as a director and Vice Chairman of the
Board of the Company since October 1995. From September 1997, Mr. Hammett has
served as President of DB&K Enterprises, Inc., a private investment company.
From August 1996 through September 1997, Mr. Hammett served as Senior Vice
President and Chief Financial Officer of La Quinta Inns, Inc., which is a
stockholder of the Company. From June 1992 to August 1996, Mr. Hammett served as
Senior Vice President, Accounting and Administration of La Quinta Inns, Inc.
I. Malcolm Highet has served as a director of the Company since October
1995. Mr. Highet has served as Executive Vice President, Corporate Development
for Reed Elsevier Inc. since October 1996. From 1989 through October 1996, Mr.
Highet served as Chief Financial Officer and later as Chief Operations Officer
for a major division of Reed Elsevier Inc. Mr. Highet serves on the Board of
Directors for Reed Elsevier Inc. and REZsolutions, Inc., both of which are
stockholders of the Company.
Rockwell A. Schnabel has served as a director of the Company since June
1996. Since 1993, Mr. Schnabel has been associated with Trident, which he helped
found. From 1989 to 1992, Mr. Schnabel served as acting Secretary of Commerce
and the Deputy Secretary of Commerce during the Bush Administration. Mr.
Schnabel serves on the Board of Directors of Cyprus Amax Minerals Company,
International Game Technology, Inc., CSG Systems, Inc. and REZsolutions, Inc.
REZsolutions Inc. is a stockholder of the Company. Trident manages Information
Associates, L.P. and Information Associates C.V., both of which are stockholders
of the Company.
Paul J. Travers has served as a director and Chairman of the Board of the
Company since October 1995. Since January 1998, Mr. Travers has served as the
Chief Financial Officer of REZsolutions, Inc. From 1994 through December 1997,
Mr. Travers served as the Senior Vice President, Property Management for
Inter-Continental Hotels Corporation ("Inter-Continental"). From 1990 to 1994.
Mr. Travers served as Vice President, Finance and Group Controller of
Inter-Continental. Inter-Continental is a stockholder of the Company. Mr.
Travers serves on the Board of Directors for REZsolutions, Inc. REZsolutions,
Inc. is a stockholder of the Company.
Mark C. Wells has served as a director of the Company since September 1996.
Mr. Wells has served as Senior Vice President, Franchise Services for Promus
Hotel Corporation ("Promus") since February 1996. From April 1995 to February
1996, Mr. Wells served as Senior Vice President, Marketing for Promus. Promus is
a stockholder of the Company.
Bruce Wolff has served as a director of the Company since October 1995. Mr.
Wolff has served as Vice President, Distribution Sales and Marketing for the
lodging division of Marriott International Corporation, Inc. since 1986.
Marriott International Corporation, Inc., is a stockholder of the Company.
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<PAGE> 60
The Company currently has authorized nine directors. The terms of office of
the Board of Directors are divided into three classes: Class I, which consists
of Messrs. Biggs, Dixon and Hammett, will expire at the annual meeting of
stockholders to be held in 1998; Class II, which consists of Messrs. Highet,
Wells and Wolff, will expire at the annual meeting of stockholders to be held in
1999; and Class III, which consists of Messrs. Davis, Schnabel and Travers, will
expire at the annual meeting of stockholders to be held in 2000. At each annual
meeting of stockholders beginning with the 1998 annual meeting, the successors
to directors whose terms will then expire will be elected to serve from the time
of election and qualification until the third annual meeting following election
and until their successors have been duly elected and qualified, or until their
earlier resignation or removal. The officers of the Company are appointed by and
serve at the discretion of the Board of Directors. There are no family
relationships among the current directors and officers of the Company.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has a Compensation Committee, consisting of Messrs.
Biggs, Schnabel and Travers, and an Audit Committee, consisting of Messrs.
Hammett, Highet and Travers. The Compensation Committee makes recommendations to
the Board of Directors concerning salaries and incentive compensation for the
Company's officers and employees and administers the Company's 1996 Plan, 1997
Plan and 1997 Employee Stock Purchase Plan. Prior to November 1996, decisions
concerning the compensation of officers, including that of Mr. Davis, were made
by the Board of Directors as a whole. The Audit Committee makes recommendations
to the Board of Directors regarding the selection of independent auditors,
reviews the results and scope of the audit and other accounting related services
and reviews and evaluates the Company's internal control functions.
DIRECTORS' COMPENSATION
Directors currently do not receive any cash compensation from the Company
for their service as members of the Board of Directors, although they are
reimbursed for all reasonable expenses incurred in connection with the
performance of their duties as directors of the Company.
Effective September 23, 1997, each non-employee director was granted
options for 2,000 shares of Common Stock at an option price of 85% of the
trading price at the end of business on September 22, 1997. These options vest
on the date of the Company's annual stockholder meeting, currently scheduled for
May 4, 1998. These options were granted under an amendment to the 1997 Plan,
which is subject to approval at the Company's 1997 annual stockholders meeting.
These options will terminate if the amendment to the 1997 Plan is not approved
by the stockholders. Each year thereafter, upon election to the Board of
Directors, non-employee directors will be granted options for 2,000 shares of
Common Stock with an option price of 85% of the trading price at the end of
business on the date of grant and such options will vest 12 months following
such grant.
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<PAGE> 61
EXECUTIVE COMPENSATION
The following table sets forth for the periods indicated the compensation
earned by the Company's Chief Executive Officer and the four other most highly
compensated executive officers (collectively, the "Named Executive Officers")
whose salary and bonus for the fiscal year ended December 31, 1997 were in
excess of $100,000 for services rendered in all capacities to the Company for
that year:
SUMMARY COMPENSATION TABLE(1)
<TABLE>
<CAPTION>
LONG-
TERM
AWARDS
ANNUAL COMPENSATION ----------
------------------------------------------------ SECURITIES
OTHER ANNUAL UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION($)(2) OPTIONS(#) COMPENSATION($)(3)
--------------------------- ---- --------- -------- ------------------ ---------- ------------------
<S> <C> <C> <C> <C> <C> <C>
John F. Davis, III(4).............. 1997 $275,385 $175,000 $7,917 -- $ 9,397
President and Chief Executive 1996 261,708 302,208 7,500 300,000 10,511
Officer
Joseph W. Nicholson(4)............. 1997 175,159 74,750 7,596 -- 2,847
Chief Information Officer 1996 164,000 56,292 7,500 150,000 3,335
Jerome L. Galant(5)................ 1997 147,944 69,167 7,523 15,000 --
Chief Financial Officer 1996 45,313 14,014 1,889 53,333 --
M. Nicholas Jent................... 1997 151,722 53,288 7,576 10,000 --
Vice President, Sales and 1996 145,000 38,667 7,500 9,333 --
Marketing
Michael R. Donahue(6).............. 1997 116,135 43,657 4,305 53,333 --
Chief Marketing Officer
</TABLE>
- ---------------
(1) In accordance with the rules of the Securities and Exchange Commission (the
"Commission") the compensation described in this table does not include
medical, group life insurance or other benefits received by the Named
Executive Officers that are available generally to all salaried employees of
the Company, and certain perquisites and other personal benefits received by
the Named Executive Officers that do not exceed the lesser of $50,000 or 10%
of any such officer's salary and bonus disclosed in the table.
(2) Reflects matching contributions made by the Company pursuant to its 401(k)
Savings Plan.
(3) Includes premiums paid for life insurance policies for the benefit of the
Named Executive Officers.
(4) The salaries of Messrs. Davis and Nicholson were paid in accordance with the
terms of their respective employment agreements. The bonus of Mr. Davis
includes a one time $200,000 employment agreement signing bonus paid in
1996. See "-- Employment Agreements."
(5) The 1996 salary of Mr. Galant represents remuneration paid to him from
September 1996 to December 1996. Mr. Galant commenced employment with the
Company in September 1996.
(6) The 1997 salary of Mr. Donahue represents remuneration paid to him from May
1997 to December 1997. Mr. Donahue commenced employment with the Company in
May 1997.
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth each grant of stock options made during the
fiscal year ended December 31, 1997 to the Named Executive Officers:
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
-----------------------------------------------------------------
NUMBER OF SECURITIES % OF TOTAL EXERCISE MARKET PRICE GRANT DATE
UNDERLYING OPTIONS OPTIONS GRANTED PRICE PER ON DATE OF EXPIRATION PRESENT VALUE
NAME GRANTED(1) IN 1997(2) SHARE(3) GRANT(3) DATE(4) ($)(5)
---- -------------------- --------------- --------- ------------ ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Jerome L. Galant....... 15,000 4.5% $15.30 $16.00 12/31/06 $ 86,655
M. Nicholas Jent....... 10,000 3.0 11.05 13.00 12/31/06 53,500
Michael R. Donahue..... 53,333 16.1 5.25 8.00 12/31/06 210,665
</TABLE>
- ---------------
See footnotes on following page.
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<PAGE> 62
(1) The options held by Messrs. Galant, Jent and Donahue vest over a four-year
period with 25% of the shares vesting after one year and 1/16th of the
shares vesting each quarter for the next 12 quarters. Such options are
subject to acceleration upon an Acquisition Event as described under
"-- 1996 and 1997 Stock Option Plans."
(2) Based on an aggregate of 331,666 shares subject to options granted in 1997.
(3) The exercise price of the options held by Messrs. Galant and Donahue are
established by each of their employment agreements with the Company. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Overview" and Note 9 of Notes to Consolidated Financial
Statements. The market price for the Common Stock set forth in the table for
Messrs. Galant and Jent is based on the closing price of the Common Stock as
quoted on the Nasdaq National Market on the date of determination by
Compensation Committee. The market price for the Common Stock set forth in
the table for Mr. Donahue is based upon an appraisal performed by an
independent consulting firm engaged by the Company.
(4) Options may terminate before their expiration date upon the death,
disability or termination of employment of the optionee.
(5) These values are determined using the Black-Scholes Option Pricing Model.
The Black-Scholes Option Pricing Model is one of the methods permitted by
the Commission for estimating the present value of options. The
Black-Scholes Option Pricing Model is based on assumptions as to certain
variables as described below and it is not intended to estimate, and has no
direct correlation to, the value of stock options that an individual will
actually realize. The actual value of the stock options that a Named
Executive Officer may realize, if any, will depend on the excess of the
market price on the date of exercise over the exercise price. The values
listed above for Mr. Donahue were based on the following assumptions:
volatility -- 0.0; risk free rate of return -- 6.5%; dividend yield -- 0.0%;
and expected life -- 4 years. The values listed above for Messrs Galant and
Jent were based on the following assumptions: volatility -- 30%; risk free
rate of return -- 6.5%; dividend yield -- 0.0%; and expected life -- 4
years.
AGGREGATE FISCAL YEAR-END OPTION VALUES
The following table sets forth, for each of the Named Executive Officers,
information concerning the number and value of securities underlying unexercised
options held on December 31, 1997. No options were exercised by such persons
during 1997.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING OPTIONS AT YEAR VALUE OF IN-THE-MONEY OPTIONS
END AT YEAR-END (1)
---------------------------- ------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ------------- ------------ --------------
<S> <C> <C> <C> <C>
John F. Davis, III................ 112,500 187,500 $1,447,313 $2,412,188
Joseph W. Nicholson............... 56,250 93,750 723,656 1,206,094
Jerome L. Galant.................. 16,667 51,666 214,421 471,708
M. Nicholas Jent.................. 2,917 16,416 34,333 113,766
Michael R. Donahue................ -- 53,333 -- 513,330
</TABLE>
- ---------------
(1) Based on the difference between the option exercise price and the closing
sale price of $14.88 of the Company's Common Stock as reported on the Nasdaq
National Market on December 31, 1997, the last trading day prior to the
closing of the Company's 1997 fiscal year multiplied by the number of shares
underlying the options.
1996 AND 1997 STOCK OPTION PLANS
Scope. The Company has a 1996 Stock Option Plan (the "1996 Plan") and a
1997 Stock Option Plan (the "1997 Plan"). The Board of Directors recently has
approved an amendment (the "Amendment") to the 1997 Plan. See
"Management -- Directors Compensation." The 1996 Plan and the 1997 Plan
(collectively, the "Plans") are designed to attract and retain qualified and
competent personnel for positions of substantial responsibility and to provide
additional incentive to employees and consultants of the Company. The Plans have
substantially the same provisions, which are set forth herein. Options granted
under the Plans may be
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<PAGE> 63
Incentive Stock Options or Nonstatutory Stock Options, as determined by the
Administrator (as hereinafter defined) at the time of grant and subject to the
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"). The 1996 and 1997 Plans have reserved for issuance 866,667 shares and
333,333 shares of Common Stock, respectively. As of December 31, 1997, options
covering 863,278 and 219,000 shares of Common Stock are issued and unexercised
under the 1996 Plan and 1997 Plan, respectively, and options covering 1,333
shares of Common Stock have been issued and exercised under the 1996 Plan. If an
option granted under the Plans expires or becomes unexercisable without having
been exercised in full, or is surrendered pursuant to an option exchange
program, the unpurchased shares may be available for future grants or sale under
the Plans. The 1996 and 1997 Plans will terminate on June 24, 2006 and March 25,
2007, respectively.
Eligibility. Persons eligible to participate in the Plans include all
employees and all consultants of the Company. For purposes of describing the
Plans, the term employee means any person employed by the Company or any parent
or subsidiary of the Company. For purposes of describing the Plans, the term
consultant means any person who is engaged by the Company or any parent or
subsidiary of the Company to render consulting or advisory services and is
compensated for such services, and any director of the Company who is not
compensated for his or her services or is paid only a director's fee by the
Company. Non-Statutory Stock Options may be granted to employees and
consultants. Incentive Stock Options may be granted only to employees.
Administration. The Plans are administered by the Board of Directors or the
Committee appointed by the Board (the "Administrator"). The Administrator has
the authority to grant options under the Plans and to determine the vesting
schedule and the exercise price of the options. The Administrator also has full
power and authority to construe, interpret and administer the Plans.
Option Exercise Price. The exercise price per share for the shares to be
issued pursuant to exercise of an option under the Plans shall be such price as
is determined by the Administrator. In the case of an Incentive Stock Option
granted to an employee, who at the time of the grant owns stock representing
more than 10% of the voting power of all classes of stock of the Company or any
parent or subsidiary, the exercise price per share shall be no less than 110% of
the fair market value per share on the date of grant. In the case of an
Incentive Stock Option granted to any employee other than an employee described
in the foregoing sentence, the per share exercise price shall be no less than
100% of the fair market value per share on the date of grant. In the case of a
Non-Statutory Stock Option, the per-share exercise price shall be determined by
the Administrator and shall be no less than 50% of the fair market value.
Adjustments, Terminations and Amendment. In the event of any change in the
Company's capitalization, including any stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company, appropriate adjustments will be
made to the number of shares available under the Plans as well as the price per
share of Common Stock covered by each outstanding option. Upon the occurrence of
an acquisition event ("Acquisition Event") which shall mean (i) certain mergers
or consolidations of the Company with or into another corporation; (ii) the sale
of substantially all of the assets of the Company; (iii) the complete
liquidation of the Company; or (iv) the acquisition by another entity of
beneficial ownership of the Company's securities representing 50% or more of the
combined voting power of the Company's then outstanding securities, the Board of
Directors of the Company may (i) provide that each outstanding option shall be
assumed and/or an equivalent option be substituted by the successor corporation
or an affiliate thereof; (ii) upon written notice to the optionees, provide that
all options then unexercised will become exercisable in full as of a specified
date prior to the Acquisition Event and will terminate immediately prior to the
consummation of such Acquisition Event; or (iii) in the event of an Acquisition
Event under the terms of which holders of Common Stock will receive a cash
payment for each share of Common Stock surrendered, provide that all outstanding
options shall terminate upon consummation of such Acquisition Event, and each
optionee shall receive, in exchange therefor, a cash payment equal to the amount
(if any) by which the acquisition price multiplied by the number of shares of
Common Stock subject to such outstanding Options (whether or not then
exercisable), exceeds the aggregate exercise price of such options. The Plans
may be suspended, terminated, altered or amended in any way by the Board of
Directors,
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<PAGE> 64
provided that, stockholder approval of any plan amendment will be required to
the extent necessary and desirable to comply with applicable provisions of the
Exchange Act, the Code or other legal requirements. No suspension, termination,
alteration or amendment of the Plans may alter or impair the rights of any
optionee under options previously granted.
1997 EMPLOYEE STOCK PURCHASE PLAN
Scope. The 1997 Employee Stock Purchase Plan (the "Employee Plan") has been
adopted by the Company, subject to stockholder approval at the Company's next
annual meeting of stockholders. The Employee Plan provides a method for eligible
employees of the Company to acquire a proprietary interest in the Company
through the regular and systematic purchase of shares of the Company's Common
Stock by means of voluntary payroll deductions. The purpose of the Employee Plan
is to encourage and facilitate the purchase of the Company's Common Stock by
eligible employees as an incentive for employees so that they may share in the
growth of the Company.
The right of a participating employee to purchase shares of Common Stock
under the Employee Plan is referred to as an "option." The Employee Plan
authorizes up to 500,000 shares of Common Stock to be granted as options to
eligible employees. The Employee Plan does not have a stated term.
Offerings Under the Employee Plan. Each year the Company will offer
eligible employees the option to purchase Common Stock through voluntary payroll
deductions of up to ten percent (10%) of their compensation. The purchase price
for a share of Common Stock under the Employee Plan will be 85% of the closing
price of the Common Stock on Nasdaq or any other national securities exchange at
the beginning of each year of the Employee Plan (the "Offer Commencement Date")
or at the end of that year (the "Offering Termination Date"), whichever is
lower. The Offering Commencement Date is November 15 of each year of the
Employee Plan, and the Offering Termination Date is November 14 of the year
following the Offering Commencement Date. Eligible employees may purchase up to
that number of full shares that can be purchased at the option price with an
amount not to exceed ten percent (10%) of their compensation. The maximum annual
deduction allowed per employee is $25,000.
Unless the participant provides prior notice otherwise and subject to the
limits on the number of shares available under the Employee Plan and amounts
that can be contributed by a participant under the Employee Plan, all funds
contributed by a participant as of the Offering Termination Date will be applied
to purchase whole shares of Common Stock at a price equal to the lower of (i)
85% of the closing price of the Common Stock on the Offering Commencement Date
or (ii) 85% of the closing price of the Company's Common Stock on the Offering
Termination Date.
Eligibility. The employees eligible to participate in the Employee Plan
include all employees of the Company and its subsidiaries who have completed 90
days of employment. Notwithstanding the foregoing, no employee may participate
in the Employee Plan to the extent that such employee will, immediately after
the grant, own (within the meaning of Section 424(d) of the Code) stock and/or
hold outstanding options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company, or to the
extent such employee's rights to purchase stock under employee stock purchase
plans of the Company will accrue at a rate that exceeds $25,000 in fair market
value (determined at the time such option is granted) for each calendar year in
which such option is outstanding.
Administration. The Employee Plan is administered by the Compensation
Committee, which has full power and authority to interpret and construe any and
all provisions of the Employee Plan, to adopt rules and regulations for
administering the Employee Plan and to make all other determinations deemed
necessary or advisable for administering the Employee Plan. The expenses of the
administration of the Employee Plan, including interest paid on payroll
deduction accounts are borne by the Company.
Adjustments; Termination and Amendment. In the event of any change in the
Company's capitalization, including any merger, consolidation, acquisition or
stock split, appropriate adjustments will be made to the number and class of
shares available under the Employee Plan, the price per share and the associated
share purchase rights. The Board of Directors may terminate or amend the
Employee Plan; provided, however, that,
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<PAGE> 65
in the absence of stockholder approval, the Board may not: (i) increase the
maximum number of shares which may be issued during a Employee Plan year,
subject to certain exceptions or (ii) amend the requirements as to the class of
employees eligible to purchase stock under the Employee Plan or permit the
members of the Committee to purchase stock under the Employee Plan. No
termination, modification, or amendment of the Employee Plan may, without the
consent of an employee then having an option under the Employee Plan to purchase
stock, adversely affect the rights of such employee under such option.
401(k) SAVINGS PLAN
The Company sponsors a qualified defined contribution retirement plan,
called the Pegasus Systems, Inc. 401(k) Savings Plan (the "401(k) Savings Plan")
under which eligible employees may elect to defer their current compensation by
up to certain statutorily prescribed annual limits ($9,500 in 1997) and to
contribute such amount to the 401(k) Savings Plan. The 401(k) Savings Plan
permits, but does not require, additional matching contributions by the Company
on behalf of all participants in the 401(k) Savings Plan. The 401(k) Savings
Plan is intended to qualify under Section 401 of the Code, so that contributions
by employees or by the Company to the 401(k) Savings Plan, and income earned on
such contributions, are not taxable to employees until withdrawn, and so that
contributions by the Company will be deductible by the Company when made. The
trustee for the 401(k) Savings Plan is Standard Insurance Company. The 401(k)
Savings Plan permits employees to direct investment of their accounts in the
401(k) Savings Plan among a selection of five mutual funds.
EMPLOYMENT AGREEMENTS
The Company is a party to employment agreements with each of Messrs. Davis
and Nicholson. Each agreement has a term extending through June 25, 2000, and
automatically renews for additional one year terms if neither the Company nor
the employee has notified the other party 60 days prior to the date of renewal
of its intention to terminate the agreement. The agreements provide that Messrs.
Davis and Nicholson will receive base annual salaries of $275,000 and $175,000,
respectively, and will be eligible to receive incentive compensation determined
by the Compensation Committee of the Board of Directors based on the achievement
of performance objectives established by the Compensation Committee from time to
time. The base annual salaries are subject to increase annually at the
discretion of the Compensation Committee. The agreements also provide that
Messrs. Davis and Nicholson will receive options for a total of 300,000 and
150,000 shares of Common Stock, respectively, at an exercise price of $2.01 per
share. These options were granted on June 25, 1996. The options will fully vest
no later than June 25, 2000. Each agreement obligates the Company to the extent
commercially practicable to maintain life insurance with respect to Messrs.
Davis and Nicholson. In accordance with the employment agreement with Mr. Davis,
the Company currently maintains coverage with respect to Mr. Davis in the amount
of $2.5 million with the Company as the sole beneficiary. In accordance with the
employment agreement with Mr. Nicholson, the Company currently maintains
coverage with respect to Mr. Nicholson in the amount of $1.0 million with the
Company as the sole beneficiary.
Each employment agreement provides that either the Company or the employee
has the right to terminate the employment at any time during the term of the
agreement with or without cause by delivering written notice of termination to
the other 30 days prior to the date of termination. Each agreement provides for
a severance payment if the agreement is terminated by the Company without cause.
Under such circumstances, Messrs. Davis and Nicholson would receive their base
annual salary for a period of 12 months following the date of termination,
payable over such 12-month period at such times as executives of the Company
receive their regular salary payments; all accrued salary, any benefits under
any plans of the Company in which the employee is a participant to the full
extent of such employee's rights under such plans and any appropriate
out-of-pocket business expense reimbursements; and, vesting of the options
granted under the applicable employment agreement shall accelerate so that (i)
if termination of employment occurs prior to July 25, 1999, such employee's
options shall vest for an additional 75,000 and 37,500 shares of Common Stock,
respectively (in addition to shares vested as of the date of termination), or
(ii) if termination of employment occurs on or after July 25, 1999, such
employee's options shall fully vest. If the agreements are
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<PAGE> 66
terminated voluntarily either by the employee or by the Company with cause, or
by reason of death or disability, then Mr. Davis or Mr. Nicholson, as the case
may be, or their respective estate will be entitled to payment of all accrued
salary, vesting of the options granted through the date of termination only, any
further benefits under any plans of the Company in which such person is a
participant to the full extent of such person's rights under such plans through
the date of termination only, and any appropriate out-of-pocket business expense
reimbursements.
The Company has entered into a letter agreement with Jerome L. Galant,
Chief Financial Officer. The agreement provides that Mr. Galant will receive
annual base salary of $145,000 (subject to adjustment), plus a bonus of up to
30% of such annual base salary. Pursuant to this agreement, Mr. Galant has been
granted options to purchase up to 53,333 shares of Common Stock at an exercise
price of $2.01 per share.
The Company has entered into a letter agreement with Michael R. Donahue,
Chief Marketing Officer. The agreement provides that Mr. Donahue will receive
annual base salary of $165,000 (subject to adjustment), and will be eligible to
receive incentive compensation based on the achievement of certain performance
objectives. Pursuant to this agreement, Mr. Donahue has been granted options to
purchase up to 53,333 shares of Common Stock at an exercise price of $5.25 per
share. These options will vest over four years. In addition, under certain
circumstances Mr. Donahue will receive a severance payment equal to (i) six-
months base salary if the employment terminates after 12 months; (ii)
nine-months base salary if employment terminates after 24 months; and (iii)
twelve-months base salary if employment terminates after 36 months.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
As permitted by the Delaware General Corporation Law, the Company's Second
Amended and Restated Certificate of Incorporation provides that no director of
the Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of the law, (iii) unlawful payments of dividends or
unlawful stock repurchases or redemptions, or (iv) any transaction from which
the director derived an improper personal benefit. In addition, the Company
maintains directors' and officers' liability insurance. There is no pending
litigation or proceeding involving a director, officer or employee of the
Company regarding which indemnification is sought, nor is the Company aware of
any threatened litigation that may result in claims for indemnification.
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<PAGE> 67
CERTAIN TRANSACTIONS
Since its inception, the Company has relied in part on stockholder loans to
fund its capital needs. The Company repaid all outstanding amounts relating to
such loans with a portion of the proceeds of the Company's initial public
offering of its common stock other than the loan from REZsolutions, Inc.
reflected in the table below with an interest rate of Prime plus 3%, which was
repaid in March 1997. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources." The
following table sets forth certain information concerning loans made by certain
stockholders and the amount of principal and interest paid to such stockholders
during the periods indicated.
<TABLE>
<CAPTION>
AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL
LARGEST AMOUNT OF AND INTEREST PAID IN AND INTEREST PAID IN
LOANS OUTSTANDING YEAR ENDED DEC. 31, NINE MONTHS ENDED
(INCLUDING ACCRUED INTEREST ------------------------------ SEPTEMBER 30,
STOCKHOLDERS/LENDERS INTEREST)(1) RATE(2) 1994 1995 1996 1997
-------------------- ------------------ ---------- -------- -------- -------- --------------------
<S> <C> <C> <C> <C> <C> <C>
Reed Travel Group(3)..................... $4,536,482 Prime + 2% $588,426 $463,362 $441,241 $4,524,941
Best Western International, Inc.......... 185,878 Prime + 1% -- -- -- 132,493
Choice Hotels International, Inc. ....... 91,541 Prime + 1% -- -- -- 64,576
Forte, Inc. ............................. 90,976 Prime + 1% -- -- -- 63,902
HFS Incorporated......................... 174,337 Prime + 1% 12,710 36,574 -- 71,692
Hilton Hotels Corporation................ 86,093 Prime + 1% 3,116 10,263 -- 47,991
Hyatt Hotels Corporation................. 180,790 Prime + 1% -- 22,628 -- 104,176
Inter-Continental Hotels Corporation..... 177,039 Prime + 1% 2,653 9,267 -- 117,849
La Quinta Inns, Inc. .................... 176,388 Prime + 1% 2,682 7,967 -- 117,904
Marriott International Corporation,
Inc..................................... 86,044 Prime + 1% 6,012 23,629 -- 27,913
Promus Hotels, Inc. ..................... 167,504 Prime + 1% -- -- -- 107,142
ITT Sheraton Corporation................. 185,311 Prime + 1% -- -- -- 131,816
REZsolutions(4).......................... 94,148 Prime + 1% -- -- -- 67,622
REZsolutions(4).......................... 215,503 Prime + 3% -- 16,151 205,514 --
Westin Hotels & Resorts.................. 184,215 Prime + 1% -- -- -- 130,576
</TABLE>
The Company derives a substantial portion of its revenue from stockholders
and their affiliated companies. See Note 14 of Notes to Consolidated Financial
Statements for information concerning related party transactions. The following
table sets forth the amount of revenues the Company received in 1994, 1995 and
1996 and the nine months ended September 30, 1997 from certain stockholders of
the Company that received THISCO, HCC or TravelWeb services:
<TABLE>
<CAPTION>
YEAR ENDED DEC. 31,
-------------------------------- NINE MONTHS ENDED
STOCKHOLDER 1994 1995 1996 SEPTEMBER 30, 1997
----------- -------- -------- -------- ------------------
<S> <C> <C> <C> <C>
Best Western International, Inc. ....... $395,208 $425,022 $577,894 $696,554
Choice Hotels International, Inc. ...... 349,943 397,340 516,666 374,557
Forte, Inc. ............................ 155,766 217,563 429,098 396,986
Hilton Hotels Corporation............... 178,595 265,305 410,844 224,390
Hyatt Hotels Corporation................ 380,149 535,983 633,818 592,473
Inter-Continental Hotels Corporation.... 121,751 275,284 380,287 289,808
La Quinta Inns, Inc. ................... 122,662 218,782 208,037 246,279
Marriott International Corporation,
Inc................................... 164,590 205,664 425,673 283,159
Promus Hotels, Inc. .................... 451,901 533,629 644,815 558,982
REZsolutions, Inc.(4) .................. 294,612 311,957 412,695 588,084
ITT Sheraton Corporation................ 468,800 487,783 623,985 500,179
Westin Hotels & Resorts................. 114,080 173,576 453,020 363,695
</TABLE>
- ---------------
(1) Sets forth as of September 30, 1997 the largest aggregate amount of
indebtedness outstanding since January 1994. The maturity date for the loan
from Reed was June 30, 2001. The maturity date for each of the remaining
loans was July 21, 2000.
(2) "Prime" means the prime rate of interest published in the Wall Street
Journal. As of September 30, 1997, such prime rate was 8.5% per annum.
(3) Reed Travel Group, a division of Reed Elsevier Inc. and a stockholder of the
Company, holds certain license rights to use the Company's UltraSwitch
technology for applications unrelated to the hotel industry. See
"Business -- Technology and Operations." I. Malcolm Highet is a director of
the Company and is associated with Reed Elsevier Inc. See "Management" and
"Principal and Selling Stockholders."
(4) REZsolutions, Inc. was formed as a result of the merger of Anasazi, Inc. and
Utell International.
Effective in July 1995, the Company issued 4,934,667 shares of Common Stock
in exchange for all of the outstanding capital stock of THISCO and 83.3% of the
outstanding capital stock of HCC (the "Reorganiza-
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<PAGE> 68
tion"). Lodging Network, Inc. ("LNI"), a stockholder of the Company, retained
certain shares of HCC preferred stock, representing 16.7% of the outstanding
capital stock of HCC. In conjunction with the Reorganization, LNI was granted an
option (the "LNI Option") expiring in July 1998 to exchange its interest in HCC
for 448,667 shares of the Company's Common Stock. In June 1996, the Company
purchased the shares of HCC preferred stock held by LNI for $2.0 million and
89,733 shares of Common Stock, and the LNI Option was canceled. See Notes 2 and
3 of Notes to the Consolidated Financial Statements.
Prior to the Reorganization, HCC offered a special bonus plan for
management of HCC, including Messrs. Davis, Nicholson, Jent and Hart. As part of
the Reorganization in 1995, HCC management agreed to forfeit their rights to
participate in the bonus plan to HCC in return for a cash payment and the
opportunity to purchase an aggregate of 283,333 shares of the Company's Common
Stock for $570,874.
In June 1996, Information Associates, L.P. and Information Associates, C.V.
purchased 1,538,462 shares of the Company's Series A Preferred Stock for $4.88
per share or $7,500,005, representing 22.9% of the shares of the Company's
capital stock outstanding after the purchase. Information Associates, L.P. and
Information Associates, C.V. are affiliates of Trident. Donald R. Dixon and
Rockwell A. Schnabel, two directors of the Company, are associated with Trident.
See "Management" and Note 8 of Notes to the Consolidated Financial Statements.
REZsolutions, Inc., a stockholder of the Company, provides services to the
Company which include facility management and maintenance, consulting and
software development. During 1994, 1995, 1996 and during the nine months ended
September 30, 1997, the Company paid $526,641, $578,469, $716,870 and $226,335,
respectively, for these services. In the past three fiscal years, the Company
has purchased furniture and interior design items from Right Angle, a company
owned by Mrs. Leah Davis, the spouse of Mr. John F. Davis, III, the Chief
Executive Officer, President and a director of the Company. Mrs. Davis received
commissions not in excess of 15% of the amount of such purchases. The total
payments made to Right Angle and Mrs. Davis for furniture, decorative items and
commissions in 1995, 1996 and 1997 were $16,908, $121,425 and $4,946,
respectively. The Company believes that the terms of its transactions with Right
Angle were at least as favorable to the Company as terms that could have been
negotiated with an unrelated third party.
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<PAGE> 69
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the Company's Common Stock as of December 31, 1997 and as adjusted
to reflect the sale of shares in this offering by (i) each person known by the
Company to own beneficially more than 5% of the outstanding Common Stock, (ii)
each of the Company's directors, (iii) each of the Named Executive Officers,
(iv) all directors and executive officers of the Company as a group and (v) each
Selling Stockholder.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED AFTER THE
THE OFFERING(1) NUMBER OF OFFERING(1)(2)
------------------- SHARES -------------------
NAME NUMBER PERCENT BEING OFFERED NUMBER PERCENT
---- --------- ------- ------------- -------- --------
<S> <C> <C> <C> <C> <C>
Entities affiliated with Trident
Capital(3)............................ 1,538,462 15.1% 600,000 938,462 9.0%
Best Western International.............. 426,204 4.2 200,000 226,204 2.2
Reed Travel Group (A division of Reed
Elsevier Inc.)(4)..................... 382,386 3.8 191,193 191,193 1.8
REZsolutions, Inc.(5)................... 336,801 3.3 168,400 168,401 1.6
Westin Hotels & Resorts................. 316,548 3.1 158,274 158,274 1.5
Inter-Continental Hotels................ 302,957 3.0 151,479 151,478 1.4
Choice Hotels International............. 170,800 1.7 85,400 85,400 *
Hilton Hotels International............. 170,800 1.7 85,400 85,400 *
Marriott International Corporation,
Inc.(6)............................... 170,800 1.7 85,400 85,400 *
John F. Davis, III(7)................... 291,000 2.8 75,000 216,000 2.0
Joseph W. Nicholson(7).................. 107,834 1.1 11,333 96,501 *
M. Nicholas Jent(7)..................... 36,917 * -- 36,917 *
Phillip A. Mytom-Hart(7)................ 34,992 * 7,800 27,192 *
Jerome L. Galant(7)..................... 18,889 * -- 18,889 *
William S. Lush(7)...................... 14,583 * -- 14,583 *
Michael R. Donahue...................... -- * -- -- *
Bryan D. Donowho(8)..................... 21,641 * 4,233 17,408 *
John W. Biggs........................... -- * -- -- *
Donald R. Dixon(3)...................... -- * -- -- *
William C. Hammett, Jr. ................ -- * -- -- *
I. Malcolm Highet(4)(5)................. -- * -- -- *
Rockwell A. Schnabel(3)(5).............. -- * -- -- *
Paul J. Travers(5)...................... -- * -- -- *
Mark C. Wells........................... -- * -- -- *
Bruce Wolff(6).......................... -- * -- -- *
Directors and executive officers as a
group (15 persons)(7)................. 504,214 4.8 94,133 410,081 3.8
</TABLE>
- ---------------
* Less than 1%
(1) Beneficial ownership is determined in accordance with the rules of the
Commission and generally includes voting or investment power with respect to
securities. Except as indicated by footnote and subject to community
property law where applicable, the Company believes, based on information
furnished by such persons, that the persons named in the table above have
sole voting and investment power with respect to all shares of Common Stock
shown as beneficially owned by them. Percentage of beneficial ownership is
based on 10,181,045 shares of Common Stock outstanding as of December 31,
1997, and 10,457,133 shares of Common Stock outstanding after the completion
of this offering. In computing the number of shares of Common Stock subject
to options held by that person that are exercisable within 60 days of
December 31, 1997, such shares are deemed outstanding. Such shares, however,
are not deemed outstanding for the purpose of computing the percentage
ownership of any other person.
(2) Assumes no exercise of the underwriters' over-allotment option.
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<PAGE> 70
(3) Of the total shares indicated as beneficially owned by entities affiliated
with Trident Capital, Information Associates, L.P. owns 1,496,693 shares and
Information Associates, C.V. owns 41,769 shares. Information Associates,
C.V. is a Netherlands Antilles limited partnership and Information
Associates, L.P. is a Delaware limited partnership. The general partner of
each of these entities is Trident Capital Management, L.L.C., a Delaware
limited liability company ("Trident Capital"), the members of which include
Donald R. Dixon and Rockwell A. Schnabel, directors of the Company. The
address of Trident Capital is 2480 Sand Hill Road, Suite 100, Menlo Park,
California 94025.
(4) Mr. Highet, a director of the Company, is a director and Executive
Vice-President of Reed Elsevier, Inc.
(5) REZsolutions, Inc. was formed as a result of the merger of Anasazi, Inc. and
Utell International. Messrs. Travers, Highet and Schnabel, directors of the
Company, are directors of REZsolutions, Inc., and Mr. Travers, the Company's
Chairman of the Board, serves as the Chief Financial Officer of
REZsolutions, Inc.
(6) Mr. Wolff, a director of the Company, serves as Vice President, Distribution
Sales and Marketing of the lodging division of Marriott International
Corporation, Inc.
(7) Includes exercisable options held by Messrs. Davis, Nicholson, Galant, Jent,
Hart and Lush to purchase 112,500, 56,250, 16,667, 2,917, 3,792 and 14,583
shares of Common Stock, respectively, and options exercisable within 60 days
of December 31, 1997 held by Messrs. Davis, Nicholson and Galant of 12,500,
6,250 and 2,222 shares of Common Stock, respectively.
(8) Mr. Donowho serves as the Company's Vice President Information Technology.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 100,000,000 shares of
Common Stock, $.01 par value per share ("Common Stock"), and 2,000,000 shares of
Preferred Stock, $.01 par value per share (the "Preferred Stock"), issuable in
series. As of December 31, 1997, there were outstanding 10,181,045 shares of
Common Stock.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. The holders of
Common Stock are not entitled to cumulate voting rights with respect to the
election of directors, and as a consequence, minority stockholders will not be
able to elect directors on the basis of their votes alone. Subject to
preferences that may be applicable to any then outstanding shares of Preferred
Stock, holders of Common Stock are entitled to receive ratably such dividends as
may be declared by the Board of Directors out of funds legally available
therefor. See "Dividend Policy." In the event of a liquidation, dissolution or
winding up of the Company, holders of the Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of any then outstanding Preferred Stock. Holders of Common Stock have
no preemptive, conversion or other rights to subscribe for additional securities
of the Company. There are no redemption or sinking fund provisions applicable to
the Common Stock. All outstanding shares of Common Stock are, and all shares of
Common Stock to be outstanding upon completion of this offering will be, validly
issued, fully paid and nonassessable.
PREFERRED STOCK
The Board of Directors has the authority, without further action by the
stockholders, to issue up to 2,000,000 shares of Preferred Stock in one or more
series and to fix the rights, preferences, privileges and restrictions thereof,
including dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, sinking fund terms and the number of shares
constituting any series or the designation of such series, without any further
vote or action by stockholders. The issuance of Preferred Stock could adversely
affect the voting power of holders of Common Stock and the likelihood that such
holders will receive dividend payments and payments upon liquidation and could
have the effect of delaying, deferring or preventing a change in control of the
Company. There are no shares of Preferred Stock outstanding and the Company has
no present plan to issue any shares of Preferred Stock.
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<PAGE> 71
WARRANTS
In connection with the Distribution Services Agreement entered into in May
1997 between the Company and Holiday Inn, the Company issued to Holiday Inn
warrants for the purchase of up to 345,723 shares of the Company's Common Stock.
The warrants are exercisable at any time during the two year period ending May
12, 1999 at an exercise price equal to $7.20 per share.
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
Delaware Anti-Takeover Statute. The Company is subject to the provisions of
Section 203 of the Delaware General Corporation Law, an anti-takeover law. In
general, the statute prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. For purposes of Section 203, a "business combination"
includes a merger, asset sale or other transaction resulting in a financial
benefit to the interested stockholder, and an "interested stockholder" is a
person who, together with affiliates and associates, owns (or within three years
prior, did own) 15% or more of the corporation's voting stock.
Certificate of Incorporation. The Certificate of Incorporation (the
"Certificate") provides (i) for the authorization of the Board of Directors to
issue, without further action by the stockholders, up to 2,000,000 shares of
Preferred Stock in one or more series and to fix the rights, preferences,
privileges and restrictions thereof, (ii) that any action required or permitted
to be taken by stockholders of the Company must be effected at a duly called
annual or special meeting of the stockholders and may not be effected by a
consent in writing, (iii) that special meetings of stockholders of the Company
may be called only by the Chairman of the Board, the Chief Executive Officer or
a majority of the members of the Board of Directors, (iv) for a classified Board
of Directors, (v) that vacancies on the Board of Directors, including newly
created directorships, can be filled only by a majority of the directors then in
office, and (vi) that directors of the Company may be removed only for cause and
only by the affirmative vote of holders of at least two-thirds of the
outstanding shares of voting stock, voting together as a single class.
These provisions are intended to enhance the likelihood of continuity and
stability in the composition of the Board of Directors and in the policies
formulated by the Board of Directors and to discourage certain types of
transactions that may involve an actual or threatened change of control of the
Company. These provisions are designed to reduce the vulnerability of the
Company to an unsolicited proposal for a takeover of the Company that does not
contemplate the acquisition of all of its outstanding shares, or an unsolicited
proposal for the restructuring or sale of all or part of the Company. Such
provisions, however, could discourage potential acquisition proposals and could
delay or prevent a change in control of the Company. Such provisions may also
have the effect of preventing changes in the management of the Company. See
"Risk Factors -- Anti-Takeover Matters."
LIMITATIONS ON DIRECTOR LIABILITY
The Certificate provides that, to the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may
hereafter be amended, directors of the Company will not be liable to the Company
or its stockholders for monetary damages for breach of fiduciary duty as a
director.
REGISTRATION RIGHTS
Pursuant to an agreement between the Company and the holders (the
"Holders") of approximately 4,332,756 shares of Common Stock (the "Registrable
Securities"), the Holders are entitled to certain rights with respect to the
registration of such shares under the Securities Act. If the Company proposes to
register any of its securities under the Securities Act (other than a
registration on a Form S-3 or any successor form), either for its own account or
for the account of other Holders exercising registration rights, the Holders are
entitled to notice of such registration and are entitled, subject to certain
limitations, to include shares of Registrable Securities therein. Additionally,
the Holders are entitled to certain demand registration rights pursuant to which
they may require the Company to file a registration statement under the
Securities Act
67
<PAGE> 72
(other than a registration on a Form S-3 or any successor forms) at the
Company's expense with respect to their shares of Registrable Securities, and
the Company is required to use its best efforts to effect such registration.
Subject to certain limitations, the Holders may also require the Company to
register their shares on Form S-3 when such form becomes available to the
Company. Generally, the Company is required to bear all registration and selling
expenses incurred in connection with any such registrations. The rights are
subject to certain conditions and limitations, among them the right of the
underwriters of an offering to limit the number of shares included in such
registration. Such registration rights terminate as to any Holder at such time
as the Holder holds less then one percent (1%) of the Company's outstanding
capital stock and may sell all of such Holder's shares under rule 144
promulgated under the Securities Act within a three-month period.
TRADING MARKET, TRANSFER AGENT AND REGISTRAR
The Common Stock is traded on the Nasdaq National Market under the symbol
PEGS. The Transfer Agent and Registrar for the Common Stock is American
Securities Transfer & Trust, Inc.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, the Company will have outstanding an
aggregate of 10,457,133 shares of Common Stock, assuming no exercise of the
Underwriters' over-allotment option and no exercise of outstanding options. Of
these shares, all of the shares sold in the offering will be freely tradeable by
persons other than "affiliates" or persons deemed to be acting as "underwriters"
(as such terms are defined under the Securities Act) of the Company. In
addition, 4,332,756 shares of Common Stock are "restricted shares" within the
meaning of Rule 144 under the Securities Act and may be sold only if they are
registered under the Securities Act or are sold pursuant to an applicable
exemption from registration, including pursuant to Rule 144. The Company has
granted certain registration rights to the holders of such shares. See
"Description of Capital Stock -- Registration Rights."
In general, under Rule 144, as currently in effect, a person (or persons
whose shares are required to be aggregated) who has beneficially owned, for at
least one year, shares of Common Stock that have not been registered under the
Securities Act or that were acquired from an "affiliate" of the Company is
entitled to sell within any three-month period the number of shares of Common
Stock which does not exceed the greater of one percent of the number of then
outstanding shares or the average weekly reported trading volume during the four
calendar weeks preceding the sale. Sales under Rule 144 are also subject to
certain notice and manner of sale requirements and to the availability of
current public information about the Company and must be made in unsolicited
brokers' transactions or to a market maker. A person (or persons whose shares
are aggregated) who is not an "affiliate" of the Company under the Securities
Act during the three months preceding a sale and who has beneficially owned such
shares for at least two years is entitled to sell such shares under Rule 144
without regard to the volume, notice, information and manner of sale provisions
of such rule. Rule 144 does not require the same person to have held the
securities for the applicable periods.
Any employee, officer or director of or consultant to the Company who
purchased or was awarded shares or options to purchase shares pursuant to a
written compensatory plan or contract is entitled to rely on the resale
provisions of Rule 701 under the Securities Act, which permits affiliates and
non-affiliates to sell such shares without having to comply with the holding
period restrictions of Rule 144, in each case commencing 90 days after the date
of this Prospectus. In addition, non-affiliates may sell such shares without
complying with the public information, volume and notice provisions of Rule 144.
Rule 701 is available for optionholders of the Company as to all shares issued
pursuant to the exercise of options granted prior to this offering.
The Company filed a registration statement on Form S-8 to register the
shares of Common Stock issuable upon exercise of options granted or to be
granted pursuant to the Plans. Accordingly, shares issued upon exercise of such
options are freely tradeable by holders who are not affiliates of the Company
and, subject to the volume and other limitations of Rule 144, by holders who are
affiliates of the Company.
The Company, its executive officers and directors who are stockholders,
certain holders of options to purchase Common Stock under the Plans and certain
other stockholders of the Company, all of which hold an aggregate of 4,332,756
shares of Common Stock, have agreed that, for a period of 90 days from the date
of this
68
<PAGE> 73
Prospectus, they will not offer, sell or otherwise dispose of any shares of
Common Stock or options to acquire Common Stock without the prior written
consent of Hambrecht & Quist LLC, except for the issuance by the Company of
options to purchase Common Stock or shares of Common Stock issuable upon the
exercise thereof, provided that such options shall not become exercisable and
such shares issuable upon exercise of options or pursuant to acquisitions shall
not be transferable prior to the end of the 90-day period and for certain
transfers by individuals signing such agreements to their immediate family
members.
No predictions can be made of the effect, if any, that market sales of
shares of Common Stock or the availability of such shares for sale will have on
the market price prevailing from time to time. Nevertheless, sales of
significant amounts of Common Stock could adversely affect the prevailing market
price of the Common Stock, as well as impair the ability of the Company to raise
capital through the issuance of additional equity securities. See "Risk
Factors -- Absence of Prior Public Market; Potential Volatility of Stock Price."
69
<PAGE> 74
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Underwriters named below (the "Underwriters"), through their representatives,
Hambrecht & Quist LLC, NationsBanc Montgomery Securities LLC and Volpe Brown
Whelan & Company, LLC (the "Representatives"), have severally agreed to purchase
from the Company and the Selling Stockholders the following respective numbers
of shares of Common Stock:
<TABLE>
<CAPTION>
Number of
Name Shares
---- ---------
<S> <C>
Hambrecht & Quist LLC.......................................
NationsBanc Montgomery Securities LLC.......................
Volpe Brown Whelan & Company, LLC...........................
---------
Total.............................................
=========
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent, including the absence
of any material adverse change in the Company's business and the receipt of
certain certificates, opinions and letters from the Company, its counsel and
independent auditors. The nature of the Underwriters' obligation is such that
they are committed to purchase all shares of Common Stock offered hereby if any
of such shares are purchased.
The Underwriters propose to offer the shares of Common Stock directly to
the public at the public offering price set forth on the cover page of this
Prospectus and to certain dealers at such price less a concession not in excess
of $ per share. The Underwriters may allow and such dealers may reallow a
concession not in excess of $ per share to certain other dealers. After the
offering, the offering price and other selling terms may be changed by the
Representatives. The Representatives have informed the Company that the
Underwriters do not intend to confirm sales to accounts over which they exercise
discretionary authority.
The Company and certain Selling Stockholders have granted to the
Underwriters an option, exercisable not later than 30 days after the date of
this Prospectus, to purchase up to 315,000 additional shares of Common Stock at
the offering price, less the underwriting discount set forth on the cover page
of this Prospectus. To the extent the Underwriters exercise this option, each of
the Underwriters will have a firm commitment to purchase approximately the same
percentage thereof which the number of shares of Common Stock to be purchased by
it shown in the above table bears to the total number of shares of Common Stock
offered hereby. The Company will be obligated, pursuant to the option, to sell
such shares to the Underwriters to the extent the option is exercised. The
Underwriters may exercise such option only to cover over-allotments made in
connection with the sale of shares of Common Stock offered hereby.
The offering of the shares is made for delivery when, as and if accepted by
the Underwriters and subject to prior sale and to withdrawal, cancellation or
modification of the offering without notice. The Underwriters reserve the right
to reject an order for the purchase of shares in whole or in part.
The Company and the Selling Stockholders have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act, and to contribute to payments the Underwriters may be required
to make in respect thereof.
Certain officers and directors who are stockholders of the Company and
certain of the other stockholders, including the Selling Stockholders, who will
own in the aggregate approximately 2,250,000 shares of Common Stock after the
offering, have agreed, subject to certain exceptions, that they will not,
without the prior written consent of Hambrecht & Quist LLC, offer, sell or
otherwise dispose of any shares of Common Stock, options or warrants to acquire
shares of Common Stock or securities exchangeable for or convertible into shares
of Common Stock owned by them during the 90-day period following the date of
this Prospectus. The Company has agreed that it will not, without the prior
written consent of Hambrecht & Quist LLC, offer, sell or
70
<PAGE> 75
otherwise dispose of any shares of Common Stock, options or warrants to acquire
shares of Common Stock or securities exchangeable for or convertible into shares
of Common Stock during the 90-day period following the date of this Prospectus,
except that the Company may issue shares upon the exercise of options granted
prior to the date hereof, and may grant additional options under its Plans,
provided that, without the prior written consent of Hambrecht & Quist LLC, such
additional options shall not be exercisable during such 90-day period.
The public offering price for the Common Stock has been determined by
negotiations among the Company, the Selling Stockholders and the
Representatives. Among the factors considered in determining the public offering
price were prevailing market and economic conditions, revenues and earnings of
the Company, market valuations of other companies engaged in activities similar
to the Company, estimates of the business potential and prospects of the
Company, the present state of the Company's business operations, the Company's
management and other factors deemed relevant.
Certain persons participating in this offering may overallot or effect
transactions which stabilize, maintain or otherwise affect the market price of
the Common Stock at levels above those which might otherwise prevail in the open
market, including by entering stabilizing bids, effecting syndicate covering
transactions or imposing penalty bids. A stabilizing bid means the placing of
any bid or effecting of any purchase, for the purpose of pegging, fixing or
maintaining the price of the Common Stock. A syndicate covering transaction
means the placing of any bid on behalf of the underwriting syndicate or the
effecting of any purchase to reduce a short position created in connection with
the offering. A penalty bid means an arrangement that permits the Underwriters
to reclaim a selling concession from a syndicate member in connection with the
offering when shares of Common Stock sold by the syndicate member are purchased
in syndicate covering transactions. Such transactions may be effected on the
Nasdaq Stock Market, in the over-the-counter market, or otherwise. Such
stabilizing, if commenced, may be discontinued at any time.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered by this
Prospectus will be passed upon for the Company by Locke Purnell Rain Harrell (A
Professional Corporation), Dallas, Texas. Cooley Godward LLP, San Francisco,
California, will pass upon certain legal matters for the Underwriters.
EXPERTS
The consolidated financial statements of Pegasus Systems, Inc. as of
December 31, 1996 and for the year ended December 31, 1996 included in this
Prospectus and the related financial statement schedule for the year ended
December 31, 1996 included elsewhere in the Registration Statement have been so
included in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The consolidated financial statements of Pegasus Systems, Inc. (formerly
The Hotel Industry Switch Company in 1994) as of December 31, 1995 and for each
of the two years in the period ended December 31, 1995 and the consolidated
financial statements of The Hotel Clearing Corporation as of December 31, 1993
and 1994 and for each of the two years in the period ended December 31, 1994
included in this Prospectus and the related financial statement schedule for the
years ended December 31, 1994 and 1995 included elsewhere in the Registration
Statement have been so included in reliance on the reports of Belew Averitt LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
In January 1997, the Company advised Belew Averitt LLP ("Belew Averitt")
that it would no longer retain the firm as independent accountants. The reports
of Belew Averitt on the Company, formerly The Hotel Industry Switch Company, and
The Hotel Clearing Corporation for the previous years (1993, 1994 and 1995) did
not contain an adverse opinion or a disclaimer of opinion, nor were they
qualified or modified as to uncertainty, audit scope or accounting principles.
The decision to change accountants was precipitated by the Company's plan to
complete an initial public offering in 1997 and was approved by the Board of
Directors on January 7, 1997. During the periods audited by Belew Averitt and
through January 7, 1997 there were no disagreements with Belew Averitt on any
matter of accounting principles or practices, financial statement
71
<PAGE> 76
disclosure or auditing scope or procedure, which disagreement(s) if not resolved
to the satisfaction of Belew Averitt, would have caused it to make reference to
the subject matter of the disagreements in connection with its reports. Price
Waterhouse LLP was engaged by the Company as its independent accountants on
January 7, 1997.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, D.C. 20549 (the "Commission"), a registration statement on Form S-1
(together with any registration statement filed pursuant to Rule 462(b), the
"Registration Statement") under the Securities Act with respect to the shares of
Common Stock offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement and the exhibits and
schedules thereto. For further information with respect to the Company and the
shares offered by this Prospectus, reference is made to the Registration
Statement, including the exhibits and schedules filed thereto. Statements
contained in this Prospectus as to the contents of any agreement, contract or
other document referred to are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement or such other document, each such
statement being qualified in all respects by such reference. A copy of the
Registration Statement may be inspected by anyone without charge at the
Commission's principal office in Washington, D.C. and copies of all or any part
thereof may be obtained upon payment of certain fees prescribed by the
Commission from the Public Reference Section of the Commission at the
Commission's principal office, 450 Fifth Street, N.W., Washington, D.C. 20549,
or at the Commission's Regional Offices in New York, located at 7 World Trade
Center, Suite 1300, New York, New York 10048, or in Chicago, located at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. The Commission maintains a
World Wide Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. The address of the Commission's World Wide Web site is
http://www.sec.gov.
72
<PAGE> 77
PEGASUS SYSTEMS, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
PEGASUS SYSTEMS, INC.:
Consolidated Annual Financial Statements:
Reports of Independent Accountants........................ F-2
Consolidated Balance Sheets as of December 31, 1995 and
1996................................................... F-4
Consolidated Statements of Operations for the Years Ended
December 31, 1994, 1995 and 1996....................... F-5
Consolidated Statements of Changes in Shareholders' Equity
(Deficit) for the Years Ended December 31, 1994, 1995
and 1996............................................... F-6
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1994, 1995 and 1996....................... F-7
Notes to Consolidated Financial Statements................ F-8
Consolidated Interim Financial Statements (Unaudited):
Consolidated Balance Sheets as of December 31, 1996 and
September 30, 1997..................................... F-24
Consolidated Statements of Operations for the Nine Months
Ended September 30, 1996 and 1997...................... F-25
Consolidated Statements of Cash Flows for the Nine Months
Ended September 30, 1996 and 1997...................... F-26
Notes to Consolidated Interim Financial Statements........ F-27
THE HOTEL CLEARING CORPORATION:
Consolidated Annual Financial Statements:
Report of Independent Accountants......................... F-30
Consolidated Balance Sheets as of December 31, 1993 and
1994................................................... F-31
Consolidated Statements of Operations for the Years Ended
December 31, 1993 and 1994............................. F-32
Consolidated Statements of Shareholders' Deficit for the
Years Ended December 31, 1993 and 1994................. F-33
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1993 and 1994............................. F-34
Notes to Consolidated Financial Statements................ F-35
Consolidated Interim Financial Statements (Unaudited):
Consolidated Balance Sheet as of June 30, 1995............ F-41
Consolidated Statements of Operations for the Six Months
Ended June 30, 1994 and 1995........................... F-42
Consolidated Statement of Shareholders' Deficit for the
Six Months Ended June 30, 1995......................... F-43
Consolidated Statements of Cash Flows for the Six Months
Ended June 30, 1994 and 1995........................... F-44
Notes to Consolidated Interim Financial Statements........ F-45
</TABLE>
F-1
<PAGE> 78
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Shareholders of Pegasus Systems, Inc.
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations and changes in shareholders' equity
(deficit) and of cash flows present fairly, in all material respects, the
financial position of Pegasus Systems, Inc. and its subsidiaries at December 31,
1996, and the results of their operations and their cash flows for the year then
ended, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audit. We conducted our audit of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for the opinion expressed
above.
PRICE WATERHOUSE LLP
Dallas, Texas
February 21, 1997, except as to Note 13,
which is as of May 12, 1997, Note 15,
which is as of August 6, 1997 and Note 16,
which is as of January 26, 1998.
F-2
<PAGE> 79
INDEPENDENT AUDITOR'S REPORT
To the Shareholders
Pegasus Systems, Inc.
We have audited the accompanying consolidated balance sheet of Pegasus Systems,
Inc. (formerly The Hotel Industry Switch Company in 1994) and its subsidiaries
(Company) as of December 31, 1995, and the related consolidated statements of
operations, changes in shareholders' equity (deficit) and cash flows for the
years ended December 31, 1994 and 1995. These consolidated financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of the Company as of
December 31, 1995, and the results of its operations and its cash flows for the
years ended December 31, 1994 and 1995 in conformity with generally accepted
accounting principles.
BELEW AVERITT LLP
Dallas, Texas
March 2, 1996, except for
Note 15, as to which the
date is August 6, 1997 and
Note 16, as to which the
date is January 26, 1998
F-3
<PAGE> 80
PEGASUS SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995 AND 1996
ASSETS
<TABLE>
<CAPTION>
1995 1996
------------ ------------
<S> <C> <C>
Cash and cash equivalents................................... $ 93,831 $ 1,796,311
Restricted cash............................................. 330,177 690,206
Short-term investments...................................... -- 2,705,076
Accounts receivable, net of allowance for doubtful accounts
of $20,000 and $44,805, respectively...................... 739,496 924,951
Accounts receivable from affiliates......................... 655,756 754,405
Other current assets........................................ 41,990 190,976
------------ ------------
Total current assets.............................. 1,861,250 7,061,925
Software development costs.................................. 4,085,501 2,113,758
Property and equipment, net................................. 2,660,467 3,001,012
Goodwill, net of accumulated amortization of $58,219 and
$178,943, respectively.................................... 1,687,452 1,685,772
Other noncurrent assets..................................... 21,324 29,269
------------ ------------
Total assets...................................... $ 10,315,994 $ 13,891,736
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Accounts payable and accrued liabilities.................... $ 1,736,564 $ 2,574,186
Accounts payable to affiliates.............................. 204,188 115,049
Unearned income............................................. 431,373 470,588
Current portion of capital lease obligations................ 814,490 1,048,238
Current portion of notes payable to affiliates.............. 235,000 785,517
------------ ------------
Total current liabilities......................... 3,421,615 4,993,578
Capital lease obligations, net of current portion........... 1,696,570 1,749,899
Notes payable to affiliates, net of current portion......... 5,297,158 4,603,568
Unearned income............................................. 941,176 470,588
Other noncurrent liabilities................................ -- 119,709
Minority interest........................................... 1,339,682 --
Commitments and contingencies (Note 11)..................... -- --
Shareholders' equity (deficit):
Preferred stock, $.01 par value; 2,000,000 shares
authorized; zero and 1,538,462 shares issued and
outstanding, respectively.............................. -- 15,385
Common stock, $.01 par value; 100,000,000 shares
authorized, 5,218,000 and 5,307,733 shares issued,
respectively........................................... 52,180 53,077
Additional paid-in capital................................ 8,652,969 16,968,364
Unearned compensation..................................... -- (485,937)
Accumulated deficit....................................... (11,085,356) (14,570,157)
Less treasury stock (116,484 shares, at cost)............. -- (26,338)
------------ ------------
Total shareholders' equity (deficit).............. (2,380,207) 1,954,394
------------ ------------
Total liabilities and shareholders' equity
(deficit)....................................... $ 10,315,994 $ 13,891,736
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 81
PEGASUS SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
<TABLE>
<CAPTION>
1994 1995 1996
---------- ----------- -----------
<S> <C> <C> <C>
Net revenues (Notes 1 and 14)
Shareholder........................... $4,491,985 $ 7,400,592 $11,961,445
Nonshareholder........................ 174,466 1,895,136 3,907,567
---------- ----------- -----------
Total revenues................ 4,666,451 9,295,728 15,869,012
Cost of services........................ 1,546,065 3,882,496 6,199,058
Research and development................ 238,116 839,588 1,961,055
Write-off of purchased in-process
research and development (Note 3)..... -- 1,223,000 244,600
General and administrative expenses..... 1,065,345 2,770,474 3,799,199
Marketing and promotion expenses........ 130,474 912,230 2,824,633
Depreciation and amortization........... 1,518,588 2,476,812 3,425,678
---------- ----------- -----------
Operating income (loss)................. 167,863 (2,808,872) (2,585,211)
Other (income) expense:
Interest expense...................... 591,076 815,560 893,177
Interest income....................... -- -- (114,150)
---------- ----------- -----------
Loss before income taxes and minority
interest.............................. (423,213) (3,624,432) (3,364,238)
Income taxes............................ -- -- 15,000
---------- ----------- -----------
Loss before minority interest........... (423,213) (3,624,432) (3,379,238)
Minority interest....................... -- 53,528 (105,563)
---------- ----------- -----------
Net loss................................ $ (423,213) $(3,570,904) $(3,484,801)
========== =========== ===========
Basic and diluted net loss per share.... $ (0.56) $ (1.30) $ (0.66)
========== =========== ===========
Weighted average shares outstanding used
in the basic and diluted net loss per
share calculation..................... 762,000 2,751,940 5,246,800
========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 82
PEGASUS SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY (DEFICIT)
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK TREASURY STOCK
------------------- ------------------- ADDITIONAL --------------------
NUMBER OF NUMBER OF PAID-IN UNEARNED NUMBER OF
SHARES AMOUNT SHARES AMOUNT CAPITAL COMPENSATION SHARES AMOUNT
--------- ------- --------- ------- ----------- ------------ --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance of THISCO at
December 31, 1993...... -- -- 762,000 $7,620 $ 4,857,478 -- -- --
Net loss................ -- -- -- -- -- -- -- --
--------- ------- --------- ------- ----------- --------- -------- --------
Balance of THISCO at
December 31, 1994...... -- -- 762,000 7,620 4,857,478 -- --
========= ======= ========= ======= =========== ========= ======== ========
Conversion of
shareholder loans...... -- -- -- -- 525,000 -- -- --
Exchange of THISCO
shares for Pegasus
shares................. -- -- (762,000) (7,620) 7,620 -- -- --
Formation of Pegasus.... -- -- 2,691,867 26,919 (26,919) -- -- --
Acquisition of HCC...... -- -- 2,242,800 22,428 2,721,749 -- -- --
Issuance of restricted
shares to management... -- -- 283,333 2,833 568,041 -- -- --
Net loss................ -- -- -- -- -- -- -- --
--------- ------- --------- ------- ----------- --------- -------- --------
Balance at December 31,
1995................... -- -- 5,218,000 52,180 8,652,969 -- -- --
========= ======= ========= ======= =========== ========= ======== ========
Issuance of Pegasus
preferred stock to
Information Associates,
L.P. and Information
Associates, C.V........ 1,538,462 $15,385 -- -- 7,484,620 -- -- --
Issuance of Pegasus
common stock for
purchase of minority
interest............... -- -- 89,733 897 277,725 -- -- --
Purchase of treasury
stock.................. -- -- -- -- -- -- (116,484) $(26,338)
Issuance of compensatory
stock options.......... -- -- -- -- 551,150 $(485,937) -- --
Proceeds from stock
subscription........... -- -- -- -- 1,900 -- -- --
Net loss................ -- -- -- -- -- -- -- --
--------- ------- --------- ------- ----------- --------- -------- --------
Balance at December 31,
1996................... 1,538,462 $15,385 5,307,733 $53,077 $16,968,364 $(485,937) (116,484) $(26,338)
========= ======= ========= ======= =========== ========= ======== ========
<CAPTION>
ACCUMULATED
DEFICIT TOTAL
------------ -----------
<S> <C> <C>
Balance of THISCO at
December 31, 1993...... $ (7,091,239) $(2,226,141)
Net loss................ (423,213) (423,213)
------------ -----------
Balance of THISCO at
December 31, 1994...... (7,514,452) (2,649,354)
============ ===========
Conversion of
shareholder loans...... -- 525,000
Exchange of THISCO
shares for Pegasus
shares................. -- --
Formation of Pegasus.... -- --
Acquisition of HCC...... -- 2,744,177
Issuance of restricted
shares to management... -- 570,874
Net loss................ (3,570,904) (3,570,904)
------------ -----------
Balance at December 31,
1995................... (11,085,356) (2,380,207)
============ ===========
Issuance of Pegasus
preferred stock to
Information Associates,
L.P. and Information
Associates, C.V........ -- 7,500,005
Issuance of Pegasus
common stock for
purchase of minority
interest............... -- 278,622
Purchase of treasury
stock.................. -- (26,338)
Issuance of compensatory
stock options.......... -- 65,213
Proceeds from stock
subscription........... -- 1,900
Net loss................ (3,484,801) (3,484,801)
------------ -----------
Balance at December 31,
1996................... $(14,570,157) $ 1,954,394
============ ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 83
PEGASUS SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996
<TABLE>
<CAPTION>
1994 1995 1996
--------- ----------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $(423,213) $(3,570,904) $(3,484,801)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Minority interest....................................... -- (53,528) 105,563
Accrued interest reclassified to notes payable.......... -- 43,496 91,927
Reclassification of accrued interest to notes payable to
affiliates............................................ -- 255,203 --
Loss on write-down of equipment......................... -- 246,000 --
Write off of in-process research and development
costs................................................. -- 1,223,000 244,600
Adjustment for discontinued software projects........... -- -- 316,698
Loss (gain) on sale of equipment........................ (7,620) (14,553) 9,564
Depreciation and amortization........................... 1,518,588 2,476,812 3,425,678
Recognition of stock option compensation................ -- -- 65,213
Changes in assets and liabilities:
Restricted cash....................................... -- (157,307) (360,029)
Accounts receivable................................... (50,197) (182,998) (185,455)
Accounts receivable from affiliates................... (331,980) 80,785 (98,649)
Other current and noncurrent assets................... (1,966) (24,032) (156,931)
Accounts payable and accrued liabilities.............. 295,342 586,483 837,620
Accounts payable to affiliates........................ (20,403) (202,230) (89,139)
Unearned income....................................... -- (210,036) (431,373)
Other noncurrent liabilities.......................... -- -- 119,709
--------- ----------- -----------
Net cash provided by operating activities........... 978,551 496,191 410,195
--------- ----------- -----------
Cash flows from investing activities:
Purchase of software, property and equipment.............. (256,656) (639,461) (495,100)
Proceeds from sale of software, property and equipment.... 71,337 -- 133,134
Purchase of marketable securities......................... -- -- (2,705,076)
--------- ----------- -----------
Net cash used in investing activities............... (185,319) (639,461) (3,067,042)
--------- ----------- -----------
Cash flows from financing activities:
Proceeds from issuance of stock........................... -- 570,874 7,500,005
Purchase of minority interest............................. -- -- (2,000,000)
Repayments on notes payable to affiliates................. (234,165) (103,337) (235,000)
Repayments of capital leases.............................. (459,398) (578,271) (974,969)
Purchase of treasury stock................................ -- -- (26,338)
Proceeds from stock subscription.......................... -- -- 1,900
Proceeds from line of credit.............................. -- -- 175,000
Repayment of line of credit............................... -- -- (175,000)
Proceeds from capital leases.............................. -- -- 93,729
--------- ----------- -----------
Net cash provided (used) by financing activities........ (693,563) (110,734) 4,359,327
--------- ----------- -----------
Net increase (decrease) in cash and cash equivalents........ 99,669 (254,004) 1,702,480
Cash and cash equivalents, beginning year................... 248,166 347,835 93,831
--------- ----------- -----------
Cash and cash equivalents, end of year...................... $ 347,835 $ 93,831 $ 1,796,311
========= =========== ===========
Supplemental disclosure of cash flow information:
Interest paid............................................. $ 509,722 $ 706,842 $ 858,017
Income taxes paid......................................... -- -- --
--------- ----------- -----------
Supplemental schedule of noncash investing and financing
activities:
Acquisition of equipment under capital leases............. $ 120,252 $ 2,083,365 $ 1,045,988
========= =========== ===========
Conversion of notes payable to affiliates to additional
paid-in capital (Note 7)................................ $ -- $ 525,000 $ --
========= =========== ===========
Issuance of common stock for acquisitions (Notes 2, 3 and
8)...................................................... $ -- $ 2,744,177 $ 278,622
========= =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE> 84
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994, 1995 AND 1996
1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BACKGROUND
In July 1995, Pegasus Systems, Inc. (Pegasus or the Company) was formed as
a Delaware holding company to combine the operations of two existing companies
operating in the same industry, The Hotel Industry Switch Company (THISCO) and
The Hotel Clearing Corporation (HCC), as discussed in Note 2 below. For
accounting purposes, the combination was recorded as a purchase of HCC, as
discussed in Note 3 below.
CONSOLIDATION
The accompanying financial statements include the historical accounts of
THISCO for 1994. The financial statements for 1995 reflect the consolidated
balance sheets of THISCO and HCC and the consolidated operations of THISCO for
the year ended 1995 and HCC from the date of acquisition to December 31, 1995.
The 1996 consolidated financial statements include the accounts of Pegasus and
its wholly owned subsidiaries, THISCO and HCC. THISCO is consolidated with its
wholly owned subsidiary, TravelWeb, Inc. (TravelWeb), and HCC is consolidated
with its wholly owned subsidiary, Pegasus Systems Inc. (UK) Limited (Pegasus UK,
formerly The Hotel Clearing Corporation (UK) Limited), (collectively, the
Company). All significant intercompany balances have been eliminated in
consolidation.
THISCO was formed in September 1988 as a Delaware corporation. The
Company's THISCO service provides an electronic interface from hotel central
reservation systems to travel agencies through Global Distribution Systems
(GDSs), which are electronic travel information and reservation systems such as
SABRE.
HCC, acquired by the Company in July 1995 (see Note 3), was formed in July
1991 as a Delaware corporation. The Company's HCC service consolidates
commissions paid by participating hotels to a participating travel agency into a
single monthly payment and provides participants with comprehensive transaction
reports. Hotel properties and travel agencies worldwide utilize the HCC service
to increase the efficiency and reduce costs associated with preparing, paying
and reconciling hotel room reservation commissions.
TravelWeb was formed in October 1995 as a Delaware corporation. The
Company's TravelWeb service provides individual travelers direct access to
online hotel information and the ability to make reservations electronically at
hotel properties. In addition, through its recently introduced NetBooker
service, the Company offers TravelWeb's comprehensive hotel database and
Internet hotel reservation capabilities to third-party Web sites.
Pegasus UK, a wholly-owned subsidiary of HCC, was formed in September 1993
in England to market and provide services for travel agents and hotel chains
operating in Europe, Africa and Asia.
MANAGEMENT ESTIMATES
In preparing the consolidated financial statements in conformity with
generally accepted accounting principles, management is required to make
estimates and assumptions that affect the reported amounts of assets,
liabilities, revenues, and expenses. Actual results may differ from those
estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with maturities of
three months or less from the date of purchase, to be cash equivalents.
F-8
<PAGE> 85
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
RESTRICTED CASH
Funds for travel agency commission checks which have not cleared HCC's
processing bank after certain time periods are returned to HCC. Any amounts
which are not remitted to travel agents will be escheated to the appropriate
state, as required.
INVESTMENTS IN DEBT AND EQUITY SECURITIES
In 1996, the Company adopted Statement of Financial Accounting Standards
No. 115, "Accounting for Certain Investments in Debt and Equity Securities" (FAS
115). In accordance with this Statement, prior period financial statements have
not been restated to reflect the change in accounting principle. The cumulative
effect of the adoption of FAS 115 did not have a material effect on the
Company's financial condition or results of operations.
As of December 31, 1994, 1995 and 1996, the status of the securities
accounted for under FAS 115, was as follows:
<TABLE>
<CAPTION>
AMORTIZED COST
------------------------------------
1994 1995 1996
---------- ---------- ----------
<S> <C> <C> <C>
Held to maturity:
Corporate debt................................... $ -- $ -- $ 992,621
U.S. government agencies......................... -- -- 1,712,455
---------- ---------- ----------
$ -- $ -- $2,705,076
========== ========== ==========
</TABLE>
As of December 31, 1994, 1995 and 1996, the aggregate fair market value of
the held-to-maturity securities was $0, $0 and $2,705,076, respectively. The
gross unrealized gains and losses by type of security were not material.
The contract maturities of the held-to-maturity securities are less than
one year.
SOFTWARE DEVELOPMENT COSTS
All costs incurred in the internal development of computer software used in
delivery of the Company's services are expensed until a product design and a
working model of the software have been tested and completed. Thereafter, any
further development or production costs are capitalized until the software is
placed into service. Maintenance and customer support costs are expensed when
incurred. Capitalized software development costs are amortized on a
product-by-product basis using the greater of the amount computed by the ratio
of current year net revenue to estimated future net revenue, or the amount
computed by the straight-line method over a period which approximates the
estimated economic life of the products. The amount by which unamortized
software costs exceed the net realizable value, if any, is recognized in the
period the excess is determined. Prior to 1996, capitalized costs were being
amortized over three to five years using the straightline method. However, in
1996 the Company changed the estimated life of all capitalized software costs to
three years. The effect of this change was to increase the net loss during 1996
by approximately $292,000 or $0.04 per share on a pro forma basis. During 1996,
the Company recorded a charge of $316,698 resulting from discontinued software
development projects. During 1995 and 1996, the Company capitalized a total of
approximately $3,840,000 and $470,000, respectively, of software development
costs, including the software acquired in connection with the acquisition of HCC
(See Note 3). During 1994, 1995 and 1996, the Company amortized approximately
$970,000, $1,532,000 and $2,125,000, respectively, of capitalized software
costs. Accumulated amortization of software development costs was $4,614,686 and
$6,739,465 at December 31, 1995 and 1996, respectively.
F-9
<PAGE> 86
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and depreciated over their
estimated useful lives, ranging from three to seven years. Leasehold
improvements are amortized over the life of the lease using the straight-line
method. Expenditures for maintenance and repairs, as well as minor renewals, are
charged to operations as incurred. Betterments and major renewals are
capitalized. Upon retirement or sale of an asset, the cost of the asset and the
related accumulated depreciation or amortization are removed from the accounts
and any resulting gain or loss is credited or charged to operations.
In March 1995, Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of" (FAS 121) was issued. Effective January 1, 1996, the Company
adopted FAS 121 which requires that long-lived assets held and used by an
entity, or to be disposed of, be reviewed for impairment whenever events or
changes in circumstances indicate that the net book value of the asset may not
be recoverable. An impairment loss will be recognized if the sum of the expected
future cash flows (undiscounted and before interest) from the use of the asset
is less than the net book value of the asset. The amount of the impairment loss
will generally be measured as the difference between the net book value of the
assets and the estimated fair value of the related assets. Based on its most
recent analysis, the Company believes that no impairment of property and
equipment existed at December 31, 1995 or 1996.
GOODWILL
Goodwill represents the excess of the purchase price of acquisitions over
the fair value of the net assets acquired. Such excess costs are being amortized
on a straight-line basis over 15 years. Unamortized goodwill at December 31,
1995 and 1996, was $1,687,452 and $1,685,772, respectively. The carrying value
of goodwill is evaluated periodically in relation to the operating performance
and anticipated future undiscounted net cash flows of the related business.
Based on its most recent analysis, the Company believes that no impairment of
goodwill existed at December 31, 1996. Amortization of goodwill was $0, $58,219
and $120,724 in 1994, 1995 and 1996, respectively.
REVENUES
The Company primarily derives its revenues from transaction fees and
commissions charged to participating hotels and travel agencies. A substantial
portion of Company revenue is derived from shareholders and shareholder-owned
companies (see Note 14).
The Company's revenues are predominantly transaction-based. The Company
derives its revenues from its THISCO service by charging its hotel participants
a fee based on the number of reservations made, less the number cancelled ("net
reservations"), and a fee for "status messages" processed through the THISCO
service. Status messages are electronic messages sent by hotels to GDSs to
update room rates, features and availability information in GDS databases. As
cumulative volumes of net reservations increase during the course of the
calendar year, the fee per transaction decreases after predetermined transaction
volume hurdles have been met. As a result, for higher volume customers, unit
transaction fees are higher at the beginning of the year, when cumulative
transactions are lower. The Company recognizes revenues based on the expected
fee per transaction to be earned for services to be provided to the customer
during the entire year. Because the Company's customer contracts are based on
calendar year terms, this process of recognizing revenues results in a deferred
revenue balance being created during early periods of the year, which will be
reflected in interim balance sheets and be fully utilized by the end of each
year. Additionally, Pegasus generally charges new participants in the THISCO
service a one-time set-up fee for work associated with the implementation of the
interface with the THISCO service. Revenue for these one-time set-up fees is
recognized on a percentage of completion basis as the services are performed
over the set-up period, which generally ranges from two to six months. The
Company also charges certain GDSs a fee based on the number of net reservations
to
F-10
<PAGE> 87
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
compensate for the management and consolidation of multiple interfaces. Revenue
recognized for GDS fees is based on the actual volume of transactions processed
through the specific GDS multiplied by the anticipated average fee per
transaction to be charged to the GDS for the entire calendar year. Since both
the amount of GDS fees and the volume sensitive pricing is far less pronounced
than is the case with hotel customers, the amount of deferred revenue associated
with GDS billings is considerably less than that of the hotels. The Company
intends to reduce certain of the fees that it charges hotels for transmitting
status messages.
Pegasus derives its revenues from its HCC service by charging a
participating travel agency a fee based on a percentage of the dollar amount of
commissions paid to that agency through the HCC service. The Company also
generally charges a participating hotel a fee based on the number of
commissionable transactions arising from that hotel. Revenues from HCC travel
agency fees can vary substantially from period to period based on the types of
hotels at which reservations are made and overall room rates. Pegasus recognizes
revenues from its HCC service in the month in which the hotel stay occurs. In
the immediate following month, Pegasus collects commissions from the hotels by
the 12th business day of such month and pays commissions to travel agencies by
the 15th business day of such month. If a hotel fails to deliver funds to the
Company, the Company is not obligated to deliver commission payments on behalf
of the hotel to travel agencies. HCC revenues also include amortization of a
$2.0 million payment received by the Company in June 1993 in exchange for a
five-year noncancelable data processing contract. This payment was initially
recorded as unearned income and is being recognized as revenue over the life of
the contract. The amount of revenue recognized in 1996 was $431,000 (See Note
11). For the period from acquisition to December 31, 1995 and the year ended
December 31, 1996, HCC revenues from hotels are presented net of commission
payments to travel agencies of approximately $39,820,000 and $105,000,000,
respectively.
The Company offers two services, TravelWeb and NetBooker, that provide
hotel reservation capability to individual travelers through the Internet.
During 1996, Pegasus derived the substantial majority of its TravelWeb revenues
from fees related to the creation of Web site pages for hotels and for
maintaining these pages on the TravelWeb site. During 1997, the Company is
transitioning its fee structure to begin charging participating hotels
subscription fees based on the number of their properties included in the
database and transaction fees based on the number of net reservations made at
their properties through the TravelWeb service. The Company is not in a position
to forecast the effect that this change in fee structure will have on its
TravelWeb revenues. There can be no assurance that such a change will not have a
material adverse effect on the Company's financial condition and results of
operations. The Company also derives revenues through the sale of advertising
space on the TravelWeb site. Pegasus realizes revenues from NetBooker, the
Company's hotel room reservation service provided to third-party Web sites, by
charging third-party Web sites an initial development and licensing fee and by
charging hotels a fee based on the number of net reservations made through the
NetBooker service. The Company has not received a material amount of revenues
for the TravelWeb service or the NetBooker service to date, and there can be no
assurance that either of these services will produce a material amount of
revenues in the future.
INCOME TAXES
The Company presents income taxes pursuant to Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes" (FAS 109). FAS 109
uses an asset and liability approach to account for income taxes. In the event
differences between the financial reporting basis and the tax basis of the
Company's assets and liabilities result in deferred tax assets, an evaluation of
the probability of being able to realize the future benefits indicated by such
assets is required. A valuation allowance is provided for a portion or all of
the deferred tax assets when there is sufficient uncertainty regarding the
Company's ability to recognize the benefits of the assets in future years.
F-11
<PAGE> 88
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
ADVERTISING COSTS
Advertising and promotion-related expenses are charged to operations when
incurred. Advertising expense for 1994, 1995 and 1996 was approximately $84,000,
$173,000 and $613,000, respectively.
FINANCIAL INSTRUMENTS
The carrying amounts of the Company's financial instruments reflected in
the consolidated balance sheets at December 31, 1995 and 1996 approximate their
respective fair values.
CONCENTRATIONS OF CREDIT RISK
The Company's financial instruments exposed to concentrations of credit
risk consist primarily of cash and receivables. Cash balances, exceeding the
federally insured limits, are maintained in financial institutions; however,
management believes the institutions are of high credit quality. The majority of
receivables are due from companies which are well-established entities in the
travel industry. As a consequence, management considers any exposure from
concentrations of credit risks to be limited.
ACCOUNTING FOR STOCK-BASED COMPENSATION
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" (FAS 123), encourages, but does not require, companies
to record compensation cost for stock-based employee compensation plans at fair
value. The Company has elected to continue to account for stock-based
compensation using the intrinsic value method prescribed in Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" (APB
25), and related Interpretations. Accordingly, compensation cost for stock
options is measured as the excess, if any, of the fair market value of the
Company's stock at the date of grant over the amount the employee must pay to
acquire the stock. Pro forma disclosure of net loss based on the provisions of
FAS 123 is discussed at Note 9.
STOCK SPLITS
A one hundred-for-one stock split was effected in June 1996. All references
in the consolidated financial statements to shares, share prices, per share
amounts and stock plans have been adjusted retroactively for the one
hundred-for-one stock split. Additional information is presented in Note 8.
In May 1997, the board of directors approved a four-for-three stock split
to be effective concurrent with the effectiveness of the Registration Statement
on Form S-1. All references in the consolidated financial statements to shares,
share prices, per share amounts and stock plans have been adjusted retroactively
for the four-for-three stock split.
FOREIGN CURRENCY TRANSLATION
The U.S. dollar is the functional currency for the Company's foreign
operations. Gains and losses on the translation into U.S. dollars of amounts
denominated in foreign currencies are included in net income.
NET LOSS PER SHARE
The Company has adopted Statement of Financial Accounting Standards No.
128, "Earnings per Share" (FAS 128). FAS 128 simplifies the standards for
computing EPS previously found in Accounting Principles Board No. 15, "Earnings
per Share" (APB 15), and makes them comparable to international EPS standards by
replacing the presentation of primary EPS with a presentation of basic EPS. The
provisions and disclosure requirements for FAS 128 were required to be adopted
for interim and annual periods ending after
F-12
<PAGE> 89
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
December 15, 1997, with restatement of EPS for prior periods. Accordingly, EPS
data for all periods presented has been restated to reflect the computation of
EPS in accordance with the provisions of FAS 128.
2. REORGANIZATION
Effective in July 1995, the Company issued 4,934,667 shares of its common
stock in exchange for all of the outstanding capital stock of THISCO and 83.3%
of the outstanding capital stock of HCC (the Reorganization). Lodging Network,
Inc. (LNI) retained 210 shares of HCC preferred stock, representing a 16.7%
minority ownership interest in HCC. In conjunction with the Reorganization, LNI
was granted an option (LNI Option), expiring in July 1998, to exchange its 16.7%
ownership interest in HCC for 448,667 shares of the Company's common stock. The
LNI Option was subsequently canceled in June 1996, as part of the purchase of
all of LNI's minority interest ownership in HCC by the Company (see Note 3). The
Company incurred expenses of approximately $194,000 related to the
Reorganization. Such expenses have been included in the general and
administrative expenses in the Company's statement of operations for the year
ended December 31, 1995.
The Reorganization brought THISCO and HCC together under the control of
Pegasus and was initiated to integrate and expand the existing businesses of
THISCO and HCC. Pegasus was formed immediately prior to the transaction for the
purpose of combining the two operations into a single operating entity. Prior to
the Reorganization, THISCO and HCC were primarily controlled by a common (though
not identical) group of shareholders and a common management group. For
accounting purposes, the Reorganization was treated as an acquisition of HCC and
accounted for as a purchase business combination. Accordingly, the HCC assets
acquired and liabilities assumed have been recorded at their fair values at the
date of acquisition. The amount of the purchase price ($2.7 million) in excess
of the fair value of net assets acquired has been recorded as goodwill and will
be amortized on a straight-line basis over 15 years (see Note 3). The Company's
consolidated financial statements include the consolidated accounts and
operations of THISCO and HCC for all periods subsequent to the July 1995
acquisition date.
Prior to the Reorganization, HCC had a special bonus plan for the
management of HCC. As part of the Reorganization, management of HCC agreed to
forfeit its rights to participate in the bonus plan to HCC in return for a cash
payment and the opportunity to purchase an aggregate of 283,333 shares of the
Company's common stock for $570,874. Compensation expense in the amount of
$570,874 related to this transaction has been included in the net loss for the
year ended December 31, 1995. These shares are restricted and are subject to
repurchase upon termination of employment (see Note 8).
3. ACQUISITION
In July 1995, the Company acquired 83.3% of HCC (the Acquisition) in
exchange for 2,242,800 shares of the Company's common stock. HCC markets and
operates an automated commission payment service which settles electronic
bookings for travel agencies and hotel chains. HCC acts as a clearinghouse to
consolidate, collect and pay member travel agent commissions for participating
hotels.
F-13
<PAGE> 90
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Acquisition was recorded under the purchase method of accounting, and
accordingly, the results of operations of HCC for all periods subsequent to the
Acquisition date are included in the accompanying consolidated financial
statements. The fair value of HCC was determined based on certain arm's length
equity transactions occurring shortly before the Reorganization. The purchase
price has been allocated to assets acquired and liabilities assumed based on
estimated fair value at the date of the Acquisition. The approximate fair value
of assets acquired and liabilities assumed at the date of acquisition, after
giving effect to the write off of certain purchased research and development, is
summarized as follows:
<TABLE>
<S> <C>
Current assets.............................................. $ 505,000
Software.................................................... $ 3,523,000
Property and equipment...................................... $ 245,000
Goodwill.................................................... $ 1,746,000
Other noncurrent assets..................................... $ 18,000
Current liabilities......................................... $(1,034,000)
Long-term liabilities....................................... $(2,089,000)
Minority interest........................................... $(1,393,000)
</TABLE>
Approximately $1,223,000 was allocated to in-process research and
development projects that at the time of the Acquisition had not reached
technological feasibility and had no probable alternative future use. Such
amount of in-process research and development was charged to expense at the date
of acquisition. In addition, as indicated above, $3,523,000 was allocated to
software and is being amortized over a three year period ending June 1998. The
balance of the purchase price paid, approximately $1,746,000, was recorded as
the excess of cost over the fair value of net assets acquired (goodwill) and is
being amortized on a straight-line basis over a 15 year period ending June 2010.
Results of operations after the date of the Acquisition are included in the
1995 Consolidated Statement of Operations. Assuming the Acquisition took place
at January 1, 1994 and 1995, the pro forma net revenues would have been
approximately $7,413,000 and $11,455,000, respectively, and the pro forma net
loss would have been approximately $3,199,400 and $4,071,000, respectively. The
pro forma information for 1994 and 1995 includes adjustments for additional
amortization based on the fair market value of the acquired software and the
goodwill arising from the transaction. The pro forma information for 1994 also
includes the reorganization costs incurred in 1995. The pro forma financial
information is not necessarily indicative of the operations as they would have
been had the transaction been effected on the assumed date.
In June 1996, the Company purchased 210 shares of HCC preferred stock from
LNI for $2,000,000 cash and 89,733 shares of Pegasus common stock. The 210 HCC
preferred shares purchased represented a 16.7% minority ownership of HCC. After
the purchase, Pegasus owned 100% of the outstanding shares of HCC. The
transaction was accounted for as a purchase. The price paid in excess of the
minority interest value of $1,445,245 on the date of purchase was approximately
$833,000 and was accounted for as $119,000 of goodwill to be amortized ratably
over a 15 year period with the remaining excess allocated to $245,000 of
in-process research and development costs and $469,000 of step-up in the fair
value of capitalized software costs. Such amount of in-process research and
development was charged to expense at the date of acquisition. The fair value of
the Company's common stock given as consideration was determined using an
independent valuation.
4. ACCOUNTS RECEIVABLE
HCC collects travel agents' commissions from hotel chains and, after
retaining a portion of these commissions as a fee for services, remits the net
commissions to the travel agents. At December 31, 1995 and 1996, trade accounts
receivable were stated net of commissions of $6,059,362 and $8,149,815,
respectively.
F-14
<PAGE> 91
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Net accounts receivable from affiliates included in the accompanying
consolidated balance sheets were as follows at December 31:
<TABLE>
<CAPTION>
1995 1996
-------- --------
<S> <C> <C>
Amounts due to HCC from hotel chains........................ $ 27,813 $ 34,606
Amounts due to THISCO from hotel chains..................... 380,573 702,612
Amounts due to TravelWeb from hotel chains.................. 239,002 11,152
Employee travel advances.................................... 8,368 6,035
-------- --------
Accounts receivable from affiliates......................... $655,756 $754,405
======== ========
</TABLE>
5. PROPERTY AND EQUIPMENT
Property and equipment at December 31 consisted of the following:
<TABLE>
<CAPTION>
1995 1996
---------- ----------
<S> <C> <C>
Computer equipment.......................................... $4,657,439 $4,261,482
Furniture and equipment..................................... 363,801 640,507
Office equipment............................................ 394,055 712,245
Leasehold improvements...................................... 87,061 93,777
---------- ----------
5,502,356 5,708,011
Less: accumulated depreciation.............................. (2,841,889) (2,706,999)
---------- ----------
Property and equipment, net................................. $2,660,467 $3,001,012
========== ==========
</TABLE>
In 1995, the Company purchased assets previously recorded as capital
leases. These capitalized assets were being amortized over the life of the
lease, which was due to expire in the first quarter of 1996. The Company
financed the purchase of the assets and extended the assets' estimated lives by
one year. The effect of these changes was to decrease the net loss during 1995
by approximately $108,000 and increase the net loss during 1996 by $72,000.
6. CAPITAL LEASES
Assets recorded under capital leases, primarily consisting of computer
equipment, are recorded at the lower of the present value of future minimum
lease payments or the fair value of the asset. In 1995, the Company charged off
$246,000 related to switch equipment which was considered obsolete. The assets
were written down to the estimated salvage value of approximately $20,000. Total
assets recorded under capital leases in 1995 and 1996 were approximately
$4,664,000 and $3,829,000, respectively, net of accumulated amortization of
$2,392,000 and $1,591,000, respectively. Amortization of assets under capital
leases is included in depreciation and amortization expense.
F-15
<PAGE> 92
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Future minimum lease payments and related interest are as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
------------
<S> <C>
1997..................................................... $ 1,322,130
1998..................................................... 1,203,738
1999..................................................... 644,825
2000..................................................... 86,680
-----------
Aggregate minimum lease payments............................ 3,257,373
Less: amount representing interest.......................... (459,236)
-----------
2,798,137
Less current portion........................................ (1,048,238)
-----------
$ 1,749,899
===========
</TABLE>
Interest rates on capital leases range from approximately 7% to 15%.
Interest expense on capital leases for the years ended December 31, 1994, 1995
and 1996 was approximately $123,000, $238,000 and $351,000, respectively.
7. NOTES PAYABLE TO AFFILIATES
Notes payable to affiliates at December 31 consisted of the following:
<TABLE>
<CAPTION>
1995 1996
---------- ----------
<S> <C> <C>
Note payable to shareholder, bearing interest at prime plus
2.0% on the last day of the previous quarter (the prime
rate at September 30, 1995 and 1996 was 8.75% and 8.25%,
respectively); principal and accrued interest due in full
June 30, 2001 (see Note 13)............................... $4,261,482 $4,261,482
Notes and accrued interest payable to shareholders, bearing
interest at prime plus 1.0%; principal and accrued
interest due in full July 21, 2000, (the prime rate at
December 31, 1995 and 1996 was 8.5% and 8.25%,
respectively)............................................. 509,261 554,474
Notes and accrued interest payable to shareholders, bearing
interest at prime plus 1.0%; principal and accrued
interest due in full July 21, 2000 (the prime rate at
December 31, 1995 and 1996 was 8.5% and 8.25%,
respectively)............................................. 526,415 573,129
Note payable to shareholder, bearing interest at prime plus
2.0%; due March 29, 1996; uncollateralized; beginning
December 31, 1995 the interest rate increased to prime
plus 3.0%; paid in full in 1996........................... 200,000 --
Note payable to shareholder, bearing interest at prime plus
2.0%; due December 31, 1995; paid-in-full in 1996......... 35,000 --
---------- ----------
5,532,158 5,389,085
Less current portion........................................ (235,000) (785,517)
---------- ----------
$5,297,158 $4,603,568
========== ==========
</TABLE>
F-16
<PAGE> 93
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Maturities of notes and accrued interest payable to affiliates (including
the change in payment terms discussed in Note 13) as of December 31, 1996, were
as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31:
- ------------
<S> <C> <C>
1997.................................................................. $ 785,517
1998.................................................................. 869,924
1999.................................................................. 963,402
2000.................................................................. 2,194,528
2001.................................................................. 575,714
----------
$5,389,085
==========
</TABLE>
In 1995 and 1996, no principal or interest payments were due on the note
payable to shareholder of $4,261,482, according to the terms of the agreement,
as THISCO had not reported a consolidated net income. During 1995 and 1996, the
Company elected to make certain payments of interest totaling $465,000 and
$478,000, respectively. Interest expense related to these notes was
approximately $469,000, $578,000 and $539,000 during the years ended December
31, 1994, 1995 and 1996.
In July 1995, simultaneous with the Acquisition, the Company negotiated new
note agreements with all but one shareholder. The new note agreements,
representing obligations of subsidiaries guaranteed by Pegasus, converted
$450,000 in principal to additional paid-in capital, financed $255,203 of unpaid
interest, reduced the interest rate from prime plus two percent to prime plus
one percent and extended the due dates from December 31, 1995 to July 21, 2000.
The note agreement related to the one shareholder which was not renegotiated was
reduced in principal by $75,000 in exchange for Pegasus agreeing to guarantee
the remaining THISCO debt. The reduction of principal was recorded as a capital
contribution.
8. SHAREHOLDERS' EQUITY (DEFICIT)
During 1995, the Company issued 283,333 shares of restricted common stock
to certain members of management in connection with the termination of the HCC
special bonus plan (see Note 2). A compensation charge was recorded in 1995 for
the fair value of the shares issued. For a period of three years from date of
issuance, these shares cannot be sold. If an employee leaves the Company, the
Company has the right to repurchase the shares at the lesser of fifty percent of
the original purchase price or the current market value. During 1996, the
Company repurchased 25,467 shares from a terminated employee.
As a result of the Reorganization effective July 1995, certain shareholders
exchanged shares of THISCO for shares of Pegasus. Additionally, in order to
effect the purchase of HCC, the Company issued Pegasus shares to HCC
shareholders in exchange for 83.3% of the outstanding capital stock of HCC. Some
of the Pegasus shares exchanged for HCC shares were subject to repurchase. The
repurchase was based upon an agreement by the HCC shareholders that some value
for the HCC shares exchanged should be assigned based upon the number of
transactions that an HCC shareholder committed to process through HCC in 1996.
If a shareholder did not fulfill its commitment by processing the agreed number
of transactions through HCC in 1996, the Company had the option to repurchase
such shares for $0.01 per share. The total number of shares repurchased from
each shareholder is based upon the percentage of their transaction commitment
actually processed by HCC during 1996. Effective December 31, 1996, the Company
repurchased 91,017 shares of the 477,733 shares subject to repurchase.
In June 1996, the Company declared a one hundred-for-one stock split
effected in the form of a stock dividend to stockholders of record on that date.
The number of common shares the Company is authorized to issue was also
increased from 100,000 to 20 million and the number of authorized preferred
shares was increased from 10,000 to 2 million.
F-17
<PAGE> 94
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In June 1996, Information Associates, L.P. and Information Associates, C.V.
purchased 1,538,462 shares of the Company's Series A preferred stock (par value
$0.01) for $4.88 per share or $7,500,005. Total shares outstanding increased
from 5,191,249 (including the 89,733 issued to LNI as part of the purchase of
minority interest in HCC) to 6,729,712 shares, with the Information Associates,
L.P. and Information Associates, C.V. ownership representing 22.9% of the total
shares outstanding after the purchase. Additionally, the Company has reserved
866,667 shares as part of the Company's 1996 Stock Option Plan which after
issuance would reduce the 1,538,462 Series A preferred shares to 20.3% of the
total shares outstanding. The Series A preferred shares carry special provisions
which include: conversion rights to exchange one share of Series A preferred
stock for one share of Pegasus common stock; the right to elect two of nine
persons to the board of directors; preferred status as to the payment of any
dividends that are declared by the board of directors; and preferred status in
the event of any liquidation, dissolution or winding up of the corporation.
9. STOCK-BASED COMPENSATION
The Company's 1996 stock option plan was approved by the board of directors
in June 1996 and authorizes the grant of up to 866,667 shares of the Company's
common stock in the form of incentive stock options (ISOs) and nonqualified
stock options. The plan is administered and grant prices are determined by the
Stock Option Committee of the board of directors (Committee). Options normally
extend for a period of 10 years, and under Committee policy become exercisable
in installments of 25% per year commencing one year from the date of grant, or
over a vesting period determined by the Committee. Shares granted come from the
Company's authorized but unissued or reacquired common stock. In 1996, the
Company issued to executives and employees options to purchase an aggregate of
771,733 shares of common stock. These options will become exercisable over a
period of four years.
The Company's 1997 stock option plan was approved by the board of directors
in March 1997 and authorizes the grant of up to 333,333 shares of the Company's
common stock in the form of incentive stock options (ISOs) and nonqualified
stock options. The plan is administered and grant prices are determined by the
Committee. Options normally extend for a period of 10 years, and under Committee
policy become exercisable in installments of 25% per year commencing one year
from the date of grant, or over a vesting period determined by the Committee.
Shares granted come from the Company's authorized but unissued or reacquired
common stock. These options will become exercisable over a period of four years.
The Company has adopted the disclosure-only provisions of FAS 123. As
discussed in Note 1, the Company has elected to continue to account for
stock-based compensation using the intrinsic value method prescribed in APB 25.
Accordingly, unearned compensation of $551,150 related to options is being
recognized ratably over the vesting period for stock option grants with exercise
prices which are less than fair market value of the stock at the date of grant.
Compensation expense of $65,213 was charged to operations in 1996.
There were no stock option awards granted prior to 1996; however, had
compensation cost for the Company's stock option plan been determined based on
the fair value at the grant date for awards issued in 1996 consistent with the
provisions of FAS 123, the Company's net loss would have been increased to the
pro forma amounts indicated below:
<TABLE>
<CAPTION>
1996
-----------
<S> <C>
Net loss -- as reported..................................... $(3,484,801)
Net loss -- pro forma....................................... $(3,511,531)
Basic and diluted net loss per share -- as reported......... $ (0.66)
Pro forma basic and diluted loss per share -- as adjusted
for pro forma impact of FAS 123........................... $ (0.67)
</TABLE>
F-18
<PAGE> 95
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The weighted average fair value at date of grant for options granted during
1996 was $1.22 per option. The fair value of each option grant is estimated on
the date of grant using the Black-Scholes option-pricing model with the
following weighted-average assumptions used:
<TABLE>
<S> <C>
Dividend yield.............................................. --
Expected volatility......................................... 0.0%
Risk-free rate of return.................................... 6.5%
Expected life............................................... 4 years
</TABLE>
The following table summarizes activity under the Company's stock option
plan during the year ended December 31, 1996:
<TABLE>
<CAPTION>
WEIGHTED
EXERCISE AVERAGE
PRICE EXERCISE
OPTIONS PER SHARE PRICE PER SHARE
-------- ----------- ---------------
<S> <C> <C> <C>
Outstanding at December 31, 1995................. -- -- --
Granted........................................ 771,733 $2.01-$3.11 $2.39
Canceled....................................... -- -- --
-------- ----------- -----
Outstanding at December 31, 1996................. 771,733 $2.01-$3.11 $2.39
======== =========== =====
Options exercisable at December 31, 1996......... -- -- --
</TABLE>
<TABLE>
<CAPTION>
OPTIONS
OUTSTANDING AT REMAINING
EXERCISE PRICES DECEMBER 31, 1996 CONTRACTUAL LIFE
- --------------- ----------------- ----------------
<C> <C> <C>
$2.01 503,333 9.5 years
$3.11 268,400 9.8 years
</TABLE>
In conjunction with the Reorganization described in Note 2, LNI was granted
an option, expiring in July 1998, to exchange its 210 shares of HCC preferred
stock for 448,667 shares of the Company's common stock. The option was canceled
in June 1996 in conjunction with the Company's purchase of LNI's minority
interest in HCC.
10. INCOME TAXES
Pretax income (loss) from continuing operations for the years ended
December 31 was taxed under the following jurisdictions:
<TABLE>
<CAPTION>
1994 1995 1996
--------- ----------- -----------
<S> <C> <C> <C>
Domestic..................................... $(423,213) $(3,527,122) $(3,528,503)
Foreign...................................... -- (43,782) 58,702
--------- ----------- -----------
$(423,213) $(3,570,904) $(3,469,801)
========= =========== ===========
</TABLE>
F-19
<PAGE> 96
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Deferred taxes consisted of the following at December 31:
<TABLE>
<CAPTION>
1995 1996
----------- -----------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforward......................... $ 4,475,200 $ 4,975,949
Bad debt reserves....................................... 6,800 15,234
Depreciation and amortization........................... 36,623 1,896
Stock option compensation expense....................... -- 22,172
Rent expense............................................ -- 37,213
Various expense accruals................................ 7,248 53,793
Other................................................... 573 2,164
----------- -----------
Total gross deferred tax assets................. 4,526,444 5,108,421
Valuation allowance..................................... (3,528,272) (4,549,452)
Deferred tax liability:
Software amortization................................... (998,172) (558,969)
----------- -----------
Net deferred tax assets................................... $ -- $ --
=========== ===========
</TABLE>
The net deferred tax asset is fully reserved because of uncertainty
regarding the Company's ability to recognize the benefit of the asset in future
years. At December 31, 1994, 1995 and 1996, the Company had net operating loss
carryforwards of approximately $7,538,000, $13,162,000 and $14,635,000,
respectively, which begin to expire in 2003, if not previously utilized.
Utilization of the net operating loss carryforwards may be limited by the
separate return loss year rules and could be affected by ownership changes which
have occurred or could occur in the future.
The components of the income tax provision for the years ended December 31
were as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Current provision:
Federal............................................. $ -- $ -- $ --
State............................................... -- -- --
Foreign............................................. -- -- 15,000
------- ------- -------
$ -- $ -- $15,000
======= ======= =======
Deferred provision (benefit):
Federal............................................. $ -- $ -- $ --
State............................................... -- -- --
------- ------- -------
Provision for income taxes............................ $ -- $ -- $15,000
======= ======= =======
</TABLE>
A reconciliation of taxes based on the federal statutory rate of 34.0% and
the provision for income taxes is summarized as follows for the years ended
December 31:
<TABLE>
<CAPTION>
1994 1995 1996
----- ----- -----
<S> <C> <C> <C>
Income taxes at the federal statutory rate.................. (34.0%) (34.0%) (34.0%)
Valuation allowance......................................... 31.8% 19.8% 29.4%
Permanent differences....................................... 2.2% 14.3% 5.1%
Other, net.................................................. 0.0% (0.1%) (0.5%)
----- ----- -----
Provision for income taxes.................................. 0.0% 0.0% 0.0%
===== ===== =====
</TABLE>
F-20
<PAGE> 97
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
11. COMMITMENTS AND CONTINGENCIES
The Company leases its corporate office space and certain office equipment
under noncancelable operating leases. The Company incurred rent expense of
approximately $146,000, $318,000 and $697,000 in 1994, 1995 and 1996,
respectively.
Approximate future minimum lease payments at December 31, 1996, under
noncancelable operating leases with original terms exceeding one year, including
the Pegasus UK operating lease translated at the rate in effect at December 31,
1996, were as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
- ------------
<S> <C> <C>
1997............................................................. $ 673,000
1998............................................................. 621,000
1999............................................................. 597,000
2000............................................................. 567,000
2001............................................................. 557,000
Thereafter.......................................................... 552,000
----------
$3,567,000
==========
</TABLE>
In June 1993, HCC received $2,000,000 from Citicorp in exchange for a
five-year noncancelable data processing contract and recorded the amount as
deferred income. The noncancelable contract requires Citicorp to process
transactions and generate various reports in exchange for a processing fee. The
contract requires HCC to maintain an annual minimum volume of transactions. If
the annual minimum volume is not attained, HCC is required to pay Citicorp an
additional processing fee for each transaction under the minimum volume. At the
date of the Acquisition there was approximately $1,583,000 of deferred income to
be amortized over the remaining life of the contract according to the volume of
guaranteed transactions, as defined by the contract. During 1995 and 1996, the
Company recognized approximately $210,000 and $431,000, respectively, of the
deferred income. However, because the Company did not meet its annual minimum
volume of transactions during 1995, it also recorded an additional processing
fee of approximately $44,700 for the year ended December 31, 1995. In 1996, the
Company exceeded the annual minimum volume requirement.
12. EMPLOYEE BENEFIT PLAN
The Company sponsors a 401(k) defined contribution retirement plan (401(k)
Plan) covering full-time employees who have completed one year of service and
attained the age of twenty-one.
Effective January 1, 1995, the 401(k) Plan was amended to change the pro
rata vesting schedule from two to five years. The sponsor can make discretionary
matching contributions up to five percent of employees' annual contributions.
During 1994, 1995 and 1996, the Company contributed approximately $34,000,
$101,000 and $160,000, respectively, to the 401(k) Plan.
Prior to the Acquisition of HCC by THISCO, both companies participated in
the 401(k) Plan. Accordingly, prior to the Acquisition, HCC contributed $20,000
and $18,000 in 1994 and 1995, respectively.
13. SUBSEQUENT EVENTS
The Company has a note payable to a shareholder with a principal balance
outstanding of $4,261,482 at December 31, 1995 and 1996. The original terms of
the note called for five equal payments of principal and interest beginning in
the year that THISCO generated a net profit, but due in full no later than June
30, 2001. Effective January 1997, the Company began remitting equal monthly
payments of principal and interest.
F-21
<PAGE> 98
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In May 1997, the Company issued a warrant to a customer for the purchase of
345,723 shares of the Company's common stock. The warrants are immediately
exercisable during the two year period ending May 12, 1999 at an exercise price
equal to the lower of $7.20 per share or 85.0% of the price per share.
14. RELATED PARTIES
As explained in Note 1, the Company derives a substantial portion of its
revenue from shareholders and shareholder-owned companies through the operation
of its international automated interface called Ultraswitch. Also, as a result
of the Acquisition of HCC in July 1995, a significant portion of the Company's
revenue is generated indirectly by shareholders as a function of the Company's
role as the consolidator and payor of commissions to travel agencies. The
Company receives a fee from hotels for consolidating and remitting commission
payments to travel agencies on behalf of the hotel properties and receives a fee
from travel agencies through the retention of a percentage of commission
payments remitted to travel agencies. A summary of revenues is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------------------ ------------------ -------------------
SOURCE OF REVENUE AMOUNT % AMOUNT % AMOUNT %
----------------- ---------- ----- ---------- ----- ----------- -----
<S> <C> <C> <C> <C> <C> <C>
Shareholders -- direct......... $3,772,458 80.9% $4,935,785 53.1% $ 6,458,380 40.7%
Shareholders -- indirect....... 719,527 15.4% 2,450,326 26.4% 5,503,065 34.7%
---------- ----- ---------- ----- ----------- -----
Total generated by shareholders
directly and indirectly...... 4,491,985 96.3% 7,386,111 79.5% 11,961,445 75.4%
All other revenue.............. 174,466 3.7% 1,909,617 20.5% 3,907,567 24.6%
---------- ----- ---------- ----- ----------- -----
Total................ $4,666,451 100.0% $9,295,728 100.0% $15,869,012 100.0%
========== ===== ========== ===== =========== =====
</TABLE>
A shareholder provides services to the Company, including facility
management, consulting and software development. During 1994, 1995 and 1996, the
Company recognized expense in the amount of approximately $454,000, $495,000 and
$774,000, respectively, for those services. Further, the Company capitalized
$42,000 and $210,000 related to software development and property and equipment
during 1994 and 1995, respectively.
Persons related to an officer of the Company have provided printing, design
and procurement services to the Company. During 1994, 1995 and 1996, the Company
paid approximately $95,000, $48,000 and $143,000, respectively, relating to
these services, the majority of which related to capitalized furniture
purchases.
15. STOCK SPLIT
The Company plans to proceed with an IPO in 1997. Consequently, the Company
approved the declaration of a four-for-three stock split of the outstanding
common and preferred stock effected in the form of a dividend to shareholders of
record on the effective date of the Registration Statement on Form S-1 with
respect to the IPO. The number of shares of common stock the Company is
authorized to issue will increase from 20 million to 100 million and the number
of authorized shares of preferred stock will remain 2.0 million. As stated in
Note 1, the financial statements have been adjusted retroactively for the
four-for-three split.
16. NET LOSS PER SHARE
Basic net loss per share has been computed in accordance with FAS 128 using
the weighted average number of common shares outstanding after giving
retroactive effect to the four-for-three stock split effected in August 1997.
The provisions and disclosure requirements for FAS 128 were required to be
adopted for interim and annual periods ending after December 15, 1997, with
restatement of EPS for prior periods.
Diluted net loss per share gives effect to all dilutive potential common
shares that were outstanding during the period. The Company had a net loss for
each of the three years ended December 31, 1996;
F-22
<PAGE> 99
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
therefore, none of the Series A preferred shares, convertible to common stock on
a one-for-one basis, and options or warrants outstanding at each of the period
ends were included in the diluted net loss per share calculation for the years
ended December 31, 1994, 1995 and 1996, since they were anti-dilutive. The
denominator (the number of shares) and the numerator (net income or loss) is the
same for the basic and diluted EPS computations for all periods presented.
There were no options or warrants outstanding at December 31, 1994 and
1995. There were 1,538,463 shares of Series A preferred stock outstanding at
December 31, 1996 which were not included in the computation of diluted EPS.
Options outstanding as of December 31, 1996 which were not included in the
computation of diluted EPS were as follows:
<TABLE>
<CAPTION>
EXERCISE
NUMBER OF PRICE
OPTIONS PER SHARE DATE OF GRANT EXPIRATION DATE
--------- --------- -------------- ---------------
<S> <C> <C> <C>
450,000..................................... $2.01 June 1996 December 2005
53,333..................................... $2.01 September 1996 December 2005
268,400..................................... $3.11 September 1996 December 2005
</TABLE>
F-23
<PAGE> 100
PEGASUS SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
<S> <C> <C>
Cash and cash equivalents................................... $ 1,796,311 $ 39,222,651
Restricted cash............................................. 690,206 1,221,677
Short-term investments...................................... 2,705,076 --
Accounts receivable, net of allowance for doubtful accounts
of $44,805 and $54,463, respectively...................... 924,951 1,615,830
Accounts receivable from affiliates......................... 754,405 1,301,884
Other current assets........................................ 190,976 667,474
------------ ------------
Total current assets.............................. 7,061,925 44,029,516
Software development costs, net............................. 2,113,758 1,140,566
Property and equipment, net................................. 3,001,012 2,674,894
Goodwill, net of accumulated amortization of $178,943 and
$272,597, respectively.................................... 1,685,772 1,592,118
Other noncurrent assets..................................... 29,269 453,071
------------ ------------
Total assets...................................... $ 13,891,736 $ 49,890,165
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable and accrued liabilities.................... $ 2,574,186 $ 3,748,661
Accounts payable to affiliates.............................. 115,049 83,604
Unearned income............................................. 470,588 1,077,685
Current portion of capital lease obligations................ 1,048,238 1,048,689
Current portion of notes payable to affiliates.............. 785,517 --
------------ ------------
Total current liabilities......................... 4,993,578 5,958,639
Capital lease obligations, net of current portion........... 1,749,899 937,470
Notes payable to affiliates, net of current portion......... 4,603,568 --
Unearned income............................................. 470,588 117,647
Other noncurrent liabilities................................ 119,709 137,637
Shareholders' equity:
Preferred stock, $.01 par value; 2,000,000 shares
authorized; 1,538,462 and zero shares issued and
outstanding, respectively.............................. 15,385 --
Common stock, $.01 par value; 100,000,000 shares
authorized; 5,307,733 and 10,296,196 shares issued,
respectively........................................... 53,077 102,962
Additional paid-in capital................................ 16,968,364 58,116,211
Unearned compensation..................................... (485,937) (814,442)
Accumulated deficit....................................... (14,570,157) (14,639,621)
Less treasury stock (116,484 shares, at cost)............. (26,338) (26,338)
------------ ------------
Total shareholders' equity........................ 1,954,394 42,738,772
------------ ------------
Total liabilities and shareholders' equity........ $ 13,891,736 $ 49,890,165
============ ============
</TABLE>
See accompanying notes to consolidated financial statements
F-24
<PAGE> 101
PEGASUS SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
--------------------------
1996 1997
----------- -----------
<S> <C> <C>
Net revenues
Shareholder............................................... $ 9,131,927 $11,500,913
Nonshareholder............................................ 2,652,409 3,735,053
----------- -----------
Total revenues.................................... 11,784,336 15,235,966
Cost of services............................................ 4,684,762 5,471,125
Research and development.................................... 1,590,894 1,818,074
General and administrative.................................. 2,725,350 2,611,564
Marketing and promotion..................................... 1,984,260 2,986,413
Depreciation and amortization............................... 2,601,593 2,290,768
----------- -----------
Operating income (loss)..................................... (1,802,523) 58,022
Other (income) expense:
Interest expense.......................................... 621,526 543,832
Interest income........................................... (59,043) (442,346)
----------- -----------
Income (loss) before income taxes and minority interest..... (2,365,006) (43,464)
Income taxes................................................ -- 26,000
----------- -----------
Income (loss) before minority interest...................... (2,365,006) (69,464)
Minority interest........................................... (105,563) --
----------- -----------
Net income (loss)........................................... $(2,470,569) $ (69,464)
=========== ===========
Basic and diluted net loss per share........................ $ (0.47) $ (0.01)
=========== ===========
Weighted average shares outstanding used in the basic and
diluted net loss per share calculation.................... 5,234,891 6,196,251
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-25
<PAGE> 102
PEGASUS SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
--------------------------
1996 1997
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $(2,470,569) $ (69,464)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Minority interest...................................... 105,563 --
Accrued interest reclassified to notes payable......... 68,858 58,049
Write off of in-process research and development
costs................................................. 244,600 --
Adjustment for discontinued software projects.......... 316,698 --
Loss on sale of equipment.............................. 9,988 --
Depreciation and amortization.......................... 2,601,593 2,290,768
Recognition of stock option compensation............... 30,789 122,342
Changes in assets and liabilities:
Restricted cash...................................... (166,694) (531,471)
Accounts receivable.................................. (251,977) (690,879)
Accounts receivable from affiliates.................. (604,497) (547,479)
Other current and noncurrent assets.................. (77,348) (662,300)
Accounts payable and accrued liabilities............. 524,559 1,174,475
Accounts payable to affiliates....................... (204,188) (31,445)
Unearned income...................................... (42,871) 254,156
Other noncurrent liabilities......................... 97,319 17,928
----------- -----------
Net cash provided by operating activities......... 181,823 1,384,680
----------- -----------
Cash flows from investing activities:
Purchase of software, property and equipment.............. (400,821) (818,661)
Proceeds from sale of software, property and equipment.... 132,328 --
Purchase of marketable securities......................... -- (1,476,691)
Proceeds from sale of marketable securities............... -- 4,181,767
----------- -----------
Net cash provided by (used in) investing
activities..................................... (268,493) 1,886,415
----------- -----------
Cash flows from financing activities:
Net proceeds from issuance of stock....................... 7,500,005 40,493,500
Purchase of minority interest............................. (2,000,000) --
Proceeds from stock subscription.......................... 1,900 --
Repayment of notes payable to affiliates.................. (235,000) (5,447,134)
Purchase of treasury stock................................ (25,656) --
Proceeds from line of credit.............................. 175,000 --
Repayment of line of credit............................... (175,000) --
Proceeds from capital leases.............................. 90,899 3,913
Repayment of capital leases............................... (707,755) (895,034)
----------- -----------
Net cash provided by financing activities......... 4,624,393 34,155,245
----------- -----------
Net increase in cash and cash equivalents................... 4,537,723 37,426,340
Cash and cash equivalents, beginning of period.............. 93,831 1,796,311
----------- -----------
Cash and cash equivalents, end of period.................... $ 4,631,554 $39,222,651
=========== ===========
Supplemental schedule of noncash investing and financing
activities:
Acquisition of equipment under capital leases............. $ 706,594 $ 79,144
=========== ===========
Issuance of common stock for acquisitions................. $ 278,622 $ --
=========== ===========
Common stock warrants issued in exchange for customer
contract asset......................................... $ -- $ 238,000
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-26
<PAGE> 103
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
In July 1995, Pegasus Systems, Inc. (Pegasus or the Company) was formed as
a Delaware holding company to combine the operations of two existing companies
operating in the same industry, The Hotel Industry Switch Company, Inc. (THISCO)
and The Hotel Clearing Corporation (HCC). For accounting purposes, the
combination was recorded as a purchase of HCC.
The accompanying financial statements include the consolidated accounts of
Pegasus and its wholly owned subsidiaries, THISCO and HCC. THISCO is
consolidated with its wholly owned subsidiary, TravelWeb, Inc. (TravelWeb), and
HCC is consolidated with its wholly owned subsidiary, Pegasus Systems Inc. (UK)
Limited (Pegasus UK, formerly The Hotel Clearing Corporation (UK) Limited)
(collectively, the Company). All significant intercompany balances have been
eliminated in consolidation.
THISCO was formed in September 1988 as a Delaware corporation. The
Company's THISCO service provides an electronic interface from hotel central
reservation systems to travel agencies through Global Distribution Systems
("GDSs"), which are electronic travel information and reservation systems such
as SABRE.
HCC, acquired by the Company in July 1995, was formed in July 1991 as a
Delaware corporation. The Company's HCC service consolidates commissions paid by
participating hotels to a participating travel agency into a single monthly
payment and provides participants with comprehensive transaction reports. Hotel
properties and travel agencies worldwide utilize the HCC service to increase the
efficiency and reduce costs associated with preparing, paying and reconciling
the hotel room reservation commissions.
Pegasus UK, a wholly-owned subsidiary of HCC, was formed in September 1993
in England to market and provide services for travel agents and hotel chains
operating in Europe, Africa and Asia.
TravelWeb was formed in October 1995 as a Delaware corporation. The
Company's TravelWeb service provides individual travelers direct access to
online hotel information and the ability to make reservations electronically at
hotel properties. In addition, through its recently introduced NetBooker
service, the Company offers TravelWeb's comprehensive hotel database and
Internet hotel reservation capabilities to third-party Web sites.
The consolidated interim financial information presented herein should be
read in conjunction with the Company's annual consolidated financial statements
for the year ended December 31, 1996 and the notes thereto, which have been
included herein. All outstanding shares of Series A preferred stock were
converted on a one-for-one basis to common stock concurrent with the Company's
IPO in August 1997. The foregoing unaudited interim consolidated financial
statements reflect all adjustments (all of which are of a normal recurring
nature) which are, in the opinion of management, necessary for a fair
presentation of the results of the interim periods. The results for interim
periods are not necessarily indicative of results to be expected for the year.
2. INITIAL PUBLIC OFFERING
The Company completed an initial public offering (IPO) in August 1997. The
Company's Registration Statement on Form S-1 (File No. 333-28595) with respect
to the IPO was declared effective on August 6, 1997, and the Company's stock
began trading on the Nasdaq National Market under the symbol PEGS on August 7,
1997. The Company sold 3,450,000 shares of common stock at a per share price of
$13.00. Net proceeds to the Company, after deduction of the underwriting
discount and estimated IPO expenses, were approximately $40.5 million. Selling
shareholders also sold 659,000 shares at a per share price of $13.00. Net
proceeds to the shareholders after deduction of the underwriting discount were
approximately $8.0 million. The Company did not receive any proceeds from the
sale of shares by the selling shareholders.
F-27
<PAGE> 104
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED INTERIM FINANCIAL STATEMENTS -- (CONTINUED)
3. STOCK SPLITS
A one hundred-for-one stock split was effected in June 1996. All references
in the consolidated financial statements to shares, share prices, per share
amounts and stock plans have been adjusted retroactively for the one
hundred-for-one stock split.
In May 1997, the board of directors approved the declaration of a
four-for-three stock split of the outstanding common and preferred stock
effected in the form of a dividend to shareholders of record on the effective
date of the Registration Statement on Form S-1 with respect to the IPO.
Concurrent with the IPO, the number of authorized shares of common stock of the
Company increased from 20 million to 100 million while the number of authorized
shares of preferred stock remained two million. All references in the
consolidated financial statements to shares, share prices, per share amounts and
stock plans have been adjusted retroactively for the four-for-three stock split.
4. NET LOSS PER SHARE
In February 1997, Statement of Financial Accounting Standards No. 128,
"Earnings per Share" (FAS 128), was issued. FAS 128 specifies the computation,
presentation and disclosure requirements for earnings per share (EPS) for
entities with publicly held common stock or potential common stock. FAS 128 is
effective for financial statements issued for periods ending after December 15,
1997, including interim periods; earlier application is not permitted. Once
adopted, FAS 128 requires restatement of all prior-period EPS data presented.
Basic net loss per share has been computed in accordance with FAS 128 using the
weighted average number of common shares outstanding after giving retroactive
effect to the four-for-three stock split effected in August 1997.
Diluted net loss per share gives effect to all dilutive potential common
shares that were outstanding during the period. The Company has a net loss for
the nine months ended September 30, 1996 and 1997; therefore, none of the
options or warrants outstanding at period ends were included in the diluted net
loss per share calculations for the nine months ended September 30, 1996 and
1997, since they were anti-dilutive.
Options granted during 1996 and options and warrants granted during 1996
and 1997 which were not included in the computation of diluted EPS for the nine
month periods ended September 30, 1996 and 1997, respectively, were as follows:
<TABLE>
<CAPTION>
EXERCISE
NUMBER OF PRICE
OPTIONS/WARRANTS PER SHARE DATE OF GRANT EXPIRATION DATE
---------------- --------- -------------- ---------------
<S> <C> <C> <C>
450,000.......................... $ 2.01 June 1996 December 2005
53,333.......................... $ 2.01 September 1996 December 2005
251,071.......................... $ 3.11 September 1996 December 2005
53,333.......................... $ 5.25 May 1997 December 2006
345,723.......................... $ 7.20 May 1997 May 1999
15,333.......................... $11.05 August 1997 December 2006
261,000.......................... $15.30 September 1997 December 2006
</TABLE>
5. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1997, Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" (FAS 130) was issued. FAS 130 establishes
standards for reporting and display of comprehensive income and its components
(revenues, expenses, gains, and losses) in a full set of general-purpose
financial statements. It requires all items that are required to be recognized
under accounting standards as components of comprehensive income be reported in
a financial statement that is displayed with the same prominence as other
financial statements. FAS 130 is effective for fiscal years beginning after
December 15, 1997. The
F-28
<PAGE> 105
PEGASUS SYSTEMS, INC.
NOTES TO CONSOLIDATED INTERIM FINANCIAL STATEMENTS -- (CONTINUED)
Company will adopt this Statement in the year ending December 31, 1998.
Reclassification of financial statements for earlier periods provided for
comparative purposes is required upon adoption.
In June 1997, Statement of Financial Accounting Standards No. 131,
"Disclosure About Segments of an Enterprise and Related Information" (FAS 131)
was issued. FAS 131 establishes standards for the way that public business
enterprises report information about operating segments in annual financial
statements and requires that those enterprises report selected information about
operating segments in interim financial reports issued to shareholders. FAS 131
is effective for financial statements for periods beginning after December 15,
1997. The Company will adopt FAS 131 in the year ending December 31, 1998.
6. WARRANT
In May 1997, the Company issued a warrant to a customer for the purchase of
345,723 shares of the Company's common stock as part of a five year contract
involving a wide range of the Company's services. The warrant is exercisable
during the two year period ended May 12, 1999 at an exercise price of $7.20 per
share. The Company used the Black-Scholes option pricing model to value the
warrant. A contract asset of $238,000 was recorded in May 1997, which will be
amortized ratably over the associated five year contract period.
7. STOCK OPTIONS
The Company's 1997 stock option plan was approved by the board of directors
and shareholders in March 1997 and authorizes the issuance of up to 333,333
shares of the Company's common stock in the form of incentive stock options and
nonqualified stock options to employees of the Company. The board of directors
amended the 1997 stock option plan in September 1997, subject to shareholder
approval which is expected to occur at the 1998 annual shareholders meeting, to
provide for the annual grant to the Company's non-employee directors of options
to purchase the Company's common stock. In September 1997, options to purchase
an aggregate of 247,000 shares of common stock at an exercise price of $15.30
were issued under the 1996 and 1997 plans to executives and employees. Also,
options to purchase an aggregate of 16,000 shares of common stock at the same
exercise price of $15.30 were issued under such plans to non-employee directors.
The executive and employee options will become exercisable over a period of four
years. The non-employee director options will become exercisable at the 1998
annual shareholders meeting, which is a period of approximately eight months
from the date of grant. The Company has accounted for these options using the
intrinsic value method prescribed in APB 25. Accordingly, unearned compensation
related to the options is being recognized ratably over the related vesting
periods.
8. STOCK PURCHASE PLAN
In September 1997, the Company's Board of Directors adopted the Pegasus
Systems, Inc. 1997 Employee Stock Purchase Plan subject to shareholder approval
which is expected to occur at the 1998 annual meeting of the Company's
shareholders. The Company has reserved 500,000 shares of its common stock for
purchase by its employees pursuant to the terms of this plan. Eligible
participating employees of the Company may elect to have an amount up to, but
not in excess of, 10% of their regular salary or wages withheld for the purpose
of purchasing the Company's common stock. Under the 1997 Employee Stock Purchase
Plan, an eligible employee who participates in the Plan will be granted an
option at the beginning of each year of the Plan (the "Offering Commencement
Date") to purchase at the end of that year (the "Offering Termination Date")
shares of common stock using the amounts that have accumulated from the
employee's payroll deductions made during that year at a price that is 85% of
the closing price of the common stock on the Nasdaq National Market or any other
national securities exchange on the Offering Commencement Date or the Offering
Termination Date, whichever is lower.
F-29
<PAGE> 106
INDEPENDENT AUDITOR'S REPORT
To the Shareholders
The Hotel Clearing Corporation
We have audited the accompanying consolidated balance sheets of The Hotel
Clearing Corporation and its subsidiary as of December 31, 1993 and 1994, and
the related consolidated statements of operations, shareholders' deficit and
cash flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of The Hotel
Clearing Corporation as of December 31, 1993 and 1994, and the results of its
operations and its cash flows for the years then ended in conformity with
generally accepted accounting principles.
Belew Averitt LLP
Dallas, Texas
April 4, 1995, except for
Note 12, as to which the
date is August 21, 1995
F-30
<PAGE> 107
THE HOTEL CLEARING CORPORATION
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1993 AND 1994
ASSETS
<TABLE>
<CAPTION>
1993 1994
----------- -----------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 37,835 $ 7,612
Accounts receivable, net (Note 3)......................... 215,382 194,493
Accounts receivable from affiliates....................... 14,496 17,732
Prepaid expenses.......................................... 21,230 15,923
----------- -----------
Total current assets.............................. 288,943 235,760
Property and equipment, net (Note 4)........................ 210,445 209,640
----------- -----------
Total assets...................................... $ 499,388 $ 445,400
=========== ===========
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities:
Accounts payable and accrued liabilities.................. $ 368,920 $ 601,177
Accounts payable to affiliates............................ 29,126 187,472
Current portion of unearned income........................ 274,510 352,941
Line-of-credit (Note 6)................................... 180,000 --
Current portion of notes payable to affiliates (Note 6)... -- 786,478
Current portion of capital lease obligations (Note 5)..... 33,500 52,528
----------- -----------
Total current liabilities......................... 886,056 1,980,596
Capital lease obligations, net of current portion (Note
5)........................................................ 58,381 48,929
Notes payable to affiliates (Note 6)........................ 747,139 --
Unearned income, net of current portion (Note 12)........... 1,725,490 1,372,549
----------- -----------
Total liabilities................................. 3,417,066 3,402,074
Commitments and contingencies (Notes 8 and 12).............. -- --
Shareholders' deficit (Note 7):
Preferred stock:
Series A............................................... 2 2
Series B............................................... 1 1
Common stock.............................................. 10 10
Additional paid-in capital................................ 1,702,885 1,702,885
Accumulated deficit....................................... (4,620,576) (4,659,572)
----------- -----------
Total shareholders' deficit....................... (2,917,678) (2,956,674)
----------- -----------
Total liabilities and shareholders' deficit....... $ 499,388 $ 445,400
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-31
<PAGE> 108
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1993 AND 1994
<TABLE>
<CAPTION>
1993 1994
----------- ----------
<S> <C> <C>
Net revenues (Note 8):
Shareholder............................................... $ 1,515,686 $2,397,236
Nonshareholder............................................ 8,691 349,255
----------- ----------
1,524,377 2,746,491
Operating expenses:
General and administrative expenses....................... 2,215,356 1,763,754
Other operating expenses.................................. 531,345 878,444
Depreciation and amortization............................. 113,064 65,216
----------- ----------
Total operating expenses.......................... 2,859,765 2,707,414
----------- ----------
Operating income (loss)..................................... (1,335,388) 39,077
Interest expense............................................ 97,448 78,073
----------- ----------
Loss before income taxes and extraordinary gain............. (1,432,836) (38,996)
Income taxes (Note 9)....................................... -- --
----------- ----------
Loss before extraordinary gain.............................. (1,432,836) (38,996)
Extraordinary gain (Note 11)................................ 269,310 --
----------- ----------
Net loss.................................................... $(1,163,526) $ (38,996)
=========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-32
<PAGE> 109
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' DEFICIT
YEARS ENDED DECEMBER 31, 1993 AND 1994
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK
------------------ ------------------ ADDITIONAL
NUMBER OF NUMBER OF PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- ------ --------- ------ ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1992............. -- $-- 9 $ 1 $ 550,997 $(3,457,050) $(2,906,052)
105-for-1 stock split.................. -- -- 936 9 (9) -- --
Preferred stock issuance:
Series A............................. 210 2 -- -- 1,049,998 -- 1,050,000
Series B............................. 20 1 -- -- 1,899 -- 1,900
Conversion of note payable into common
stock................................ -- -- 105 -- 100,000 -- 100,000
Net loss............................... -- -- -- -- -- (1,163,526) (1,163,526)
--- --- ----- --- ---------- ----------- -----------
Balance, December 31, 1993............. 230 3 1,050 10 1,702,885 (4,620,576) (2,917,678)
Net loss............................... -- -- -- -- -- (38,996) (38,996)
--- --- ----- --- ---------- ----------- -----------
Balance, December 31, 1994............. 230 $ 3 1,050 $10 $1,702,885 $(4,659,572) $(2,956,674)
=== === ===== === ========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-33
<PAGE> 110
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1993 AND 1994
<TABLE>
<CAPTION>
1993 1994
----------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $(1,163,526) $ (38,996)
Adjustments to reconcile net loss to cash provided (used)
by operating activities:
Loss on sale of equipment.............................. -- 125
Depreciation and amortization.......................... 113,064 65,216
Reclassification of accrued interest to notes payable
to affiliates......................................... 56,107 58,614
Gain on extinguishment of debt......................... (269,310) --
Deferred income recognition............................ -- (274,510)
(Increase) decrease in:
Accounts receivable, net............................. (166,190) 20,889
Accounts receivable from affiliates.................. (14,496) (3,236)
Prepaid expenses..................................... (6,230) 5,307
Increase (decrease) in:
Accounts payable and accrued liabilities............. (55,410) 232,257
Accounts payable to affiliate........................ (14,163) 158,346
----------- ---------
Net cash provided (used) by operating
activities...................................... (1,520,154) 224,012
Cash flows from investing activities:
Purchase of property and equipment........................ (34,266) (42,612)
Proceeds from sale of equipment........................... -- 21,152
----------- ---------
Net cash used by investing activities............. (34,266) (21,460)
Cash flows from financing activities:
Proceeds from issuance of stock........................... 1,900 --
Proceeds from installment payments on stock purchase...... 1,050,000 --
Proceeds from contract commitment -- deferred income...... 2,000,000 --
Proceeds (repayment) of line-of-credit.................... 180,000 (180,000)
Repayment of notes payable................................ (1,640,000) (19,275)
Repayment of capital leases............................... (14,437) (33,500)
----------- ---------
Net cash provided (used) by financing
activities...................................... 1,577,463 (232,775)
----------- ---------
Net increase (decrease) in cash and cash equivalents........ 23,043 (30,223)
Cash and cash equivalents, beginning of period.............. 14,792 37,835
----------- ---------
Cash and cash equivalents, end of period.................... $ 37,835 $ 7,612
=========== =========
Supplemental disclosures of cash flow information --Interest
paid...................................................... $ 70,789 $ 19,458
=========== =========
Supplemental schedule of noncash investing and financing
activities:
Issuance of capital lease obligation for computer
equipment.............................................. $ 106,318 $ 43,076
=========== =========
Conversion of note payable to common stock................ $ 100,000 $ --
=========== =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-34
<PAGE> 111
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1993 AND 1994
1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Organization and background -- The Hotel Clearing Corporation (HCC) was
incorporated as a Delaware corporation on July 25, 1991, to market and operate
an automated commission payment processing service that consolidates commissions
paid by participating hotels to a participating travel agency into a single
monthly payment and provides participants with comprehensive transaction
reports. HCC collects commissions from participating hotel chains and remits
these commissions to participating travel agents.
Consolidation -- The consolidated financial statements include the accounts
of HCC and its wholly-owned subsidiary, The Hotel Clearing Corporation (U.K.)
Limited (HCC U.K.) (collectively, the Company). HCC U.K. commenced operations in
England on September 2, 1993 to market and provide related services for travel
agents and hotel chains operating in Europe. All significant intercompany
balances and transactions have been eliminated.
Cash and cash equivalents -- The Company considers all highly-liquid
investments with an original maturity of three months or less when purchased to
be cash equivalents.
Software development costs -- All costs incurred in the internal
development of computer software used in delivery of the Company's services are
expensed until a product design and a working model of the software have been
tested and completed. Thereafter, any further development or production costs
are capitalized. Maintenance and customer support costs are expensed when
incurred. Capitalized costs are being amortized over three to five years using
the straightline method. During 1993, the Company amortized approximately
$78,000 of capitalized software costs. No software development costs were
capitalized in 1993 or 1994.
Property and equipment -- Property and equipment are recorded at cost and
are depreciated using the straight-line method over their estimated useful
lives, ranging from five to seven years. Expenditures for maintenance and
repairs, as well as minor renewals, are charged to operations as incurred.
Betterments and major renewals are capitalized. Upon retirement or sale of an
asset, the cost of the asset and the related accumulated depreciation and
amortization are removed from the accounts and any resulting gain or loss is
credited or charged to operations.
Leasehold improvements -- Leasehold improvements are recorded at cost and
are amortized using the straight-line method over four years, which is the life
of the lease.
Revenues -- HCC's revenues are derived primarily from travel agencies. HCC
processes commission payments to travel agencies on behalf of both shareholder
and nonshareholder hotels. HCC also provides transaction detail reports and
hotel booking reconciliation services to travel agencies. For these services,
HCC receives a percentage of the travel agencies' commissions paid through HCC.
HCC also earns transaction fees from the participating hotels. These revenues
are recorded as earned throughout the year. Revenue related to term contracts
are deferred and amortized into income over the life of the contracts. For the
years ended December 31, 1993 and 1994, HCC's revenues from hotels are presented
net of commission payments to travel agencies of $22,211,781 and $34,218,496,
respectively.
Federal income taxes -- Effective January 1, 1993, the Company adopted
Statement of Financial Accounting Standards No. 109 (SFAS 109), "Accounting for
Income Taxes" which requires an asset and liability approach to financial
accounting for income taxes. In the event differences between the financial
reporting basis and the tax basis of HCC's assets and liabilities result in
deferred tax assets, SFAS 109 requires an evaluation of the probability of being
able to realize the future benefits indicated by such assets. A valuation
allowance is provided for a portion or all of the deferred tax assets when there
is an uncertainty regarding the Company's ability to recognize the benefits of
the assets in future years.
F-35
<PAGE> 112
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Concentration of credit risk -- The Company's financial instruments exposed
to concentration of credit risk consist primarily of its trade receivables. The
majority of receivables are due from shareholders who are well-established
entities in the travel industry. As a result, credit risk is considered limited.
Reclassifications -- Certain 1993 balances have been reclassified to
conform to the 1994 presentation.
2. OPERATIONS
During 1994, the Company increased revenues $1,222,114 to $2,746,491,
reduced operating expenses $152,351 to $2,707,414 and generated positive cash
flows of $224,012 from operations, yet the Company incurred a net loss of
$38,996 and has a shareholders' deficit of $2,956,674 at December 31, 1994. The
Company's business plan contemplates additional revenue increases through the
addition of more hotels and travel agents to its commission payment services
sufficient to meet current working capital needs to nonshareholders.
In addition, the Company has plans to negotiate an extension of payment
terms on existing short-term debt to shareholders of $655,725 and accrued
interest of $130,756. However, the Company may continue to require additional
capital contributions and borrowings from shareholders. Common stock agreements
contain provisions whereby the shareholders are required, as defined, to
contribute additional capital and lend additional amounts to the Company. There
can be no guarantee, however, that funds from these sources or any other source
will be available to the Company (see Note 13).
3. ACCOUNTS RECEIVABLE
The Company collects travel agents' commissions from hotel chains and,
after retaining a portion of these commissions, remits net commissions to the
travel agents. Net accounts receivable included in the accompanying consolidated
balance sheets were as follows:
<TABLE>
<CAPTION>
1993 1994
----------- -----------
<S> <C> <C>
Amounts due from hotel chains........... $ 2,256,086 $ 3,021,542
Net commissions due to travel agents.... (2,040,704) (2,827,049)
----------- -----------
$ 215,382 $ 194,493
=========== ===========
</TABLE>
The accounts receivable from affiliates results from transaction fees
charged to shareholder hotels.
4. PROPERTY AND EQUIPMENT
Property and equipment at December 31 consisted of the following:
<TABLE>
<CAPTION>
1993 1994
----------- -----------
<S> <C> <C>
Computer equipment...................... $ 111,587 $ 129,031
Furniture and equipment................. 85,105 112,697
Office equipment........................ 58,022 75,359
Leasehold improvements.................. 1,724 1,724
----------- -----------
256,438 318,811
Less accumulated depreciation........... (45,993) (109,171)
----------- -----------
$ 210,445 $ 209,640
=========== ===========
</TABLE>
F-36
<PAGE> 113
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
5. CAPITAL LEASES
Assets recorded under capital leases are recorded at the lower of present
value of future minimum lease payments or the fair value of the asset. Total
assets recorded under capital leases at December 31, 1993 and 1994 were $106,318
and $149,394, respectively, net of accumulated amortization of $11,375 and
$51,615, respectively. The assets are amortized using the straight-line method
over the shorter of their useful lives or the term of the related leases.
Amortization of assets under capital leases are included in depreciation and
amortization expense.
Future minimum lease payments and related interest are as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
------------
<S> <C>
1995.................................. $ 62,937
1996.................................. 37,404
1997.................................. 15,828
--------
Total minimum lease payments............ 116,169
Less interest........................... 14,712
--------
101,457
Less current portion.................... 52,528
--------
$ 48,929
========
</TABLE>
The interest rates on the capital leases range from 11.0% to 12.1%, which
were imputed at the inception of the leases.
6. NOTES PAYABLE
Notes payable consisted of the following:
<TABLE>
<CAPTION>
1993 1994
--------- ---------
<S> <C> <C>
Notes payable to shareholders, bearing interest at the prime
rate plus 2.0% due December 31, 1995; the prime rate at
December 31, 1994 was 8.5%; uncollateralized.............. $ 747,139 $ 786,478
Convertible line-of-credit to a preferred stock shareholder;
accruing interest at the prime rate plus 2.0%; expires
June 1, 1994; uncollateralized; paid on June 1, 1994...... 180,000 --
--------- ---------
927,139 786,478
Less current portion........................................ (180,000) (786,478)
--------- ---------
$ 747,139 $ --
========= =========
</TABLE>
7. SHAREHOLDERS' DEFICIT
In October, 1992, the Company entered into a non-refundable agreement with
an investment group to purchase 210 shares of the Company's preferred stock for
$1,500,000. The purchase was to be made in monthly installments of $150,000
which began October 1, 1992. On August 10, 1993, the investment group completed
the funding of $1,500,000, at which time the 210 shares of preferred stock were
issued.
On August 10, 1993, the Board of Directors amended the Articles of
Incorporation to increase the authorized number of common shares from 105,000 to
210,000 shares. In addition, the Board of Directors established a Series A and
Series B preferred stock with 52,500 shares authorized for each series at a par
value
F-37
<PAGE> 114
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
of $.01 per share. Such shares have preferential dividend rights. The Board of
Directors' declared stock split of 105-for-1 for both common and preferred
shares has been reflected in the financial statements. In August, 1993, the
Company sold 20 shares of the Series B preferred stock to an officer of the
Company for $95 per share.
On December 31, 1993, a $100,000 note payable to a company was converted to
105 shares of common stock. The conversion did not result in a gain or loss.
At December 31, 1994, the Company had the following shares issued and
outstanding:
<TABLE>
<CAPTION>
STOCK STOCK PAR
AUTHORIZED ISSUED VALUE
---------- ------ -----
<S> <C> <C> <C>
Common stock.............................................. 210,000 1,050 $.01
Preferred stock:
Series A................................................ 52,500 210 $.01
Series B................................................ 52,500 20 $.01
</TABLE>
The Company has agreements with its common shareholders whereby it can
require them to make additional capital contributions. Also under the provisions
of the agreements, the Company can require all common shareholders to lend
additional funds to the Company in such amounts as determined by the Board of
Directors. In the event a shareholder fails to contribute capital or lend funds
to the Company, the Company can acquire the shareholder's shares at $.01 per
share.
8. RELATED PARTIES
The Company derives a substantial portion of its revenue from
shareholder-owned companies. Also, much of the revenue is generated indirectly
by shareholders as a function of HCC's role as the consolidator and payor of
commissions to travel agencies. HCC makes commission payments to travel agencies
on behalf of hotel properties and receives a percentage of the commission
payment from the travel agent for this service. A summary of revenues is as
follows:
<TABLE>
<CAPTION>
1993 1994
------------------- -------------------
REVENUES AMOUNT % AMOUNT %
-------- ---------- ----- ---------- -----
<S> <C> <C> <C> <C>
Shareholders -- direct..................... $ 168,749 11.0% $ 232,173 8.5%
Shareholders -- indirect................... 1,346,937 88.4% 2,165,063 78.8%
---------- ----- ---------- -----
Total generated by shareholders directly
and indirectly........................... 1,515,686 99.4% 2,397,236 87.3%
All other revenue.......................... 8,691 0.6% 349,255 12.7%
---------- ----- ---------- -----
Total............................ $1,524,377 100.0% $2,746,491 100.0%
========== ===== ========== =====
</TABLE>
The Company and The Hotel Industry Switch Company (THISCO) have management
and certain shareholders in common. The Company pays a management fee to THISCO,
which represents a portion of THISCO's management salaries and related benefits
attributable to the Company's operations. Management fees paid to THISCO during
1993 and 1994 were $156,928 and $290,465, respectively.
The Company utilizes THISCO's telecommunications network and various
equipment. During 1993 and 1994, the Company paid THISCO $101,490 and $46,096,
respectively, for the use of the network and this equipment. In 1993, THISCO
also transferred $22,537 of furniture and equipment and the related capital
lease obligation to HCC.
F-38
<PAGE> 115
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A shareholder provided services to the Company, including facility
management, consulting and software development. During 1993 and 1994, the
Company recognized expense in the amount of approximately $30,000 and $33,000,
respectively, for those services.
Persons related to an officer of the Company have provided printing, design
and procurement services to the Company. During 1993 and 1994, the Company paid
approximately $17,000 and $11,000, respectively, relating to these services.
The Company has an agreement to sublease office space from THISCO for a
four-year period under an operating lease agreement. Amounts paid to THISCO
under this agreement during 1993 and 1994 were $106,454 and $105,863,
respectively. Estimated future minimum lease payments due to THISCO at December
31, 1994 are as follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
------------
<S> <C>
1995............................................ $119,000
1996............................................ 126,000
1997............................................ 21,000
--------
$266,000
========
</TABLE>
9. INCOME TAXES
During 1994, the Company recorded a long-term deferred tax asset of
approximately $1,514,000, derived from net operating loss carryforwards and
excess book depreciation over tax depreciation. The deferred tax asset is fully
reserved because of uncertainty regarding the Company's ability to recognize the
benefit of the asset in future years.
The components of deferred income tax assets (liabilities) are as follows:
<TABLE>
<CAPTION>
1993 1994
----------- -----------
<S> <C> <C>
Net operating loss carryforward........................... $ 1,542,591 $ 1,509,551
Depreciation and amortization............................. (4,619) 4,391
Valuation allowance....................................... (1,537,972) (1,513,942)
----------- -----------
Net deferred tax asset.................................... $ -- $ --
=========== ===========
</TABLE>
At December 31, 1994, the Company had net operating loss carryforwards for
tax reporting purposes of approximately $4,440,000. The net operating loss
carryforwards will expire beginning in the year 2006, if not previously
utilized.
The provision for income taxes is as follows:
<TABLE>
<CAPTION>
1993 1994
-------- --------
<S> <C> <C>
Current:
Federal................................................... $ -- $ --
State..................................................... -- --
-------- --------
Deferred.................................................... -- --
-------- --------
$ -- $ --
======== ========
</TABLE>
F-39
<PAGE> 116
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A reconciliation between the statutory Federal income tax rate and the
effective income tax rates is as follows:
<TABLE>
<CAPTION>
1993 1994
------ ------
<S> <C> <C>
Statutory Federal income tax rate........................... 34.0% 34.0%
Valuation allowance......................................... (34.0%) (34.0%)
Provision for income taxes.................................. 0.0% 0.0%
</TABLE>
10. EMPLOYEE BENEFIT PLAN
The Company co-sponsors, with THISCO, a 401(k) defined contribution
retirement plan covering full-time employees who have completed one year of
service and obtained the age of twenty-one. According to the plan agreement, the
Company has committed to match employee contributions up to 3.0% of the
employee's qualified salary through December 31, 1994 and 5.0% thereafter. The
Company contributed $20,904 and $19,791 to the Plan during 1993 and 1994,
respectively.
11. EXTRAORDINARY GAIN
The 1993 extraordinary gain of $269,310 represents the Company's net gain
on the settlement of a note payable to a vendor.
12. CONTINGENCIES AND COMMITMENTS
In June, 1993, HCC received $2,000,000 from Citicorp in exchange for a
five-year non-cancelable data processing contract and recorded the amount as
deferred income. The non-cancelable contract requires Citicorp to process
transactions and generate various reports in exchange for a processing fee. The
contract requires HCC to maintain an annual minimum volume of transactions. If
the annual minimum volume is not attained, HCC is required to pay Citicorp an
additional processing fee for each transaction under the minimum volume. HCC is
recognizing the $2,000,000 of deferred income over the life of the contract,
according to the volume of guaranteed transactions, as defined by the contract.
During 1994, HCC recognized $274,510 of the $2,000,000 deferred income. However,
because HCC did not meet its annual minimum volume of transactions, it also
recorded an additional processing fee of $215,351.
13. SUBSEQUENT EVENTS
Subsequent to December 31, 1994, the Company issued an additional 105
shares of common stock for $250,000 and obtained a short-term loan from a
shareholder in the amount of $200,000. The short-term loan accrues interest at
the prime rate plus 2.0% and is due on or before December 30, 1995. In August,
1995 the Company repurchased the 105 shares for $250,000.
Pegasus Systems, Inc. (Pegasus) was formed to combine the operations of HCC
and THISCO. For accounting purposes, the combination was recorded as a purchase
of HCC. In July, 1995, Pegasus issued 4,934,667 shares of its common stock in
exchange for all of the outstanding capital stock of THISCO and 83.3% of the
ownership of HCC (the Reorganization). Lodging Network, Inc. (LNI) retained 210
shares of HCC preferred stock, representing a 16.7% minority ownership interest
in HCC. In conjunction with the Reorganization, LNI was granted an option (LNI
Option), expiring in July 1998, to exchange its 16.67% ownership interest in HCC
for 448,667 shares of Pegasus' common stock.
Also as part of this Reorganization, certain shareholders of the Company
agreed to contribute outstanding debt totaling $337,500 to capital, effective
immediately prior to closing. The remaining debt, after these contributions were
renewed and extended, expires five years from the Agreement's closing date at an
interest rate of prime plus 1.0%.
F-40
<PAGE> 117
THE HOTEL CLEARING CORPORATION
CONSOLIDATED BALANCE SHEET
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
JUNE 30,
1995
-----------
<S> <C>
Current assets:
Cash and cash equivalents................................. $ 88,102
Accounts receivable, net.................................. 297,890
Accounts receivable from affiliates....................... 25,853
Prepaid expenses.......................................... 2,842
-----------
Total current assets.............................. 414,687
Property and equipment, net................................. 245,082
Other non-current assets.................................... 18,432
-----------
Total assets...................................... $ 678,201
===========
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities:
Accounts payable and accrued liabilities.................. $ 454,136
Accounts payable to affiliates............................ 244,020
Current portion of unearned income........................ 425,722
Current portion of notes payable to affiliates............ 855,725
Current portion of capital lease obligations.............. 51,727
-----------
Total current liabilities......................... 2,031,330
Capital lease obligations, net of current portion........... 21,793
Unearned income, net of current portion..................... 1,156,863
-----------
Total liabilities................................. 3,209,986
Shareholders' deficit:
Preferred stock:
Series A............................................... 2
Series B............................................... 1
Common stock.............................................. 11
Additional paid-in capital................................ 1,953,834
Accumulated deficit....................................... (4,485,633)
-----------
Total shareholders' deficit....................... (2,531,785)
-----------
Total liabilities and shareholders' deficit....... $ 678,201
===========
</TABLE>
See accompanying notes to consolidated interim financial statements.
F-41
<PAGE> 118
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
------------------------
1994 1995
---------- ----------
<S> <C> <C>
Net revenues:
Shareholder............................................... $1,122,007 $1,481,282
Nonshareholder............................................ 144,303 677,993
---------- ----------
Total revenues.................................... 1,266,310 2,159,275
Cost of services............................................ 245,760 674,880
Research and development.................................... 205,694 356,439
General and administrative expenses......................... 256,229 372,779
Marketing and promotion expenses............................ 406,199 486,555
Depreciation and amortization............................... 31,093 44,103
---------- ----------
Operating income............................................ 121,335 224,519
Other expense:
Interest expense............................................ 40,562 50,580
---------- ----------
Income before income taxes.................................. 80,773 173,939
Income taxes................................................ -- --
---------- ----------
Net income.................................................. $ 80,773 $ 173,939
========== ==========
</TABLE>
See accompanying notes to consolidated interim financial statements.
F-42
<PAGE> 119
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENT OF SHAREHOLDERS' DEFICIT
(UNAUDITED)
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK
------------------ ------------------ ADDITIONAL
NUMBER OF NUMBER OF PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- ------ --------- ------ ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994.......... 230 $ 3 1,050 $10 $1,702,885 $(4,659,572) $(2,956,674)
Issuance of common stock.............. -- -- 105 1 249,999 -- 250,000
Issuance of series B preferred stock,
par value $.01...................... 10 -- -- -- 950 -- 950
Net income............................ -- -- -- -- -- 173,939 173,939
--- --- ----- --- ---------- ----------- -----------
Balance at June 30, 1995.............. 240 $ 3 1,155 $11 $1,953,834 $(4,485,633) $(2,531,785)
=== === ===== === ========== =========== ===========
</TABLE>
See accompanying notes to consolidated interim financial statements.
F-43
<PAGE> 120
THE HOTEL CLEARING CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
----------------------
1994 1995
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income............................ $ 80,773 $ 173,939
Adjustments to reconcile net income to
cash provided (used) by operating
activities:
Depreciation and amortization...... 31,093 44,103
Proceeds from increase in long-term
note payable accrued interest..... 27,109 --
Deferred income recognition........ (81,483) (142,905)
(Increase) decrease in:
Accounts receivable, net......... 15,087 (103,397)
Accounts receivable from
affiliates...................... (1,488) (8,121)
Prepaid expenses................. 21,230 (5,351)
Increase (decrease) in:
Accounts payable and accrued
liabilities..................... (190,688) (277,794)
Accounts payable to affiliates... 220,575 56,548
--------- ---------
Net cash provided (used) by
operating activities........ 122,208 (262,978)
--------- ---------
Cash flows used by investing
activities --
Purchase of property and equipment.... (3,060) (79,545)
--------- ---------
Cash flows from financing activities:
Proceeds from issuance of stock....... -- 250,950
Proceeds from line-of-credit.......... 120,000 200,000
Repayment of line-of-credit........... (250,000) --
Repayment of notes payable............ (10,732) --
Repayment of capital leases........... (16,251) (27,937)
--------- ---------
Net cash provided (used) by
financing activities........ (156,983) 423,013
--------- ---------
Net increase (decrease) in cash and cash
equivalents........................... (37,835) 80,490
Cash and cash equivalents, beginning of
period................................ 37,835 7,612
--------- ---------
Cash and cash equivalents, end of
period................................ $ -- $ 88,102
========= =========
</TABLE>
See accompanying notes to consolidated interim financial statements.
F-44
<PAGE> 121
THE HOTEL CLEARING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying financial statements include the consolidated accounts of
The Hotel Clearing Corporation (HCC) and its wholly owned subsidiary, Pegasus
Systems, Inc. (U.K.) Limited (HCC U.K.) (collectively, the Company). All
significant intercompany balances have been eliminated in consolidation.
HCC was formed in July 1991 as a Delaware corporation to market and operate
an international automated commission payment processing service that
consolidates commissions paid by participating hotels to a participating travel
agency into a single monthly payment and provides participants with
comprehensive transaction reports. HCC collects commissions from participating
hotel chains and remits these commissions to participating travel agents.
HCC U.K., a wholly-owned subsidiary of HCC, was formed in September 1993 in
England to market and provide services for travel agents and hotel chains
operating in Europe, Africa and Asia.
The financial information presented herein should be read in conjunction
with the Company's consolidated financial statements as of and for the year
ended December 31, 1994. The foregoing unaudited interim consolidated financial
statements have been prepared to comply with the format of Pegasus Systems, Inc.
(see Note 2) and reflect all adjustments (of a normal recurring nature) which
are, in the opinion of management, necessary for a fair presentation of the
results of the interim periods. The results for interim periods are not
necessarily indicative of results to be expected for the year.
2. SUBSEQUENT EVENTS
The accompanying unaudited interim consolidated financial statements
present the operations of HCC for the period from January 1, 1995 through June
30, 1995. In July 1995, Pegasus Systems, Inc. (Pegasus) was formed as a Delaware
holding company to combine the operations of HCC and The Hotel Industry Switch
Company (THISCO). THISCO was formed in September 1988 to market and operate an
international automated interface between travel agency, hotel and global travel
reservation systems.
Effective in July 1995, Pegasus issued 4,934,667 shares of its common stock
in exchange for all of the outstanding capital stock of THISCO and 83.3% of the
ownership of HCC (the Reorganization). Lodging Network, Inc. (LNI) retained 210
shares of HCC preferred stock, representing a 16.7% minority ownership interest
in HCC.
The Reorganization brought THISCO and HCC together under the control of
Pegasus and was initiated to integrate and expand the existing businesses of
THISCO and HCC. Pegasus was formed immediately prior to the transaction for the
purpose of combining the two operations into a single operating entity. Prior to
the Reorganization, THISCO and HCC were primarily controlled by a common (though
not identical) group of shareholders and a common management group. For
accounting purposes, the Reorganization was treated as an acquisition of HCC and
accounted for as a purchase business combination. Accordingly, the HCC assets
acquired and liabilities assumed were acquired at their fair values. The amount
of the purchase price ($2.7 million) in excess of the fair value of net assets
acquired has been recorded as goodwill and will be amortized on a straight-line
basis over 15 years.
Subsequent to June 30, 1995, the 105 shares issued during the six months
ended June 30, 1995 were reacquired and retired by the Company at the original
issuance price.
F-45
<PAGE> 122
DESCRIPTION OF INSIDE BACK COVER
Pegasus Systems Inc. logo.
Depiction of computer screens showing pages from the TravelWeb site. Pages
show a hotel's information and picture, resource information available from
TravelWeb, TravelWeb home page and information for Click-it! Weekends.
THISCO logo with caption reading:
The THISCO service improves the efficiency and effectiveness of the hotel
room reservation process by enabling travel agents to electronically access
hotel room inventory information and conduct reservation transactions.
TravelWeb logo with caption reading:
The TravelWeb service enables consumers to access hotel room inventory
information and conduct reservation transactions over the Internet.
HCC logo with caption reading:
The HCC service improves the efficiency and effectiveness of the hotel
commission payment process for travel agents by consolidating payments and
providing comprehensive transaction reports.
<PAGE> 123
================================================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, ANY SELLING STOCKHOLDER
OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL OR TO ANY PERSON TO WHOM IT IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Prospectus Summary................ 3
Risk Factors...................... 8
Use of Proceeds................... 16
Dividend Policy................... 16
Price Range of Common Stock....... 16
Capitalization.................... 17
Selected Consolidated Financial
Data........................... 18
Management's Discussion and
Analysis of Financial Condition
and Results of Operations...... 20
Business.......................... 31
Management........................ 54
Certain Transactions.............. 63
Principal and Selling
Stockholders................... 65
Description of Capital Stock...... 66
Shares Eligible for Future Sale... 68
Underwriting...................... 70
Legal Matters..................... 71
Experts........................... 71
Additional Information............ 72
Index to Consolidated Financial
Statements..................... F-1
</TABLE>
================================================================================
================================================================================
2,100,000 SHARES
[PEGASUS SYSTEMS, INC. LOGO]
PEGASUS SYSTEMS, INC.
COMMON STOCK
---------------------------
PROSPECTUS
---------------------------
HAMBRECHT & QUIST
NATIONSBANC MONTGOMERY
SECURITIES LLC
VOLPE BROWN WHELAN
& COMPANY
, 1998
================================================================================
<PAGE> 124
PART II
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following fees are estimated, except for the SEC and NASD filing fees:
<TABLE>
<S> <C>
SEC filing fee.............................................. $ 11,043
NASD filing fee............................................. 4,244
Blue Sky fees and expenses.................................. 5,000*
Printing and engraving fees................................. 150,000*
Accountants' fees and expenses.............................. 75,000*
Legal fees and expenses..................................... 125,000*
Transfer Agent's fees and expenses.......................... 5,000*
Miscellaneous............................................... 24,713
--------
Total............................................. $400,000
========
</TABLE>
- ---------------
* Estimated
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact that
he is or was a director, officer, employee or agent of the Company may and, in
certain cases, must be indemnified by the Company against, in the case of a non-
derivative action, judgments, fines, amounts paid in settlement and reasonable
expenses (including attorney's fees) incurred by him as a result of such action,
and in the case of a derivative action, against expenses (including attorney's
fees), if in either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company. This indemnification does not apply, in a derivative action, to matters
as to which it is adjudged that the director, officer, employee or agent is
liable to the Company, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Article Eight of the Company's Second Amended and Restated Certificate of
Incorporation provides that no director of the Company shall be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director to the fullest extent permitted by the DGCL.
Article Eight of the Company's Second Amended and Restated Certificate of
Incorporation also provides that the Company may indemnify to the fullest extent
permitted by Delaware law any and all of its directors and officers, or former
directors and officers, or any person who may have served at the Company's
request as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise. In addition, Section 7.7 of the Company's
Amended and Restated Bylaws provides that the Company shall indemnify to the
fullest extent permitted by Delaware law any and all of its directors and
officers, or former directors and officers, or any person who may have served at
the Company's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise and may indemnify to the
fullest extent permitted by Delaware law any employees and agents of the
Company.
Reference is made to the Underwriting Agreement filed as part of Exhibit
1.1 hereto, pursuant to which the Company has agreed to indemnify the
underwriters against certain liabilities under the Securities Act. Reference is
also made to the Rights Agreement filed as Exhibit 4.3 hereto, pursuant to which
certain holders of capital stock of the Company named therein have agreed to
indemnify officers and directors of the Company against certain liabilities
under the Securities Act or the Exchange Act in the event Registrable Securities
(as defined therein) held by such holders are included in the securities to be
registered pursuant to a public offering by the Company.
II-1
<PAGE> 125
The Company has purchased directors' and officers' liability insurance.
Subject to conditions, limitations and exclusions in the policy, the insurance
covers amounts required to be paid for a claim or claims made against directors
and officers for any act, error, omission, misstatement, misleading statement or
breach of duty by directors and officers in their capacity as directors and
officers of the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following information relates to all securities issued or sold by the
Company within the past three years and not registered under the Securities Act.
Effective in July 1995, the Company issued 4,934,667 shares of Common Stock
in exchange for all of the outstanding capital stock of The Hotel Industry
Switch Company ("THISCO") and 83.3% of the outstanding capital stock of The
Hotel Clearing Corporation ("HCC") (the "Reorganization") in accordance with
Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act").
In connection with the Reorganization, the Company granted to Lodging Network,
Inc. an option (the "LNI Option") to exchange the remaining 16.7% of capital
stock of HCC, which was held by LNI, for 448,667 shares of the Company's Common
Stock. In addition, certain members of HCC management agreed to forfeit their
rights to participate in a special HCC bonus plan in return for a cash payment
and the opportunity to purchase an aggregate of 283,333 shares of Common Stock
for $570,874. These shares were issued in accordance with Section 4(2) of the
Securities Act.
In June 1996, the Company issued to Information Associates, L.P. and
Information Associates, C.V. an aggregate of 1,538,463 shares of Series A
Preferred Stock for $4.88 per share in accordance with Section 4(2) of the
Securities Act. In June 1996, the Company issued in accordance with Section 4(2)
of the Securities Act 89,733 shares of the Common Stock and paid $2.0 million to
LNI for the remaining outstanding capital stock of HCC held by LNI, and in
connection therewith, the LNI Option was cancelled. In May 1997, the Company
issued in accordance with Section 4(2) of the Securities Act warrants to
purchase 345,723 shares of the Common Stock to Holiday Inn in connection with
the Distribution Services Agreement between the Company and Holiday Inn.
In June 1996, the Company adopted its 1996 Stock Option Plan, and the
Company has issued to participants in such plan under Section 4(2) of the
Securities Act and Rule 701 of the Securities Act options to purchase an
aggregate of 771,733 shares of Common Stock.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
+1.1 -- Form of Underwriting Agreement by and among the Company,
the Selling Stockholders named therein and the
Underwriters
2.1 -- Contribution and Restructuring Agreement dated effective
as of July 21, 1995 by and among the Company and all of
the stockholders of the Company
3.1 -- Second Amended and Restated Certificate of Incorporation
3.2 -- Second Amended and Restated Bylaws
4.1 -- Specimen of Common Stock Certificate
4.2 -- Second Amended and Restated Certificate of Incorporation
and Second Amended and Restated Bylaws (see Exhibits 3.1
and 3.2)
4.3 -- Rights Agreement dated June 25, 1996 by and among the
Company and certain holders of capital stock of the
Company named therein
4.4 -- Common Stock Purchase Warrant issued to Holiday
Hospitality Corporation
+5.1 -- Opinion of Locke Purnell Rain Harrell (A Professional
Corporation)
10.1 -- Employment Agreement dated June 25, 1996 between the
Company and John F. Davis, III
10.2 -- Employment Agreement dated June 25, 1996 between the
Company and Joseph W. Nicholson
</TABLE>
II-2
<PAGE> 126
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.3 -- Employment Letter Agreement dated August 29, 1996 between
the Company and Jerome L. Galant
10.4 -- Employment Letter Agreement dated May 18, 1997 between
the Company and Michael R. Donahue
10.5 -- 1996 Stock Option Plan, as amended
10.6 -- 1997 Stock Option Plan
10.7 -- Client Service Agreement, as amended, between the Company
and Citibank, N.A.
10.8 -- Facilities Management Agreement dated January 1, 1996
between the Company and Anasazi, Inc.
10.9 -- Service Agreement dated December 13, 1996 between the
Company and Comdisco, Inc.
10.10 -- Service Agreement dated January 17, 1997 between the
Company and Genuity, Inc.
10.11 -- 1997 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 99.1 of Registration Statement on
Form S-8 (File No. 333-40035) filed with the Commission
on November 12, 1997)
*10.12 -- Distribution Services Agreement dated May 12, 1997
between the Company and Holiday Hospitality Corporation
10.13 -- Office Lease dated October 1, 1995 between the Company
and the Utah State Retirement Investment Fund relating to
property located at 3811 Turtle Creek Blvd., Suite 1100,
Dallas, Texas 75219
10.14 -- TravelWeb Participant Agreement dated January 17, 1996
between the Company and Hyatt Corporation
10.15 -- TravelWeb Participant Agreement dated April 18, 1996
between the Company and La Quinta Inns, Inc.
10.16 -- TravelWeb Participant Agreement dated May 31, 1996
between the Company and HFS Incorporated
10.17 -- TravelWeb Participation Agreement dated April 18, 1996
between the Company and ITT Sheraton Corporation
10.18 -- TravelWeb Participant Agreement dated July 15, 1995
between the Company and Inter-Continental Hotels
Corporation
10.19 -- TravelWeb Participant Agreement dated April 27, 1995
between the Company and Hilton Hotels Corporation
10.20 -- TravelWeb Participant Agreement dated May 30, 1995
between the Company and Hilton International Co.
10.21 -- TravelWeb Participant Agreement dated September 3, 1996
between the Company and Choice Hotels International, Inc.
10.22 -- Letter Agreement relating to the TravelWeb service dated
December 20, 1995 between the Company and Marriott
International, Inc.
*10.23 -- HCC Participant Agreement, as amended, between the
Company and Inter-Continental Hotel Corp.
*10.24 -- HCC Participant Agreement, as amended, between the
Company and Westin Hotels Company
*10.25 -- HCC Participant Agreement, as amended between the Company
and Best Western International, Ltd.
*10.26 -- HCC Participant Agreement between the Company and
Marriott International, Inc.
*10.27 -- HCC Participation Agreement, as amended, between the
Company and Choice Hotels International, Inc.
*10.28 -- HCC Participant Agreement, as amended, between the
Company and Hyatt Hotels Corporation
*10.29 -- HCC Participant Agreement between Company and ITT
Sheraton Corporation
*10.30 -- HCC Participant Agreement between the Company and La
Quinta Inns, Inc.
</TABLE>
II-3
<PAGE> 127
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
*10.31 -- HCC Participant Agreement between the Company and HFS
Incorporated
*10.32 -- HCC Participant Agreement, as amended, between the
Company and Utell International, Inc.
*10.33 -- HCC Participant Agreement between the Company and Anasazi
Service Corporation
*10.34 -- HCC Participant Agreement, as amended, between the
Company and Forte Hotels, Inc.
*10.35 -- HCC Participant Agreement, as amended, between the
Company and Promus Hotels, Inc.
+**10.36 -- HCC Participant Agreement between the Company and Choice
Hotels Franchising, Inc.
+**10.37 -- HCC Participant Agreement between the Company and Hilton
Hotels Corporation
+**10.38 -- First Amendment and Addendum to HCC Participant Agreement
between the Company and Promus Hotels, Inc.
*10.39 -- UltraSwitch User Agreement dated November 17, 1995
between the Company and Westin Hotels & Resorts
*10.40 -- UltraSwitch User Agreement dated February 13, 1996
between the Company and Inter-Continental Hotels
Corporation
*10.41 -- UltraSwitch User Agreement dated April 25, 1996 between
the Company and Hilton Hotels Corporation
*10.42 -- UltraSwitch User Agreement dated August 16, 1995 between
the Company and Choice Hotels International, Inc.
*10.43 -- UltraSwitch User Agreement dated December 31, 1995
between the Company and Marriott International, Inc.
*10.44 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and Best Western International
*10.45 -- UltraSwitch User Agreement dated January 4, 1996 between
the Company and HFS Incorporated
*10.46 -- UltraSwitch User Agreement dated February 1, 1996 between
the Company and Hyatt Hotels Corporation
*10.47 -- UltraSwitch User Agreement dated December 15, 1995
between the Company and Promus Hotels, Inc.
*10.48 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and La Quinta Inns, Inc.
*10.49 -- UltraSwitch User Agreement dated January 8, 1997 between
the Company and ITT Sheraton Corporation
*10.50 -- UltraSwitch User Agreement dated February 10, 1996
between the Company and Utell International Ltd.
*10.51 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and Forte Hotels, Inc.
+**10.52 -- First Amendment to UltraSwitch User Agreement dated
January 13, 1998 between the Company and Hilton Hotels
Corporation
*10.53 -- Property Information Distribution Agreement dated May 2,
1997 between the Company and Best Western International,
Inc.
+**10.54 -- Property Information Distribution Agreement dated
September 10, 1997 between the Company and
Inter-Continental Hotel Corporation
*10.55 -- Property Information Distribution Agreement dated March
7, 1997 between the Company and Anasazi, Inc.
*10.56 -- Property Information Distribution Agreement dated March
4, 1997 between the Company and La Quinta Inns, Inc.
*10.57 -- Property Information Distribution Agreement, as amended,
dated April 2, 1997, between the Company and HFS
Incorporated
</TABLE>
II-4
<PAGE> 128
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
*10.58 -- Property Information Distribution Agreement dated June 2,
1997 between the Company and Promus Hotels, Inc.
*10.59 -- Property Information Distribution Agreement dated March
11, 1997 between the Company and Hyatt Hotels Corporation
*10.60 -- United States Subscriber Agreement dated October 12, 1993
between the Company and American Express Travel Related
Services Company, Inc.
*10.61 -- Netbooker Agreement dated June 10, 1997 between the
Company and ITT Sheraton Corporation
+11.1 -- Computation of Per Share Loss
16.1 -- Letter regarding Change in Certifying Accountant
+21.1 -- Subsidiaries of the Company
+23.1 -- Consent of Price Waterhouse LLP
+23.2 -- Consent of Belew Averitt LLP
+23.3 -- Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in its opinion filed as Exhibit
5.1)
+24.1 -- Power of Attorney (included on signature page)
27.1 -- Financial Data Schedule (incorporated by reference to
Exhibit 27 of the Company's Form 10-Q for the period
ended September 30, 1997)
</TABLE>
- ---------------
Unless otherwise indicated, exhibits are incorporated by reference to the
Company's Registration Statement (File No. 333-28595) on Form S-1 declared
effective by the Commission on August 6, 1997.
+ Filed herewith.
* Information contained in such agreement has been omitted subject to a
confidential treatment request granted by the Commission in connection with
the Company's initial public offering of Common Stock in August 1997. Such
information has been marked with asterisks and filed separately with the
Commission.
** Information contained in such agreement has been omitted subject to a
confidential treatment request, marked with asterisks and filed separately
with the Commission.
(b) Financial Statement Schedules.
<TABLE>
<S> <C>
Schedule II -- Valuation and Qualifying
Accounts
</TABLE>
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission have been
omitted because they are not required under the related instructions, are not
applicable or the information has been provided in the Consolidated Financial
Statements or the Notes thereto.
II-5
<PAGE> 129
ITEM 17. UNDERTAKINGS.
The undersigned Company hereby undertakes to provide the representatives of
the Underwriters at the closing specified in the Underwriting Agreement
certificates in such denominations and registered in such names as required by
the Underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Company, 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 any director, officer
or controlling person in connection with the securities being registered, the
Company 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.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, 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 Company 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.
(2) For the purpose of determining any liability under the Securities
Act, 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.
II-6
<PAGE> 130
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on this 26th day of January, 1998.
PEGASUS SYSTEMS, INC.
By: /s/ JOHN F. DAVIS, III
----------------------------------
John F. Davis, III
Chief Executive Officer, President
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John F. Davis, III, Jerome L. Galant and
Ric L. Floyd, and each of them, such individual's true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such individual and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any registration statement
related to the offering contemplated by this registration statement that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully and to intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JOHN F. DAVIS, III Chief Executive Officer,
- ----------------------------------------------------- President and Director
John F. Davis, III (Principal Executive
Officer) January 26, 1998
/s/ JEROME L. GALANT Chief Financial Officer
- ----------------------------------------------------- (Principal Financial and
Jerome L. Galant Accounting Officer) January 26, 1998
/s/ JOHN W. BIGGS Director
- -----------------------------------------------------
John W. Biggs January 26, 1998
/s/ DONALD R. DIXON Director
- -----------------------------------------------------
Donald R. Dixon January 26, 1998
/s/ WILLIAM C. HAMMETT, JR. Director
- -----------------------------------------------------
William C. Hammett, Jr. January 26, 1998
/s/ IAN MALCOLM HIGHET Director
- -----------------------------------------------------
Ian Malcolm Highet January 26, 1998
</TABLE>
II-7
<PAGE> 131
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ ROCKWELL A. SCHNABEL Director
- -----------------------------------------------------
Rockwell A. Schnabel January 26, 1998
/s/ PAUL J. TRAVERS Director
- -----------------------------------------------------
Paul J. Travers January 26, 1998
/s/ MARK C. WELLS Director
- -----------------------------------------------------
Mark C. Wells January 26, 1998
/s/ BRUCE WOLFF Director
- -----------------------------------------------------
Bruce Wolff January 26, 1998
</TABLE>
II-8
<PAGE> 132
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
+1.1 -- Form of Underwriting Agreement by and among the Company,
the Selling Stockholders named therein and the
Underwriters
2.1 -- Contribution and Restructuring Agreement dated effective
as of July 21, 1995 by and among the Company and all of
the stockholders of the Company
3.1 -- Second Amended and Restated Certificate of Incorporation
3.2 -- Second Amended and Restated Bylaws
4.1 -- Specimen of Common Stock Certificate
4.2 -- Second Amended and Restated Certificate of Incorporation
and Second Amended and Restated Bylaws (see Exhibits 3.1
and 3.2)
4.3 -- Rights Agreement dated June 25, 1996 by and among the
Company and certain holders of capital stock of the
Company named therein
4.4 -- Common Stock Purchase Warrant issued to Holiday
Hospitality Corporation
+5.1 -- Opinion of Locke Purnell Rain Harrell (A Professional
Corporation)
10.1 -- Employment Agreement dated June 25, 1996 between the
Company and John F. Davis, III
10.2 -- Employment Agreement dated June 25, 1996 between the
Company and Joseph W. Nicholson
10.3 -- Employment Letter Agreement dated August 29, 1996 between
the Company and Jerome L. Galant
10.4 -- Employment Letter Agreement dated May 18, 1997 between
the Company and Michael R. Donahue
10.5 -- 1996 Stock Option Plan, as amended
10.6 -- 1997 Stock Option Plan
10.7 -- Client Service Agreement, as amended, between the Company
and Citibank, N.A.
10.8 -- Facilities Management Agreement dated January 1, 1996
between the Company and Anasazi, Inc.
10.9 -- Service Agreement dated December 13, 1996 between the
Company and Comdisco, Inc.
10.10 -- Service Agreement dated January 17, 1997 between the
Company and Genuity, Inc.
10.11 -- 1997 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 99.1 of Registration Statement on
Form S-8 (File No. 333-40035) filed with the Commission
on November 12, 1997)
*10.12 -- Distribution Services Agreement dated May 12, 1997
between the Company and Holiday Hospitality Corporation
10.13 -- Office Lease dated October 1, 1995 between the Company
and the Utah State Retirement Investment Fund relating to
property located at 3811 Turtle Creek Blvd., Suite 1100,
Dallas, Texas 75219
10.14 -- TravelWeb Participant Agreement dated January 17, 1996
between the Company and Hyatt Corporation
10.15 -- TravelWeb Participant Agreement dated April 18, 1996
between the Company and La Quinta Inns, Inc.
10.16 -- TravelWeb Participant Agreement dated May 31, 1996
between the Company and HFS Incorporated
10.17 -- TravelWeb Participation Agreement dated April 18, 1996
between the Company and ITT Sheraton Corporation
10.18 -- TravelWeb Participant Agreement dated July 15, 1995
between the Company and Inter-Continental Hotels
Corporation
10.19 -- TravelWeb Participant Agreement dated April 27, 1995
between the Company and Hilton Hotels Corporation
</TABLE>
<PAGE> 133
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.20 -- TravelWeb Participant Agreement dated May 30, 1995
between the Company and Hilton International Co.
10.21 -- TravelWeb Participant Agreement dated September 3, 1996
between the Company and Choice Hotels International, Inc.
10.22 -- Letter Agreement relating to the TravelWeb service dated
December 20, 1995 between the Company and Marriott
International, Inc.
*10.23 -- HCC Participant Agreement, as amended, between the
Company and Inter-Continental Hotel Corp.
*10.24 -- HCC Participant Agreement, as amended, between the
Company and Westin Hotels Company
*10.25 -- HCC Participant Agreement, as amended between the Company
and Best Western International, Ltd.
*10.26 -- HCC Participant Agreement between the Company and
Marriott International, Inc.
*10.27 -- HCC Participation Agreement, as amended, between the
Company and Choice Hotels International, Inc.
*10.28 -- HCC Participant Agreement, as amended, between the
Company and Hyatt Hotels Corporation
*10.29 -- HCC Participant Agreement between Company and ITT
Sheraton Corporation
*10.30 -- HCC Participant Agreement between the Company and La
Quinta Inns, Inc.
*10.31 -- HCC Participant Agreement between the Company and HFS
Incorporated
*10.32 -- HCC Participant Agreement, as amended, between the
Company and Utell International, Inc.
*10.33 -- HCC Participant Agreement between the Company and Anasazi
Service Corporation
*10.34 -- HCC Participant Agreement, as amended, between the
Company and Forte Hotels, Inc.
*10.35 -- HCC Participant Agreement, as amended, between the
Company and Promus Hotels, Inc.
+**10.36 -- HCC Participant Agreement between the Company and Choice
Hotels Franchising, Inc.
+**10.37 -- HCC Participant Agreement between the Company and Hilton
Hotels Corporation
+**10.38 -- First Amendment and Addendum to HCC Participant Agreement
between the Company and Promus Hotels, Inc.
*10.39 -- UltraSwitch User Agreement dated November 17, 1995
between the Company and Westin Hotels & Resorts
*10.40 -- UltraSwitch User Agreement dated February 13, 1996
between the Company and Inter-Continental Hotels
Corporation
*10.41 -- UltraSwitch User Agreement dated April 25, 1996 between
the Company and Hilton Hotels Corporation
*10.42 -- UltraSwitch User Agreement dated August 16, 1995 between
the Company and Choice Hotels International, Inc.
*10.43 -- UltraSwitch User Agreement dated December 31, 1995
between the Company and Marriott International, Inc.
*10.44 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and Best Western International
*10.45 -- UltraSwitch User Agreement dated January 4, 1996 between
the Company and HFS Incorporated
*10.46 -- UltraSwitch User Agreement dated February 1, 1996 between
the Company and Hyatt Hotels Corporation
*10.47 -- UltraSwitch User Agreement dated December 15, 1995
between the Company and Promus Hotels, Inc.
</TABLE>
<PAGE> 134
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
*10.48 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and La Quinta Inns, Inc.
*10.49 -- UltraSwitch User Agreement dated January 8, 1997 between
the Company and ITT Sheraton Corporation
*10.50 -- UltraSwitch User Agreement dated February 10, 1996
between the Company and Utell International Ltd.
*10.51 -- UltraSwitch User Agreement dated February 23, 1996
between the Company and Forte Hotels, Inc.
+**10.52 -- First Amendment to UltraSwitch User Agreement dated
January 13, 1998 between the Company and Hilton Hotels
Corporation
*10.53 -- Property Information Distribution Agreement dated May 2,
1997 between the Company and Best Western International,
Inc.
+**10.54 -- Property Information Distribution Agreement dated
September 10, 1997 between the Company and
Inter-Continental Hotel Corporation
*10.55 -- Property Information Distribution Agreement dated March
7, 1997 between the Company and Anasazi, Inc.
*10.56 -- Property Information Distribution Agreement dated March
4, 1997 between the Company and La Quinta Inns, Inc.
*10.57 -- Property Information Distribution Agreement, as amended,
dated April 2, 1997, between the Company and HFS
Incorporated
*10.58 -- Property Information Distribution Agreement dated June 2,
1997 between the Company and Promus Hotels, Inc.
*10.59 -- Property Information Distribution Agreement dated March
11, 1997 between the Company and Hyatt Hotels Corporation
*10.60 -- United States Subscriber Agreement dated October 12, 1993
between the Company and American Express Travel Related
Services Company, Inc.
*10.61 -- Netbooker Agreement dated June 10, 1997 between the
Company and ITT Sheraton Corporation
+11.1 -- Computation of Per Share Loss
16.1 -- Letter regarding Change in Certifying Accountant
+21.1 -- Subsidiaries of the Company
+23.1 -- Consent of Price Waterhouse LLP
+23.2 -- Consent of Belew Averitt LLP
+23.3 -- Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in its opinion filed as Exhibit
5.1)
+24.1 -- Power of Attorney (included on signature page)
27.1 -- Financial Data Schedule (incorporated by reference to
Exhibit 27 of the Company's Form 10-Q for the period
ended September 30, 1997)
</TABLE>
- ---------------
Unless otherwise indicated, exhibits are incorporated by reference to the
Company's Registration Statement (File No. 333-28595) on Form S-1 declared
effective by the Commission on August 6, 1997.
+ Filed herewith.
* Information contained in such agreement has been omitted subject to a
confidential treatment request granted by the Commission in connection with
the Company's initial public offering of Common Stock in August 1997. Such
information has been marked with asterisks and filed separately with the
Commission.
** Information contained in such agreement has been omitted subject to a
confidential treatment request, marked with asterisks and filed separately
with the Commission.
<PAGE> 1
EXHIBIT 1.1
DRAFT OF 1/12/98
PEGASUS SYSTEMS, INC.
____________________ SHARES(1)
COMMON STOCK
UNDERWRITING AGREEMENT
________, 1998
HAMBRECHT & QUIST LLC
NATIONSBANC MONTGOMERY SECURITIES LLC
VOLPE BROWN WHELAN & COMPANY, LLC
c/o Hambrecht & Quist LLC
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
Pegasus Systems, Inc., a Delaware corporation (herein called the
Company), proposes to issue and sell ____________________ shares of its
authorized but unissued Common Stock, $.01 par value (herein called the Common
Stock), and the stockholders of the Company named in Schedule II hereto (herein
collectively called the Selling Securityholders) propose to sell an aggregate
of ____________________ shares of Common Stock of the Company (said
____________________ shares of Common Stock being herein called the
Underwritten Stock). The Company and the Selling Securityholders propose to
grant to the Underwriters (as hereinafter defined) an option to purchase up to
____________________ additional shares of Common Stock (herein called the
Option Stock and with the Underwritten Stock herein collectively called the
Stock). The Common Stock is more fully described in the Registration Statement
and the Prospectus hereinafter mentioned.
The Company and the Selling Securityholders severally hereby confirm
the agreements made with respect to the purchase of the Stock by the several
underwriters, for whom you are acting, named in Schedule I hereto (herein
collectively called the Underwriters, which term shall also include any
underwriter purchasing Stock pursuant to Section 3(b) hereof). You represent
and warrant that you have been authorized by each of the other Underwriters to
enter into this Agreement on its behalf and to act for it in the manner herein
provided.
- -----------------------------------
(1) Plus an option to purchase from the Company and the Selling Securityholders
up to ____________________ additional shares to cover over-allotments.
1.
<PAGE> 2
1. REGISTRATION STATEMENT. The Company has filed with the
Securities and Exchange Commission (herein called the Commission) a
registration statement on Form S-1 (No. ____________________), including the
related preliminary prospectus, for the registration under the Securities Act
of 1933, as amended (herein called the Securities Act) of the Stock. Copies of
such registration statement and of each amendment thereto, if any, including
the related preliminary prospectus (meeting the requirements of Rule 430A of
the rules and regulations of the Commission) heretofore filed by the Company
with the Commission have been delivered to you.
The term Registration Statement as used in this agreement shall mean
such registration statement, including all exhibits and financial statements,
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, in the form in which it became effective, and
any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission with respect to the Stock (herein called a Rule
462(b) registration statement), and, in the event of any amendment thereto
after the effective date of such registration statement (herein called the
Effective Date), shall also mean (from and after the effectiveness of such
amendment) such registration statement as so amended (including any Rule 462(b)
registration statement). The term Prospectus as used in this Agreement shall
mean the prospectus relating to the Stock first filed with the Commission
pursuant to Rule 424(b) and Rule 430A (or if no such filing is required, as
included in the Registration Statement) and, in the event of any supplement or
amendment to such prospectus after the Effective Date, shall also mean (from
and after the filing with the Commission of such supplement or the
effectiveness of such amendment) such prospectus as so supplemented or amended.
The term Preliminary Prospectus as used in this Agreement shall mean each
preliminary prospectus included in such registration statement prior to the
time it becomes effective.
The Registration Statement has been declared effective under the
Securities Act, and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The Company has caused to be
delivered to you copies of each Preliminary Prospectus and has consented to the
use of such copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SECURITYHOLDERS.
(a) The Company hereby represents and warrants as follows:
(i) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
full corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement and
the Prospectus and as being conducted, and is duly qualified as a
foreign corporation and in good standing in all jurisdictions in which
the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary (except where
the failure to be so qualified would not have a material adverse
effect on the business,
2.
<PAGE> 3
properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole).
(ii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any materially adverse change in the business, properties,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, other than as set
forth in the Registration Statement and the Prospectus, and since such
dates, except in the ordinary course of business, neither the Company
nor any of its subsidiaries has entered into any material transaction
not referred to in the Registration Statement and the Prospectus which
is required to be so referred to.
(iii) The Registration Statement and the Prospectus comply,
and on the Closing Date (as hereinafter defined) and any later date on
which Option Stock is to be purchased, the Prospectus will comply, in
all material respects, with the provisions of the Securities Act and
the rules and regulations of the Commission thereunder; on the
Effective Date, the Registration Statement did not contain any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date the
Prospectus did not and, on the Closing Date and any later date on
which Option Stock is to be purchased, will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that none of the representations and warranties in this
subparagraph (iii) shall apply to statements in, or omissions from,
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information herein or otherwise furnished in
writing to the Company by or on behalf of the Underwriters for use in
the Registration Statement or the Prospectus.
(iv) The Stock is duly and validly authorized, is (or, in
the case of shares of the Stock to be sold by the Company, will be,
when issued and sold to the Underwriters against payment therefor as
provided herein) duly and validly issued, fully paid and nonassessable
and conforms to the description thereof in the Prospectus. No further
approval or authority of the stockholders or the Board of Directors of
the Company will be required for the transfer and sale of the Stock to
be sold by the Selling Securityholders or the issuance and sale of the
Stock as contemplated herein.
(v) The Stock to be sold by the Selling Securityholders
is listed and duly admitted to trading on The Nasdaq National Market,
and prior to the Closing, the Common Stock will be authorized for
listing on the Nasdaq National Market.
3.
<PAGE> 4
(b) Each of the Selling Securityholders hereby severally and not
jointly represents and warrants as follows:
(i) Such Selling Securityholder has good and valid title
to all the shares of Stock to be sold by such Selling Securityholder
hereunder, free and clear of all liens, encumbrances, equities,
security interests and claims whatsoever, with full right and
authority to deliver the same hereunder, subject, in the case of each
Selling Securityholder, to the rights of the Company, as Custodian
(herein called the Custodian), and that upon the delivery of and
payment for such shares of the Stock hereunder and under the Custody
Agreement and the Power of Attorney (as such terms are defined below),
the several Underwriters will receive good and valid title thereto,
free and clear of all liens, encumbrances, equities, security
interests and claims whatsoever.
(ii) Certificates in negotiable form for the shares of the
Stock to be sold by such Selling Securityholder have been placed in
custody under a Custody Agreement for delivery under this Agreement
with the Custodian; such Selling Securityholder specifically agrees
that the shares of the Stock represented by the certificates so held
in custody for such Selling Securityholder are subject to the
interests of the several Underwriters and the Company, that the
arrangements made by such Selling Securityholder for such custody,
including the Power of Attorney provided for in such Custody
Agreement, are to that extent irrevocable, and that the obligations of
such Selling Securityholder shall not be terminated by any act of such
Selling Securityholder or by operation of law, whether by the death or
incapacity of such Selling Securityholder (or, in the case of a
Selling Securityholder that is not an individual, the dissolution or
liquidation of such Selling Securityholder) or the occurrence of any
other event; if any such death, incapacity, dissolution, liquidation
or other such event should occur before the delivery of such shares of
the Stock hereunder, certificates for such shares of the Stock shall
be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death, incapacity,
dissolution, liquidation or other event had not occurred, regardless
of whether the Custodian shall have received notice of such death,
incapacity, dissolution, liquidation or other event.
(iii) Such Selling Securityholder has reviewed the
Registration Statement and Prospectus and, although such Selling
Securityholder has not independently verified the accuracy or
completeness of all the information contained therein, nothing has
come to the attention of such Selling Securityholder that would lead
such Selling Securityholder to believe that on the Effective Date, the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; or that would lead such Selling Securityholder to believe
that on the Effective Date the Prospectus contained and, on the
Closing Date and any later date on which Option Stock is to be
purchased, contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
4.
<PAGE> 5
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell ____________________ shares of the Underwritten Stock to the several
Underwriters, each Selling Securityholder severally agrees to sell to the
several Underwriters the number of shares of the Underwritten Stock set forth
in Schedule II opposite the name of such Selling Securityholder, and each of
the Underwriters agrees to purchase from the Company and the Selling
Securityholders the respective aggregate number of shares of Underwritten Stock
set forth opposite its name in Schedule I. The price at which such shares of
Underwritten Stock shall be sold by the Company and the Selling Securityholders
and purchased by the several Underwriters shall be $____________________ per
share. The obligation of each Underwriter to the Company and each of the
Selling Securityholders shall be to purchase from the Company and the Selling
Securityholders that number of shares of the Underwritten Stock which
represents the same proportion of the total number of shares of the
Underwritten Stock to be sold by each of the Company and the Selling
Securityholders pursuant to this Agreement as the number of shares of the
Underwritten Stock set forth opposite the name of such Underwriter in Schedule
I hereto represents of the total number of shares of the Underwritten Stock to
be purchased by all Underwriters pursuant to this Agreement, as adjusted by you
in such manner as you deem advisable to avoid fractional shares. In making
this Agreement, each Underwriter is contracting severally and not jointly;
except as provided in paragraphs (b) and (c) of this Section 3, the agreement
of each Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail
or refuse (otherwise than for a reason sufficient to justify the termination of
this Agreement under the provisions of Section 8 or 9 hereof) to purchase and
pay for the number of shares of the Stock agreed to be purchased by such
Underwriter or Underwriters, the Company or the Selling Securityholders shall
immediately give notice thereof to you, and the non-defaulting Underwriters
shall have the right within 24 hours after the receipt by you of such notice to
purchase, or procure one or more other Underwriters to purchase, in such
proportions as may be agreed upon between you and such purchasing Underwriter
or Underwriters and upon the terms herein set forth, all or any part of the
shares of the Stock which such defaulting Underwriter or Underwriters agreed to
purchase. If the non-defaulting Underwriters fail so to make such arrangements
with respect to all such shares and portion, the number of shares of the Stock
which each non-defaulting Underwriter is otherwise obligated to purchase under
this Agreement shall be automatically increased on a pro rata basis to absorb
the remaining shares and portion which the defaulting Underwriter or
Underwriters agreed to purchase; provided, however, that the non-defaulting
Underwriters shall not be obligated to purchase the shares and portion which
the defaulting Underwriter or Underwriters agreed to purchase if the aggregate
number of such shares of the Stock exceeds 10% of the total number of shares of
the Stock which all Underwriters agreed to purchase hereunder. If the total
number of shares of the Stock which the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased or absorbed in accordance with the
two preceding sentences, the Company and the Selling Securityholders shall have
the right, within 24 hours next succeeding the 24-hour period above referred
to, to make arrangements
5.
<PAGE> 6
with other underwriters or purchasers satisfactory to you for purchase of such
shares and portion on the terms herein set forth. In any such case, either you
or the Company and the Selling Securityholders shall have the right to postpone
the Closing Date determined as provided in Section 5 hereof for not more than
seven business days after the date originally fixed as the Closing Date
pursuant to said Section 5 in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or arrangements
may be made. If neither the non-defaulting Underwriters nor the Company and
the Selling Securityholders shall make arrangements within the 24-hour periods
stated above for the purchase of all the shares of the Stock which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall be terminated without further act or deed and without any
liability on the part of the Company or the Selling Securityholders to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company or the Selling Securityholders.
Nothing in this paragraph (b), and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth, the
Company and the Selling Securityholders grant an option to the several
Underwriters to purchase, severally and not jointly, up to ____________________
shares in the aggregate of the Option Stock from the Company and the Option
Selling Securityholder at the same price per share as the Underwriters shall
pay for the Underwritten Stock. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Stock by the Underwriters and
may be exercised in whole or in part at any time (but not more than once) on or
before the thirtieth day after the date of this Agreement upon written or
telegraphic notice by you to the Company setting forth the aggregate number of
shares of the Option Stock as to which the several Underwriters are exercising
the option and the date on which such shares of the Option Stock are to be
delivered, as determined by you but in no event earlier than the date that the
Underwritten Stock is delivered hereunder. Delivery of certificates for the
shares of Option Stock, and payment therefor, shall be made as provided in
Section 5 hereof. The number of shares of the Option Stock to be purchased by
each Underwriter shall be the same percentage of the total number of shares of
the Option Stock to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Stock, as adjusted by you in such
manner as you deem advisable to avoid fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters
of the Stock to be purchased by them hereunder shall be as set forth in the
Prospectus. The Underwriters may from time to time change the public offering
price after the closing of the initial public offering and increase or decrease
the concessions and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front
cover page, in the last paragraph on the page following the front cover page
and under "Underwriting" in the Registration Statement, any Preliminary
Prospectus and the Prospectus relating to the Stock filed
6.
<PAGE> 7
by the Company (insofar as such information relates to the Underwriters)
constitutes the only information furnished by the Underwriters to the Company
for inclusion in the Registration Statement, any Preliminary Prospectus, and
the Prospectus, and you on behalf of the respective Underwriters represent and
warrant to the Company and the Selling Securityholders that the statements made
therein are correct.
5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten
Stock and the Option Stock (if the option granted by Section 3(c) hereof shall
have been exercised not later than 7:00 a.m., San Francisco time, on the date
two business days preceding the Closing Date), and payment therefor, shall be
made at the offices of Locke Purnell Rain Harrell, 2200 Ross Avenue, Suite
2200, Dallas, Texas, at 9:00 a.m., Dallas time, on the [fourth] business day
after the date of this Agreement, or at such time on such other day, not later
than seven full business days after such [fourth] business day, as shall be
agreed upon in writing by the Company, the Selling Securityholders and you.
The date and hour of such delivery and payment (which may be postponed as
provided in Section 3(b) hereof) are herein called the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be
exercised after 7:00 a.m., San Francisco time, on the date two business days
preceding the Closing Date, delivery of certificates for the shares of Option
Stock, and payment therefor, shall be made at the offices of Locke Purnell Rain
Harrell, 2200 Ross Avenue, Suite 2200, Dallas, Texas, at 9:00 a.m., Dallas
time, on the third business day after the exercise of such option; provided
that any such payment and delivery that under the terms of this subsection 5(b)
should occur on the first or second business day immediately following the
Closing Date shall occur on the third business day following the Closing Date,
unless otherwise agreed by the parties hereto.
(c) Payment for the Stock purchased from the Company shall be made
to the Company or its order, and payment for the Stock purchased from the
Selling Securityholders shall be made to the Custodian, for the account of the
Selling Securityholders, in each case by one or more certified or official bank
check or checks in same day funds. Such payment shall be made upon delivery
of certificates for the Stock to you for the respective accounts of the several
Underwriters against receipt therefor signed by you. Certificates for the
Stock to be delivered to you shall be registered in such name or names and
shall be in such denominations as you may request at least one business day
before the Closing Date, in the case of Underwritten Stock, and at least one
business day prior to the purchase thereof, in the case of the Option Stock.
Certificates for the Underwritten Stock will be made available to the
Underwriters for inspection, checking and packaging at the offices of Lewco
Securities Corporation, 2 Broadway, New York, New York 10004 on the business
day prior to the Closing Date or, in the case of the Option Stock, by 3:00
p.m., New York time, on the business day preceding the date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
and the Selling Securityholders for shares to be purchased by any Underwriter
whose check shall not have been received by you on
7.
<PAGE> 8
the Closing Date or any later date on which Option Stock is purchased for the
account of such Underwriter. Any such payment by you shall not relieve such
Underwriter from any of its obligations hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY AND THE SELLING
SECURITYHOLDERS. The Company and, only to the extent expressly applicable to
the Selling Securityholders, each Selling Securityholder severally covenants
and agrees as follows:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) a Prospectus containing information
previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A and (ii) not file any amendment to
the Registration Statement or supplement to the Prospectus of which
you shall not previously have been advised and furnished with a copy
or to which you shall have promptly and reasonably objected in writing
or which is not in compliance with the Securities Act or the rules and
regulations of the Commission.
(b) The Company will promptly notify each Underwriter in
the event of (i) the request by the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement,
(iii) the institution or notice of intended institution of any action
or proceeding for that purpose, (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Stock for sale in any jurisdiction, or (v) the receipt by it of
notice of the initiation or threatening of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the
issuance of such a stop order and, if such an order shall at any time
be issued, to obtain the withdrawal thereof at the earliest possible
moment.
(c) The Company will (i) on or before the Closing Date,
deliver to you a signed copy of the Registration Statement as
originally filed and of each amendment thereto filed prior to the time
the Registration Statement becomes effective and, promptly upon the
filing thereof, a signed copy of each post- effective amendment, if
any, to the Registration Statement (together with, in each case, all
exhibits thereto unless previously furnished to you) and will also
deliver to you, for distribution to the Underwriters, a sufficient
number of additional conformed copies of each of the foregoing (but
without exhibits) so that one copy of each may be distributed to each
Underwriter, (ii) as promptly as practicable deliver to you and send
to the several Underwriters, at such office or offices as you may
designate, as many copies of the Prospectus as you may reasonably
request, and (iii) thereafter from time to time during the period in
which a prospectus is required by law to be delivered by an
Underwriter or dealer, likewise send to the Underwriters as many
additional copies of the Prospectus and as many copies of any
supplement to the Prospectus and of any amended prospectus, filed by
the Company with the Commission, as you may reasonably request for the
purposes contemplated by the Securities Act.
8.
<PAGE> 9
(d) If at any time during the period in which a
prospectus is required by law to be delivered by an Underwriter or
dealer any event relating to or affecting the Company, or of which the
Company shall be advised in writing by you, shall occur as a result of
which it is necessary, in the reasonable opinion of counsel for the
Company or of counsel for the Underwriters, to supplement or amend the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser of the Stock, the Company will forthwith prepare and file
with the Commission a supplement to the Prospectus or an amended
prospectus so that the Prospectus as so supplemented or amended will
not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time such Prospectus
is delivered to such purchaser, not misleading. If, at any time
during the period in which a prospectus is required by law to be
delivered by an Underwriter or a dealer, the Underwriters shall
propose to vary the terms of offering of the Stock by reason of
changes in general market conditions or otherwise, you will advise the
Company in writing of the proposed variation, and, if in the
reasonable opinion either of counsel for the Company or of counsel for
the Underwriters such proposed variation requires that the Prospectus
be supplemented or amended, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended
prospectus setting forth such variation. The Company authorizes the
Underwriters and all dealers to whom any of the Stock may be sold by
the several Underwriters to use the Prospectus, as from time to time
amended or supplemented, in connection with the sale of the Stock in
accordance with the applicable provisions of the Securities Act and
the applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the
Company will submit to you, for your information, a copy of any
post-effective amendment to the Registration Statement and any
supplement to the Prospectus or any amended prospectus proposed to be
filed.
(f) The Company will cooperate, when and as requested by
you, in the qualification of the Stock for offer and sale under the
securities or blue sky laws of such jurisdictions as you may designate
and, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, in keeping such qualifications
in good standing under said securities or blue sky laws; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company
will, from time to time, prepare and file such statements, reports,
and other documents as are or may be required to continue such
qualifications in effect for so long a period as you may reasonably
request for distribution of the Stock.
(g) During a period of five years commencing with the
date hereof, the Company will furnish to you, and to each Underwriter
who may so request in writing, copies of all periodic and special
reports furnished to stockholders of the Company and of all
information, documents and reports filed with the Commission .
9.
<PAGE> 10
(h) Not later than the 45th day following the end of the
fiscal quarter first occurring after the first anniversary of the
Effective Date, the Company will make generally available to its
security holders an earnings statement in accordance with Section
11(a) of the Securities Act and Rule 158 thereunder.
(i) The Company agrees to pay all costs and expenses
incident to the performance of the obligations of the Company and the
Selling Securityholders under this Agreement, including all costs and
expenses incident to (i) the preparation, printing and filing with the
Commission and the National Association of Securities Dealers, Inc.
("NASD") of the Registration Statement, any Preliminary Prospectus and
the Prospectus, (ii) the furnishing to the Underwriters of copies of
any Preliminary Prospectus and of the several documents required by
paragraph (c) of this Section 6 to be so furnished, (iii) the printing
of this Agreement and related documents delivered to the Underwriters,
(iv) the preparation, printing and filing of all supplements and
amendments to the Prospectus referred to in paragraph (d) of this
Section 6, (v) the furnishing to you and the Underwriters of the
reports and information referred to in paragraph (g) of this Section 6
and (vi) the printing and issuance of stock certificates, including
the transfer agent's fees. The Selling Securityholders will pay any
transfer taxes incident to the transfer to the Underwriters of the
shares the Stock being sold by the Selling Securityholders.
(j) The Company agrees to reimburse you, for the account
of the several Underwriters, for blue sky fees and related
disbursements (including counsel fees and disbursements and cost of
copying memoranda for the Underwriters) paid by or for the account of
the Underwriters or their counsel in qualifying the Stock under state
securities or blue sky laws and in the review of the offering by the
NASD.
(k) The provisions of paragraphs (i) and (j) of this
Section are intended to relieve the Underwriters from the payment of
the expenses and costs which the Company hereby agrees to pay and
shall not affect any agreement which the Company and the Selling
Securityholders may make, or may have made, for the sharing of any
such expenses and costs.
(l) The Company and each of the Selling Securityholders
hereby agrees that, without the prior written consent of Hambrecht &
Quist LLC on behalf of the Underwriters, the Company or such Selling
Securityholder, as the case may be, will not, for a period of 90 days
from the effective date of the Registration Statement, directly or
indirectly, sell, offer, contract to sell, transfer the economic risk
of ownership in, make any short sale, pledge or otherwise dispose of
any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or
acquire Common Stock. The foregoing sentence shall not apply to (A)
the Stock to be sold to the Underwriters pursuant to this Agreement,
(B) shares of Common Stock issued by the Company upon the exercise of
options granted under the stock option plans of the Company (the
"Option Plans") or upon the exercise of warrants outstanding as of the
date hereof, all as described in footnote (2) to the table under the
caption
10.
<PAGE> 11
"Capitalization" in the Preliminary Prospectus, and (C) options to
purchase Common Stock granted under the Option Plans.
(m) The Company agrees to use all reasonable efforts to
cause all directors that are securityholders of the Company, officers,
and beneficial holders of more than 5% of the outstanding Common Stock
to agree that, without the prior written consent of Hambrecht & Quist
LLC on behalf of the Underwriters, such person or entity will not, for
a period of 90 days from the effective date of the Registration
Statement, directly or indirectly, sell, offer, contract to sell,
transfer the economic risk of ownership in, make any short sale,
pledge or otherwise dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any
other rights to purchase or acquire Common Stock; provided, that,
individuals may transfer any shares of Common Stock or securities
convertible into or exchangeable or exercisable for the Company's
Common Stock either during his or her lifetime or on death by will or
intestacy to his or her immediate family or to a trust the
beneficiaries of which are exclusively such individual and/or a member
or members of his or her immediate family; provided, however, that
prior to any such transfer each transferee shall execute an agreement,
satisfactory to Hambrecht & Quist LLC, pursuant to which each
transferee shall agree to receive and hold such shares of Common
Stock, or securities convertible into or exchangeable or exercisable
for the Common Stock, subject to the foregoing restrictions, and there
shall be no further transfer except in accordance with such
restrictions.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Subject to the provisions of paragraph (f) of this Section 7,
the Company and each of the Selling Securityholders severally and not jointly
agree to indemnify and hold harmless each Underwriter and each person
(including each partner or officer thereof) who controls any Underwriter within
the meaning of Section 15 of the Securities Act from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
indemnified parties or any of them may become subject under the Securities Act,
the Securities Exchange Act of 1934, as amended (herein called the Exchange
Act), or the common law or otherwise, and the Company and the Selling
Securityholders severally and not jointly agree to reimburse each such
Underwriter and controlling person for any legal or other expenses (including,
except as otherwise hereinafter provided, reasonable fees and disbursements of
counsel) incurred by the respective indemnified parties in connection with
defending against any such losses, claims, damages or liabilities or in
connection with any investigation or inquiry of, or other proceeding which may
be brought against, the respective indemnified parties, in each case arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including the Prospectus
as part thereof and any Rule 462(b) registration statement) or any
post-effective amendment thereto (including any Rule 462(b) registration
statement), or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall
11.
<PAGE> 12
have filed with the Commission any amendment thereof or supplement thereto) or
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that (1) the indemnity
agreements of the Company and the Selling Securityholders contained in this
paragraph (a) shall not apply to any such losses, claims, damages, liabilities
or expenses if such statement or omission was made in reliance upon and in
conformity with information furnished as herein stated or otherwise furnished
in writing to the Company by or on behalf of any Underwriter for use in any
Preliminary Prospectus or the Registration Statement or the Prospectus or any
such amendment thereof or supplement thereto, (2) the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages,
liabilities or expenses purchased the Stock which is the subject of the
Preliminary Prospectus (or to the benefit of any person controlling such
Underwriter) if at or prior to the written confirmation of the sale of such
Stock a copy of the Prospectus (or the Prospectus as amended or supplemented)
was not sent or delivered to such person (excluding the documents incorporated
therein by reference) and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented) unless the failure is the result of
noncompliance by the Company with clauses (ii) or (iii) of paragraph (c) of
Section 6 hereof, and (3) each Selling Securityholder shall only be liable
under this paragraph with respect to (A) information pertaining to such Selling
Securityholder furnished by or on behalf of such Selling Securityholder
expressly for use in any Preliminary Prospectus or the Registration Statement
or the Prospectus or any such amendment thereof or supplement thereto or (B)
facts that would constitute a breach of any representation or warranty of such
Selling Securityholder set forth in Section 2(b) hereof. The indemnity
agreements of the Company and the Selling Securityholders contained in this
paragraph (a) and the representations and warranties of the Company and the
Selling Securityholders contained in Section 2 hereof shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the delivery of and payment
for the Stock.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its officers who signs the Registration Statement
on his own behalf or pursuant to a power of attorney, each of its directors,
each other Underwriter and each person (including each partner or officer
thereof) who controls the Company or any such other Underwriter within the
meaning of Section 15 of the Securities Act, and the Selling Securityholders
and each person, if any, who controls the Selling Securityholder within the
meaning of Section 15 of the Securities Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
indemnified parties or any of them may become subject under the Securities Act,
the Exchange Act, or the common law or otherwise and to reimburse each of them
for any legal or other expenses (including, except as otherwise hereinafter
provided, reasonable fees and disbursements of counsel) incurred by the
respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (including the Prospectus as part thereof and any Rule
462(b) registration statement) or any post-effective
12.
<PAGE> 13
amendment thereto (including any Rule 462(b) registration statement) or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
thereof or supplement thereto) or the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, if
such statement or omission was made in reliance upon and in conformity with
information furnished as herein stated or otherwise furnished in writing to the
Company by or on behalf of such indemnifying Underwriter for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
such amendment thereof or supplement thereto. The indemnity agreement of each
Underwriter contained in this paragraph (b) shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the delivery of and payment for the Stock.
(c) Each party indemnified under the provision of paragraphs (a)
and (b) of this Section 7 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against, it in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, it will promptly give written notice (herein called the Notice) of
such service or notification to the party or parties from whom indemnification
may be sought hereunder. No indemnification provided for in such paragraphs
shall be available to any party who shall fail so to give the Notice if the
party to whom such Notice was not given was unaware of the action, suit,
investigation, inquiry or proceeding to which the Notice would have related and
was prejudiced by the failure to give the Notice, but the omission so to notify
such indemnifying party or parties of any such service or notification shall
not relieve such indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of the indemnification provided for herein. Any indemnifying party
shall be entitled at its own expense to participate in the defense of any
action, suit or proceeding against, or investigation or inquiry of, an
indemnified party. Any indemnifying party shall be entitled, if it so elects
within a reasonable time after receipt of the Notice by giving written notice
(herein called the Notice of Defense) to the indemnified party, to assume
(alone or in conjunction with any other indemnifying party or parties) the
entire defense of such action, suit, investigation, inquiry or proceeding, in
which event such defense shall be conducted, at the expense of the indemnifying
party or parties, by counsel chosen by such indemnifying party or parties and
reasonably satisfactory to the indemnified party or parties; provided, however,
that (i) if the indemnified party or parties reasonably determine that there
may be a conflict between the positions of the indemnifying party or parties
and of the indemnified party or parties in conducting the defense of such
action, suit, investigation, inquiry or proceeding or that there may be legal
defenses available to such indemnified party or parties different from or in
addition to those available to the indemnifying party or parties, then, upon
prior written notice to the indemnifying party or parties, counsel for the
indemnified party or parties shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the
13.
<PAGE> 14
indemnified party or parties and (ii) in any event, upon prior written notice
to the indemnifying party or parties, the indemnified party or parties shall be
entitled to have counsel chosen by such indemnified party or parties
participate in, but not conduct, the defense. If, within a reasonable time
after receipt of the Notice, an indemnifying party gives a Notice of Defense
and the counsel chosen by the indemnifying party or parties is reasonably
satisfactory to the indemnified party or parties, the indemnifying party or
parties will not be liable under paragraphs (a) through (c) of this Section 7
for any legal or other expenses subsequently incurred by the indemnified party
or parties in connection with the defense of the action, suit, investigation,
inquiry or proceeding, except that (A) the indemnifying party or parties shall
bear the legal and other expenses incurred in connection with the conduct of
the defense as referred to in clause (i) of the proviso to the preceding
sentence and (B) the indemnifying party or parties shall bear such other
expenses as it or they have authorized to be incurred by the indemnified party
or parties. If, within a reasonable time after receipt of the Notice, no Notice
of Defense has been given, the indemnifying party or parties shall be
responsible for any legal or other expenses incurred by the indemnified party
or parties in connection with the defense of the action, suit, investigation,
inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnifying party
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Securityholders on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Stock received by the Company and the
Selling Securityholders and the total underwriting discount received by the
Underwriters, as set forth in the table on the cover page of the Prospectus,
bear to the aggregate public offering price of the Stock. Relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by each indemnifying
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this
paragraph (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities, or actions in respect thereof, referred
to in the first sentence of this paragraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
14.
<PAGE> 15
in connection with investigation, preparing to defend or defending against any
action or claim which is the subject of this paragraph (d). Notwithstanding the
provisions of this paragraph (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount applicable to the
Stock purchased by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in paragraph (c) of this Section 7).
(e) Neither the Company nor the Selling Securityholders will,
without the prior written consent of each Underwriter, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not such Underwriter or any person who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act is a party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of such Underwriter and each such controlling person from all liability arising
out of such claim, action, suit or proceeding.
(f) The liability of each Selling Securityholder under the
indemnity, contribution and reimbursement agreements contained in the
provisions of this Section 7 shall be limited to an amount equal to the net
proceeds of the stock sold by such Selling Securityholder to the Underwriters.
The Company and the Selling Securityholders may agree, as among themselves and
without limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be responsible.
8. TERMINATION. This Agreement may be terminated by you at any
time prior to the Closing Date by giving written notice to the Company and the
Selling Securityholders if after the date of this Agreement trading in the
Common Stock shall have been suspended, or if there shall have occurred (i) the
engagement in hostilities or an escalation of major hostilities by the United
States or the declaration of war or a national emergency by the United States
on or after the date hereof, (ii) any outbreak of hostilities or other national
or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, calamity, crisis or change in
economic or political conditions in the financial markets of the United States
would, in the Underwriters' reasonable judgment, make the offering or delivery
of the Stock impracticable, (iii) suspension of trading in securities generally
or a material adverse decline in value of securities generally on the New York
Stock Exchange, the American Stock Exchange, or The Nasdaq Stock Market, or
limitations on prices (other than limitations on hours or
15.
<PAGE> 16
numbers of days of trading) for securities on either such exchange or system,
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of, or commencement of any proceeding
or investigation by, any court, legislative body, agency or other governmental
authority which in the Underwriters' reasonable opinion materially and
adversely affects or will materially or adversely affect the business or
operations of the Company, (v) declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the Underwriters' reasonable opinion has a material
adverse effect on the securities markets in the United States. If this
Agreement shall be terminated pursuant to this Section 8, there shall be no
liability of the Company or the Selling Securityholders to the Underwriters
(including without limitation any liability for loss of anticipated profit) and
no liability of the Underwriters to the Company or the Selling Securityholders
(including without limitation any liability for loss of anticipated profit);
provided, however, that in the event of any such termination the Company agrees
to indemnify and hold harmless the Underwriters from all costs or expenses
incident to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, including all costs and expenses referred
to in paragraphs (i) and (j) of Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters to purchase and pay for the Stock shall be subject to
the performance by the Company and by the Selling Securityholders of all their
respective obligations to be performed hereunder at or prior to the Closing
Date or any later date on which Option Stock is to be purchased, as the case
may be, and to the following further conditions:
(a) The Registration Statement shall have become
effective; and no stop order suspending the effectiveness thereof
shall have been issued and no proceedings therefor shall be pending or
threatened by the Commission.
(b) The legality and sufficiency of the sale of the Stock
hereunder and the validity and form of the certificates representing
the Stock, all corporate proceedings and other legal matters incident
to the foregoing, and the form of the Registration Statement and of
the Prospectus (except as to the financial statements contained
therein), shall have been approved at or prior to the Closing Date by
Cooley Godward LLP, counsel for the Underwriters.
(c) You shall have received from Locke Purnell Rain
Harrell (A Professional Corporation) and other counsel for the Company
and the Selling Securityholders satisfactory to you, one or more
opinions, addressed to the Underwriters and dated the Closing Date,
covering the matters set forth in Annex A hereto, and if Option Stock
is purchased at any date after the Closing Date, additional opinions
from each such counsel, addressed to the Underwriters and dated such
later date, confirming that the statements expressed as of the Closing
Date in such opinions remain valid as of such later date.
(d) You shall be satisfied that (i) as of the Effective
Date, the statements made in the Registration Statement and the
Prospectus were true and correct and neither the
16.
<PAGE> 17
Registration Statement nor the Prospectus omitted to state any
material fact required to be stated therein or necessary in order to
make the statements therein, respectively, not misleading, (ii) since
the Effective Date, no event has occurred which should have been set
forth in a supplement or amendment to the Prospectus which has not
been set forth in such a supplement or amendment, (iii) since the
respective dates as of which information is given in the Registration
Statement in the form in which it originally became effective and the
Prospectus contained therein, there has not been any material adverse
change or any development involving a prospective material adverse
change in or affecting the business, properties, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, and, since such dates, except in the ordinary
course of business, neither the Company nor any of its subsidiaries
has entered into any material transaction not referred to in the
Registration Statement in the form in which it originally became
effective and the Prospectus contained therein, (iv) neither the
Company nor any of its subsidiaries has any material contingent
obligations which are not disclosed in the Registration Statement and
the Prospectus, (v) there are not any pending or known threatened
legal proceedings to which the Company or any of its subsidiaries is a
party or of which property of the Company or any of its subsidiaries
is the subject which are material and which are not disclosed in the
Registration Statement and the Prospectus, (vi) there are not any
franchises, contracts, leases or other documents which are required to
be filed as exhibits to the Registration Statement which have not been
filed as required, (vii) the representations and warranties of the
Company herein are true and correct in all material respects as of the
Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and (viii) there has not been any
material change in the market for securities in general or in
political, financial or economic conditions from those reasonably
foreseeable as to render it impracticable in your reasonable judgment
to make a public offering of the Stock, or a material adverse change
in market levels for securities in general (or those of companies in
particular) or financial or economic conditions which render it
inadvisable to proceed.
(e) You shall have received on the Closing Date and on
any later date on which Option Stock is purchased a certificate, dated
the Closing Date or such later date, as the case may be, and signed by
the President and the Chief Financial Officer of the Company, stating
that the respective signers of said certificate have carefully
examined the Registration Statement in the form in which it originally
became effective and the Prospectus contained therein and any
supplements or amendments thereto, and that the statements included in
clauses (i) through (vii) of paragraph (d) of this Section 9 are true
and correct.
(f) You shall have received from Price Waterhouse LLP, a
letter or letters, addressed to the Underwriters and dated the Closing
Date and any later date on which Option Stock is purchased, confirming
that they are independent public accountants with respect to the
Company within the meaning of the Securities Act and the applicable
published rules and regulations thereunder and based upon the
procedures described in their letter delivered to you concurrently
with the execution of this Agreement (herein
17.
<PAGE> 18
called the Original Letter), but carried out to a date not more than
three business days prior to the Closing Date or such later date on
which Option Stock is purchased (i) confirming, to the extent true,
that the statements and conclusions set forth in the Original Letter
are accurate as of the Closing Date or such later date, as the case
may be, and (ii) setting forth any revisions and additions to the
statements and conclusions set forth in the Original Letter which are
necessary to reflect any changes in the facts described in the
Original Letter since the date of the Original Letter or to reflect
the availability of more recent financial statements, data or
information. The letters shall not disclose any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company or any of its subsidiaries
which, in your sole reasonable judgment, makes it impractical or
inadvisable to proceed with the public offering of the Stock or the
purchase of the Option Stock as contemplated by the Prospectus.
(g) You shall have received from Price Waterhouse LLP a
letter stating that their review of the Company's system of internal
accounting controls, to the extent they deemed necessary in
establishing the scope of their examination of the Company's financial
statements as at December 31, 1996, did not disclose any weakness in
internal controls that they considered to be material weaknesses.
(h) You shall have been furnished evidence in usual
written or telegraphic form from the appropriate authorities of the
several jurisdictions, or other evidence satisfactory to you, of the
qualification, if required, referred to in paragraph (f) of Section 6
hereof.
(i) Prior to the Closing Date, the Stock to be issued and
sold by the Company shall have been duly authorized for listing by the
Nasdaq National Market.
(j) On or prior to the Closing Date, you shall have
received from all directors that are securityholders of the Company,
officers, and beneficial holders of more than 5% of the outstanding
Common Stock agreements, in form reasonably satisfactory to Hambrecht
& Quist LLC, stating that without the prior written consent of
Hambrecht & Quist LLC on behalf of the Underwriters, such person or
entity will not, for a period of 90 days from the effective date of
the Registration Statement, directly or indirectly, offer, contract to
sell, transfer the economic risk of ownership in, make any short sale,
pledge or otherwise dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any
other rights to purchase or acquire Common Stock, subject to the
applicable exceptions set forth in Section 6(l) and (m) hereof.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Cooley Godward LLP, counsel for the Underwriters,
shall be reasonably satisfied that they comply in form and scope.
18.
<PAGE> 19
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving written notice to
the Company and to the Selling Securityholders. Any such termination shall be
without liability of the Company or the Selling Securityholders to the
Underwriters (including without limitation loss of anticipated profits) and
without liability of the Underwriters to the Company or the Selling
Securityholders (including without limitation loss of anticipated profits);
provided, however, that (i) in the event of such termination, the Company
agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company and the
Selling Securityholders under this Agreement, including all costs and expenses
referred to in paragraphs (i) and (j) of Section 6 hereof, and (ii) if this
Agreement is terminated by you because of any refusal, inability or failure on
the part of the Company or the Selling Securityholders to perform any agreement
herein, to fulfill any of the conditions herein (other than Section
9(d)(viii)), or to comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the transactions contemplated hereby.
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY AND THE SELLING
SECURITYHOLDERS. The obligation of the Company and the Selling Securityholders
to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 10 shall
not be fulfilled, this Agreement may be terminated by the Company and the
Selling Securityholders by giving notice to you. Any such termination shall be
without liability of the Company and the Selling Securityholders to the
Underwriters (including without limitation any liability for loss of
anticipated profits) and without liability of the Underwriters to the Company
or the Selling Securityholders (including without limitation any liability for
loss of anticipated profits); provided, however, that in the event of any such
termination the Company agrees to indemnify and hold harmless the Underwriters
from all costs or expenses incident to the performance of the obligations of
the Company and the Selling Securityholders under this Agreement, including all
costs and expenses referred to in paragraphs (i) and (j) of Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to their other
obligations under Section 7 of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in paragraph (a) of Section 7 of this Agreement, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the obligations under this Section 11 and the possibility that such payments
might later be held to be improper; provided, however, that (i) to the extent
any such payment is ultimately held to be improper, the persons receiving such
payments shall promptly refund them and (ii) such persons shall provide to the
Company, upon request, reasonable assurances of their ability to effect any
refund, when and if due.
19.
<PAGE> 20
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of the Company, the Selling Securityholders and the
several Underwriters and, with respect to the provisions of Section 7 hereof,
the several parties (in addition to the Company, the Selling Securityholders
and the several Underwriters) indemnified under the provisions of said Section
7, and their respective personal representatives, successors and assigns.
Nothing in this Agreement is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable remedy or claim under
or in respect of this Agreement or any provision herein contained. The term
"successors and assigns" as herein used shall not include any purchaser, as
such purchaser, of any of the Stock from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all
communications hereunder shall be in writing or by facsimile (with written
confirmation of receipt) or telegraph and, if to the Underwriters, shall be
mailed, faxed (with written confirmation of receipt), telegraphed or delivered
to Hambrecht & Quist LLC, One Bush Street, San Francisco, California 94104; and
if to the Company, shall be mailed, faxed (with written confirmation of
receipt), telegraphed or delivered to it at its office, 3811 Turtle Creek
Boulevard, Suite 1100, Dallas, Texas 75219, Attention: John F. Davis, III,
Fax: (214) 528-5675; and if to the Selling Securityholders, shall be mailed,
telegraphed or delivered to the Selling Securityholders in care of John F.
Davis, III at Pegasus Systems, Inc., 3811 Turtle Creek Boulevard, Suite 1100,
Dallas, Texas 75219, Fax: (214) 528-5675. All notices given by telegraph shall
be promptly confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or controlling person
thereof, or by or on behalf of the Company or the Selling Securityholders or
their respective directors or officers, and (c) delivery and payment for the
Stock under this Agreement; provided, however, that if this Agreement is
terminated prior to the Closing Date, the provisions of paragraphs (l), (m) and
(n) of Section 6 hereof shall be of no further force or effect.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
Please sign and return to the Company and to the Selling
Securityholders in care of the Company the enclosed duplicates of this letter,
whereupon this letter will become a binding agreement among the Company, the
Selling Securityholders and the several Underwriters in accordance with its
terms.
20.
<PAGE> 21
Very truly yours,
PEGASUS SYSTEMS, INC.
By
------------------------------------
John F. Davis, III
President and Chief Executive
Officer
SELLING SECURITYHOLDERS:
By
------------------------------------
John F. Davis, III
Attorney-In-Fact
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
HAMBRECHT & QUIST LLC
NATIONSBANC MONTGOMERY SECURITIES LLC
VOLPE BROWN WHELAN & COMPANY, LLC
By: HAMBRECHT & QUIST LLC
By
--------------------------------
Gregory J. Ingram
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
21.
<PAGE> 22
SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF
SHARES
TO BE
UNDERWRITERS PURCHASED
- ------------ ---------
<S> <C>
Hambrecht & Quist LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NationsBanc Montgomery Securities LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Volpe Brown Whelan & Company, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
--------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
==============
</TABLE>
<PAGE> 23
SCHEDULE II
SELLING SECURITYHOLDERS
<TABLE>
<CAPTION>
NUMBER OF
NAME AND ADDRESS SHARES
OF SELLING SECURITYHOLDERS TO BE SOLD
-------------------------- ----------
<S> <C>
------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
===================
</TABLE>
<PAGE> 24
ANNEX A
MATTERS TO BE COVERED IN THE OPINIONS OF
COUNSEL FOR THE COMPANY AND THE SELLING SECURITYHOLDERS
(i) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, is
duly qualified as a foreign corporation and in good standing in each
state of the United States of America in which its ownership or
leasing of property requires such qualification (except where the
failure to be so qualified would not have a material adverse effect on
the business, properties, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole), and has full
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement; all
the issued and outstanding capital stock of each of the subsidiaries
of the Company has been duly authorized and validly issued and is
fully paid and nonassessable, and is owned by the Company free and
clear of all liens, encumbrances and security interests, and to such
counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or ownership interests in
such subsidiaries are outstanding;
(ii) the authorized capital stock of the Company
consists of two million (2,000,000) shares of Preferred Stock, none of
which are outstanding, and one hundred million (100,000,000) shares of
Common Stock, $.01 par value, of which _______________________________
_______________ (____________________) shares are outstanding
(including the Underwritten Stock plus the number of shares of Option
Stock issued on the date hereof); proper corporate proceedings have
been taken validly to authorize such authorized capital stock; all of
the outstanding shares of such capital stock (including the
Underwritten Stock and the shares of Option Stock issued, if any) have
been duly and validly issued and are fully paid and nonassessable; any
Option Stock purchased after the Closing Date, when issued and
delivered to and paid for by the Underwriters as provided in the
Underwriting Agreement, will have been duly and validly issued and be
fully paid and nonassessable; and no preemptive rights of, or rights
of refusal in favor of, stockholders exist with respect to the Stock,
or the issue and sale thereof, pursuant to the Certificate of
Incorporation or Bylaws of the Company and, to the knowledge of such
counsel, there are no contractual preemptive rights that have not been
waived, rights of first refusal or rights of co-sale which exist with
respect to the Stock being sold by the Selling Securityholders or the
issue and sale of the Stock;
(iii) the Registration Statement has become effective
under the Securities Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or
suspending or preventing the use of the Prospectus is in effect
<PAGE> 25
and no proceedings for that purpose have been instituted or are
pending or contemplated by the Commission;
(iv) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial data contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and with the rules and
regulations of the Commission thereunder;
(v) such counsel have no reason to believe that
the Registration Statement (except as to the financial statements and
schedules and other financial data contained or incorporated by
reference therein, as to which such counsel need not express any
opinion or belief) at the Effective Date contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (except as to the
financial statements and schedules and other financial data contained
or incorporated by reference therein, as to which such counsel need
not express any opinion or belief) as of its date or at the Closing
Date (or any later date on which Option Stock is purchased), contained
or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(vi) the information required to be set forth in
the Registration Statement in answer to Items 9, 10 (insofar as it
relates to such counsel) and 11(c) of Form S-1 is to such counsel's
knowledge accurately and adequately set forth therein in all material
respects or no response is required with respect to such Items, and
the description of the Company's stock option plans and stock purchase
plan and the options granted and which may be granted thereunder in
the Prospectus accurately and fairly presents the information required
to be shown with respect to said plans and options to the extent
required by the Securities Act and the rules and regulations of the
Commission thereunder;
(vii) such counsel do not know of any franchises,
contracts, leases or documents which in the opinion of such counsel
are of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement, which are not described and filed as required;
(viii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(ix) the Underwriting Agreement has been duly
executed and delivered by or on behalf of each of the Selling
Securityholders. The Custody Agreement between the Selling
Securityholders and Pegasus Systems, Inc., a Delaware corporation, as
Custodian, and the Power of Attorney referred to in such Custody
Agreement have been duly executed and delivered by such Selling
Securityholder. The Custody Agreement
2.
<PAGE> 26
entered into by, and the Power of Attorney given by, such Selling
Securityholder is valid and binding on such Selling Securityholder and
each Selling Securityholder has full legal right and authority to
enter into the Underwriting Agreement and to sell, transfer and
deliver in the manner provided in the Underwriting Agreement the
shares of Stock sold by such Selling Securityholder hereunder;
(x) the issue and sale by the Company of the
shares of Stock sold by the Company as contemplated by the
Underwriting Agreement will not conflict with, or result in a breach
of, the Certificate of Incorporation or Bylaws of the Company or any
of its subsidiaries or, to such counsel's knowledge any agreement or
instrument to which the Company or any of its subsidiaries is a party
or any applicable law or regulation, or so far as is known to such
counsel, any order, writ, injunction or decree, of any jurisdiction,
court or governmental instrumentality;
(xi) all holders of securities of the Company
having rights to the registration of shares of Common Stock, or other
securities, because of the filing of the Registration Statement by the
Company have waived such rights or such rights have expired by reason
of lapse of time following notification of the Company's intent to
file the Registration Statement;
(xii) good and valid title to the shares of Stock
sold by the Selling Securityholders under the Underwriting Agreement,
free and clear of all liens, encumbrances, equities, security
interests and claims, has been transferred to the Underwriters who
have severally purchased such shares of Stock under the Underwriting
Agreement, assuming for the purpose of this opinion that the
Underwriters purchased the same in good faith without notice of any
adverse claims;
(xiii) no consent, approval, authorization or order
of any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Underwriting
Agreement, except such as have been obtained under the Securities Act
and such as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Stock by the
Underwriters or as may be required by the NASD; and
(xiv) the Stock sold by the Selling Securityholders
is listed and duly admitted to trading on the Nasdaq National Market
and the Stock issued and sold by the Company is listed on the Nasdaq
National Market.
3.
<PAGE> 1
EXHIBIT 5.1
(214) 740-8523
January 26, 1998
Pegasus Systems, Inc.
3811 Turtle Creek Blvd.
Suite 1100
Dallas, TX 75219
Re: Registration Statement on Form S-1 filed on or about the date hereof
Dear Sirs:
We have acted as counsel for Pegasus Systems, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of 2,415,000
shares of the Company's Common Stock, $.01 par value per share (the
"Securities"). We have examined such documents and questions of law as we have
deemed necessary to render the opinion expressed below.
Based upon the foregoing, we are of the opinion that the Securities,
when issued and sold as described in the above-referenced Registration
Statement, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the prospectus under
the caption "Legal Matters." In giving this consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Sincerely,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ GUY KERR
-----------------------------
Guy Kerr
<PAGE> 1
EXHIBIT 10.36
HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE
HOTEL CLEARING CORPORATION, a Delaware corporation ("HCC"), and CHOICE HOTELS
FRANCHISING, INC. ("Participant"), to be effective the 1st day of December,
1997.
SECTION 1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) Commissionable Reservations. Commissionable
Reservations within a particular time period equals
the number of reservations (both voice and
electronic) processed through the HCC System within
such time period that are identified as
"commissionable" or "partially commissionable" on the
transaction records provided by Participant to HCC
and for which a travel agent commission is paid
pursuant to this Agreement.
(ii) HCC System. The HCC System is HCC's automated
clearinghouse system to provide for the coordination
of reservation information, transfer of hotel
reservation commissions and ancillary services to
Travel Agents and Participating Entities.
(iii) Participating Entity. A Participating Entity is an
operator of a hotel reservation system that has
executed a HCC Participant Agreement.
(iv) HCC Travel Agents. An HCC Travel Agent is a travel
agency who has executed an HCC Subscriber Agreement.
A list of current HCC Travel Agents will be
periodically provided by HCC to Participant.
(v) HCC Travel Agent Commissions. HCC Travel Agent
Commissions are the commissions paid by Participant
to HCC Travel Agents pursuant to this Agreement. HCC
Travel Agent Commissions will be based on commission
rates provided by Participant to HCC.
SECTION 2. THE HCC SYSTEM
2.1 Duties of HCC. HCC will provide and operate the HCC System
for the use and benefit of Participant, its franchisees and
affiliates, and other Participating Entities. HCC will
provide all reasonable and necessary technical support,
* Confidential Treatment Requested by Pegasus Systems, Inc.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
-1-
<PAGE> 2
hardware and software, except as otherwise provided herein,
and modifications to the HCC System to provide clearinghouse
services to Participant and its franchisees and affiliates as
described below. Upon compliance with the terms of this
Agreement by Participant, its franchisees and affiliates, and
subject to Section 5 hereof, HCC will provide the following
clearinghouse services to Participant and its franchisees and
affiliates:
(i) identify Participant to travel agents as being a HCC
System Participating Entity;
(ii) provide billing statements for * costs and expenses
to Participant no laterthan the fifteenth (15th)
business day after the end of each month as provided
in Section 3 below;
(iii) distribute collected HCC Travel Agent Commissions
received from Participant and its affiliates and
franchisees to the appropriate HCC Travel Agents as
set forth in the HCC Travel Agent Commission
information provided by Participant;
(iv) provide no later than the fifteenth (15th) business
day of each month reports to Participant and HCC
Travel Agents reflecting HCC Travel Agents'
reservation transactions with Participant and HCC
Travel Agent Commissions owed based upon the data
provided to HCC by Participant and its affiliates and
franchisees who are participating in the HCC System;
and
(v) provide telephone customer support services from 8:00
a.m. to 5:00 p.m., U.S. Central time, Monday through
Friday, exclusive of legal holidays.
The procedures of the HCC System are subject to changes for enhancements from
time to time as determined by HCC, provided that no such changes will have a
significant adverse impact on the clearinghouse services described above.
2.2 Duties of Participant. Participant shall diligently and in
good faith do the following:
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
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<PAGE> 3
(i) Cooperate reasonably with HCC personnel with respect
to the implementation of the HCC System between HCC
Travel Agents and Participant and its affiliates and
franchisees;
(ii) Provide HCC with all that is reasonably required by
HCC to process all reservations (including all
reservations made electronically or by voice, through
the use of a central reservation "800" phone number,
inclusive of no-shows, cancellations and
non-commissionable transactions) made by HCC Travel
Agents with Participant and, subject to 2.2(iv), its
affiliates and franchisees no less often than on a
semi-monthly basis such data being complete and
accurate to the best of Participant's knowledge and
ability and inclusive of all of the information to
permit HCC to provide the clearinghouse services
described in Section 2.1 hereof and, without
limitation, being such information as set forth on
Exhibit A hereof; and permit and authorize HCC to
obtain and use such data concerning such reservations
made with Participant and, subject to 2.2(iv), its
affiliates and franchisees except such data
designated as confidential pursuant to Section 7
hereof. The foregoing shall be subject to receipt by
Participant from HCC of the instructions,
specifications, directions, information, assistance,
and cooperation reasonably required by Participant to
provide the foregoing.
(iii) Pay, pursuant to this Agreement, all Travel Agent
Commissions reported to HCC for processing pursuant
to this Agreement within two (2) business days of
receipt of the billing statement described in Section
3.4 hereof;
(iv) Use its reasonable efforts to cause each of its
franchisees and affiliates to fully and timely
participate in the HCC System pursuant to this
Agreement;
(v) Permit HCC to use its name as an entity participating
in the HCC System.
2.3 Modification or Enhancement of the HCC System or Participant
System. HCC may in its sole discretion modify the operation
or enhance the capability of the HCC System, and Participant
agrees to cooperate reasonably with HCC to the extent
reasonably necessary to effectuate modifications and
enhancements of the HCC System. If Participant determines
that such modification or enhancement is likely to require
Participant to make significant modifications to its central
reservation system (any such modifications to be at
Participant's sole expense), HCC will provide at least ninety
(90) days' prior notice to Participant of such modification or
enhancement and Participant may, at its option, terminate this
Agreement upon sixty (60) days notice to HCC.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-3-
<PAGE> 4
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Fees for Processing HCC Travel Agent Commissions.
(a) For the first 50,000 Commissionable Reservations
processed each month, Participant shall pay HCC a
transaction fee ("HCC Transaction Fee") each month of
U.S. * processed. For any month wherein the total
of Commissionable Reservations is * shall be due *
for each such Commissionable Reservation over 50,000
but less than 75,000.
(b) For each Commissionable Reservation * processed
each month, * each month (the * as follows:
For any month wherein the total of Commissionable
Reservations processed are * for each
Commissionable Reservation between *
For any month wherein the total of Commissionable
Reservations processed are * for each
Commissionable Reservation between *
For any month wherein the total of Commissionable
Reservations processed are * for each
Commissionable Reservation between *
For any month wherein the total of Commissionable
Reservations processed are * for each
Commissionable Reservation * ;and
Provided however, notwithstanding the preceding
provisions of this 3.2(b), the total * paid per
month shall * There are *
3.2 Commission Payments. HCC shall pay HCC Travel Agent
Commissions in the travel agent's local currency or the
currency requested by the travel agency. All travel agent
commission payments which have not been negotiated by a travel
agent ("Returned Commission Payments") shall be returned (less
the HCC or Participant Transaction Fee) to Participant by July
31 of each year for those Returned Commission Payments which
were transmitted in the latter half of the immediately
preceding year and by December 31 of each year for those
Returned Commission Payments which were transmitted during the
first six (6) months of that year. Upon payment to
Participant of the Returned Commission Payments, Participant
shall be solely and exclusively responsible for complying with
all laws and regulations relating to the treatment of such
returned funds.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-4-
<PAGE> 5
3.3 Disputed Commissions. HCC will provide Participant and HCC
Travel Agents with periodic reports indicated under Section
2.1(iv) that will indicate any exceptions to HCC Travel Agent
Commissions, based on discrepancies between information given
HCC by Participant compared to other information available to
HCC. With respect to all exceptions as to which Participant
provides supporting documentation, HCC will forward such
documentation to the appropriate HCC Travel Agent(s), and the
HCC Travel Agents involved may pursue such dispute directly
with Participant('s) franchisees, but HCC will not have any
liability to either Participant or any travel agent (HCC or
non-HCC) with respect to the resolution of any disputed
commission. No dispute concerning any travel agent
commissions will in any way affect or reduce the obligations
of Participant to (i) timely pay all other HCC Travel Agent
Commissions reported to HCC for processing and (ii) timely pay
to HCC all Transaction Fees and other fees, costs and
additional expenses owed by Participant under this Agreement;
nor shall any such dispute in any way affect or reduce the
obligations of HCC to timely pay Participant all Participant
Transaction Fees due under this Agreement.
3.4 Billing Statements. Based upon the information provided HCC
by or with respect to Participant pursuant to Section 2.2,
above, HCC will provide Participant a monthly billing
statement detailing (i) HCC Travel Agent Commissions to be
paid by Participant for the period covered by such billing
statement; (ii) HCC Transaction Fees to be paid by
Participant, based on Commissionable Reservations for the
period covered by such billing statement; (iii) * and (iv)
all other costs and fees owed by Participant pursuant to this
Agreement. All fees and costs shall be paid in U.S. dollars.
SECTION 4. TERM
4.1 Term of Agreement. The initial term of this Agreement shall
begin on the effective date set forth at the beginning of this
Agreement and, unless earlier terminated pursuant to the
provisions of this Agreement, shall expire on the last day of
the sixtieth (60th) month after the date of this Agreement.
However, this Agreement will be automatically renewed and
extended for additional twelve (12) month periods unless, at
least sixty (60) days prior to the expiration of the initial
term of this Agreement or any additional twelve (12) month
period, either party provides written notice to the other of
its decision not to renew and extend.
SECTION 5. TERMINATION
5.1 Termination Upon Default. Upon the occurrence of an Event of
Default (as defined below) by either party and the failure of
such party to cure such default
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-5-
<PAGE> 6
after notice and opportunity to cure as provided by Section 6.3
below, the nondefaulting party may terminate this Agreement at
any time.
5.2 Suspension of Status. Upon the occurrence of an Event of
Default by Participant and the failure of Participant to cure
such default after notice and opportunity to cure as provided
by Section 6.3 below, then, if HCC does not terminate this
Agreement under Section 5.1, until such time as such Event of
Default is cured HCC shall have the right to suspend the
status of Participant as a Participating Entity and to notify
all HCC Travel Agents of such default and suspension through
central reservation systems or otherwise.
SECTION 6. DEFAULT
6.1 Events of Default. Subject to Section 6.2 below, any one of
the following will be considered an Event of Default:
(i) The failure of either party to pay any amount due
hereunder within the time required;
(ii) The failure of Participant or HCC to satisfy the
obligations set forth in this Agreement;
(iii) The refusal or failure of either party to perform
diligently and in good faith each and every material
provision of this Agreement;
(iv) The commencement by either party of a voluntary case
under Chapter 11 or 7 of the United States Bankruptcy
Code, as from time to time in effect, the
commencement against either party of an involuntary
case under said Chapter 11 or 7, either party seeking
relief as a debtor under any applicable law, other
than said Chapter 11 or 7, of any jurisdiction
relating to the liquidation or reorganization of
debtors or the modification of the rights of
creditors, the entry of a court order adjudging the
party bankrupt or insolvent, ordering its liquidation
or reorganization or assuming custody or appointing a
receiver or other custodian of its property, or its
making an assignment for the benefit of, or entering
into a composition with, its creditors.
Any such Event of Default shall not relieve the defaulting party from any
of its obligations hereunder, and the non-defaulting party shall, except as
provided in this Agreement, be entitled to whatever remedies at law or in
equity are available to it.
6.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 6.1 is caused by or results from
acts of God, fire, war, civil unrest, accident, power
fluctuations or outages, telecommunication fluctuations,
outages or delays, utility failures, mechanical defects, or
other events beyond the control of the defaulting party.
However, if any such occurrence results in any of the events
described in Section 6.1, and the same continues for more than
thirty (30)
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-6-
<PAGE> 7
consecutive days, either party may terminate this Agreement
by providing notice as required herein.
6.3 Cure Period. Upon the occurrence of an Event of Default, the
non-defaulting party will give written notice to the
defaulting party specifying the alleged default. In the case
of a monetary default by either party, the defaulting party
will only be allowed to cure such default within two (2)
business days after receipt of such notice, by delivering that
amount owed to HCC in good funds into the non-defaulting
party's bank account. In all other instances, the defaulting
party will be entitled to fifteen (15) days from receipt of
notice within which to cure the default.
SECTION 7. CONFIDENTIALITY
7.1 Proprietary Information. During the term of this Agreement,
it is acknowledged by Participant and HCC that each may
receive confidential and proprietary information that is the
property of the other party. All such confidential and
proprietary information will be marked or otherwise identified
as such and will be treated as confidential and proprietary
subject only to disclosure where required by law. Such
designation may be removed by each party making the
designation. Participant acknowledges that it will have no
access to and will not use the HCC System or related property,
other than as specifically provided for in this Agreement, and
that such system and related property is confidential and
proprietary property of HCC. Any use of HCC service marks or
trade names by Participant is subject to prior written
approval of HCC, provided, that Participant may describe the
HCC System contemplated by this Agreement in its franchise
offering circular and other materials as required by state or
federal law. Unless otherwise provided herein, any use of
Participant's service marks or trade names by HCC is subject
to prior written approval of Participant. The provisions of
this Section 7.1 will remain binding and in force and effect
as long as such information remains confidential (other than
by breach of this Agreement), notwithstanding the expiration
or termination of this Agreement at any time. Except as is
necessary in connection with the performance of this Agreement
and HCC's business, information regarding the reservations and
other transactions of Participant processed by HCC shall be
treated as confidential whether or not so marked or otherwise
identified as confidential.
SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Participant
agrees to indemnify and hold harmless HCC and HCC's
affiliates, directors, officers, employees and stockholders,
from and against any losses, claims, liabilities, damages or
expenses (including reasonable attorney's fees) occurring as a
result of or arising out of a material breach of this
Agreement on account of Participant's (or its franchisees)
fault, to the extent not caused by the fault of HCC ("HCC's
Losses"). HCC agrees to indemnify and hold harmless
Participant, and Participant's affiliates, directors,
officers, employees and stockholders, from and
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-7-
<PAGE> 8
against any losses, claims, liabilities, damages or expenses
(including reasonable attorney's fees) ("Participant's
Losses") occurring as a result of or arising out of a material
breach of this Agreement on account of HCC's fault to the
extent not caused by the fault of Participant. Promptly after
receipt by an indemnified party of notice of the commencement
of any action or the presentation or other assertion of any
claim which could result in any indemnification claim pursuant
to this Section 8.1, such indemnified party will give prompt
notice thereof to the indemnifying party and the indemnifying
party will be entitled to participate therein or, to the
extent that it wishes, assume the defense thereof with its own
counsel. If the indemnifying party elects to assume the
defense of any such action or claim, the indemnifying party
shall not be liable to the indemnified party for any fees of
other counsel or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof,
other than reasonable costs of investigation and preparation,
unless representation of both parties by the same counsel
would be inappropriate due to actual or potential differing
interests between them. The parties agree to cooperate to the
fullest extent possible in connection with any claim for which
indemnification is or may be sought under this Agreement.
Whether or not the indemnifying party elects to assume the
defense of any such action or claim, the indemnifying party
shall not be liable for any compromise or settlement of any
such action or claim effected without its consent (which shall
not be unreasonably withheld).
SECTION 9. DISCLAIMER OF WARRANTIES
9.1 Waiver of Warranties. EXCEPT TO THE EXTENT RESULTING FROM
HCC'S BREACH OF THIS AGREEMENT OR ITS GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, HCC WILL NOT BE RESPONSIBLE OR LIABLE FOR
ANY FALSIFICATIONS OR INACCURACIES IN THE DATA OR THE
INFORMATION PROCESSED BY OR THROUGH THE HCC SYSTEM NOR WILL IT
HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH RESPECT
TO THE DATA OR THE PAYMENT OF COMMISSIONS UNLESS EXPRESSLY SET
FORTH HEREIN. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND
WORKMANLIKE PRODUCT OR SERVICE OR OTHERWISE, ARE DISCLAIMED BY
HCC AND WAIVED BY PARTICIPANT.
9.2 No Consequential Damages. Except with respect to the
indemnification provisions set forth in Section 8.1 hereof,
neither party will be liable to the other for any
consequential damages caused or resulting from any breach of
this Agreement or arising out of the performance of this
Agreement, and each party hereby expressly waives such
damages.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-8-
<PAGE> 9
SECTION 10. MISCELLANEOUS
10.1 Arbitration of Disputes. Any controversy or claim arising out
of or relating to this contract, or the breach thereof, will
be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. There shall
be a panel of three arbitrators. Each party will select one
arbitrator within thirty (30) days of notice of the dispute,
and the two (2) arbitrators selected shall select a third
neutral arbitrator within thirty (30) days after the second
arbitrator is chosen. All reasonable and necessary costs and
fees (including attorney's fees) incurred in connection with
the arbitration will be borne by the losing party or assessed
in the award as otherwise deemed appropriate by the
arbitrators. If the demand for arbitration is initiated by
Participant, venue of the arbitration proceedings will be
determined by HCC. If the demand for arbitration is initiated
by HCC, venue of the arbitration proceedings will be
determined by Participant.
10.2 Non-Exclusive Agreement. Each party acknowledges that this is
not an exclusive agreement with respect to reservations
commissions clearinghouse services and that each party may
contract with other parties providing same or similar
services.
10.3 Status of Parties. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The
parties hereto are separate and distinct entities
independently contracting with each other at arms length. HCC
will not be deemed by this Agreement to be granting a license
to Participant with respect to the HCC System or any software
or service mark related thereto, or otherwise, this being a
contract for the use and rendering of services only.
10.4 Assignment. This Agreement is not assignable by HCC or
Participant without the prior written consent of the
non-assigning party, and such consent shall not be
unreasonably withheld or delayed provided that Participant may
assign this Agreement to a wholly-owned subsidiary or in
connection with the sale of its reservation system or
franchise system and either party may assign this Agreement
without consent in the event of a merger, consolidation, or
sale of substantially all of its assets.
10.5 Notices. All notices and other communications contemplated
hereby must be in writing (except in the case of
electronically transmitted data) and (a) personally delivered,
(b) deposited in the United States mail, first-class,
registered or certified mail, return receipt requested, with
postage prepaid, (c) sent by overnight courier service (for
next business day delivery), shipping prepaid, (d) sent by
telecopy or facsimile with confirmation of receipt to the
number indicated, or (e) transmitted directly to the recipient
by electronic data transmission pursuant to arrangements made
between the parties. Such notices and other communications
(except in the case of electronically transmitted data) shall
be addressed as follows:
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
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<PAGE> 10
If to HCC: If to Participant:
3811 Turtle Creek Blvd. 10750 Columbia Pike
Suite 1100 Silver Spring, MD 20901
Dallas, TX 75219
Attention: John F. Davis, III Attn: General Counsel
If by telecopy/facsimile to: If by telecopy/facsimile to:
214-528-5675 301-905-4007
cc: Lynn Locke
or such persons or addresses as any party may request by
notice duly given hereunder. Except as otherwise specified
herein, notices will be deemed given and received when
received.
10.6 Controlling Law. This Agreement will be interpreted pursuant
to the laws of the State of Texas without reference to its
conflict of laws principles. Subject to the agreement to
arbitrate and the jurisdiction and venue provisions set forth
in Section 10.1 hereof, any action brought relating to or
arising out of this Agreement must be brought in the state or
federal courts situated in the county and state of the
residence or principal place of business of the party against
whom the action is brought (or any of them, if more than one).
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and
Participant with respect to the provision of services under
the HCC System and supersedes and replaces any and all other
agreements and representations, verbal or written, with
respect to the subject matter of this Agreement. Upon full
execution of this Agreement, that certain HCC Participant
Agreement between HCC and Choice Hotels International, Inc.
effective March 31, 1995 and any amendments thereto is hereby
terminated. There are no representations, warranties or
agreements made or relied upon by either party with respect to
the subject matter of this Agreement that are not contained in
this Agreement.
10.8 Successors and Assigns. This Agreement will be binding upon
and will inure to the benefit of the legal representatives,
successors and duly authorized assigns of each party whether
resulting from merger, acquisition, reorganization or
assignment pursuant to the terms hereof.
10.9 Confidentiality of the Agreement. The parties agree that the
terms and provisions of this Agreement will be kept
confidential and shall be disclosed only to those persons and
entities as required by law or as permitted by the other party
hereto. The parties may, however, disclose the existence of
this Agreement to any person or entity.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-10-
<PAGE> 11
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION CHOICE HOTELS FRANCHISING, INC.
By: /s/ M. Nicholas Jent By: /s/ Bay L. Smith
------------------------- ------------------------
Its: Its:
------------------------- ------------------------
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
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<PAGE> 12
EXHIBIT A
Initial Information to be Provided by Participant to HCC
The fields in each commission record are the following:
- -Record identifier required validated
- -Chain record number required check for duplicates
- -Chain/Brand code required validated
- -Booking source required validated
- -Property ID required validated
- -PNR Number optional no checks
- -Confirmation number required validated presence
- -Cancellation number optional no checks
- -Corporate ID number optional no checks
- -Subscriber IATA number required validated HCC User
- -Group/Guest last name required validated presence
- -Group/Guest first name optional no checks
- -Status code required validated
- -Reason code optional if present, validate
- -Arrival date required validated, no future
- -Departure date required validated, no future
- -Number of nights required validated presence
- -Number of rooms required validated presence
- -Commissionable revenue required validated, no neg.
- -Gross Commission required validated, no neg.
- -Adjustment amount required validated presence
- -Net Commission due required validate computation
- -Currency code required validated
- -Comments optional no checks
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-12-
<PAGE> 1
EXHIBIT 10.37
HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE
HOTEL CLEARING CORPORATION, a Delaware corporation ("HCC"), and HILTON HOTELS
CORPORATION, a Delaware corporation, (hereinafter called "HILTON"), to be
effective the 13th day of January, 1998.
SECTION 1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) Commissionable Reservations. Commissionable
Reservations within a particular time period equals the number of reservations
(both voice and electronic) processed through the HCC System within such time
period that results in a hotel stay and that are identified as "commissionable"
or "partially commissionable" on the transaction records provided by HILTON to
HCC and for which a travel agent commission is paid pursuant to this Agreement.
(ii) HCC System. The HCC System is an automated
clearinghouse system to provide for the coordination of reservation
information, transfer of hotel reservation commissions and ancillary services
to travel agents and Participating Entities.
(iii) Participating Entity. A Participating Entity,
including its participating affiliates or franchisees, is an operator of a
hotel reservation system that has executed an HCC Participant Agreement.
(iv) HCC Travel Agents. An HCC Travel Agent is a travel
agency with a valid ARC or IATA number who has executed an HCC Subscriber
Agreement substantially in the form attached hereto as Exhibit C. A list of
current HCC Travel Agents will be periodically provided by HCC to HILTON.
(v) HCC Travel Agent Commissions. HCC Travel Agent
Commissions are the commissions paid by HILTON to HCC Travel Agents pursuant to
this Agreement. HCC Travel Agent Commissions will be based on commission rates
provided to HCC by HILTON.
(vi) Non-HCC Travel Agent. A Non-HCC Travel Agent is any
person or entity with a valid ARC, IATA or pseudo number who has not executed
an HCC Subscriber Agreement who makes reservations with a Participating Entity
for a Non-HCC Travel Agent Commission.
* Confidential Treatment Requested by Pegasus Systems, Inc.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
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<PAGE> 2
(vii) Non-HCC Travel Agent Commissions. Non-HCC Travel
Agent Commissions are the commissions paid pursuant to this Agreement by HILTON
to Non-HCC Travel Agents for reservations made with HILTON. Non-HCC Travel
Agent Commissions will be based on commission rates provided to HCC by HILTON.
SECTION 2. THE HCC SYSTEM
2.1 Schedule of Implementation. Hilton agrees to the following
Schedule of Implementation:
(i) HILTON will begin processing some of the commission
payments from its US properties that subscribe to HILTON's centralized
commission program during the month of April, 1998 and, no later than May 31,
1998, HILTON will include all of its properties located in the US that
subscribe to HILTON's 's centralized commission program in the HCC System and
will begin processing all HCC Travel Agent Commissions paid by its US
properties; and
(ii) No later than June 30, 1998, HILTON will include all
of its properties that subscribe to HILTON's centralized commission program in
the HCC System and will begin processing all HCC and Non-HCC Travel Agent
Commissions paid by all of its properties.
2.2 Duties of HCC. Subject to delays caused by HILTON or its
agents or a Force Majeure event described in Section 6.2 hereof, pursuant
Section 2.1 above, HCC will diligently and in good faith do all of the
following: provide, maintain and operate the HCC System for the use and benefit
of HILTON, its participating franchisees and affiliates, and other
Participating Entities. HCC will provide all reasonable and necessary
technical support, hardware and software, except as otherwise provided herein,
and modifications to the HCC System to provide clearinghouse services to
HILTON, its participating franchisees and affiliates, as described below. Upon
compliance with the terms of this Agreement by HILTON, its participating
franchisees and affiliates, and subject to Sections 5 and 6 hereof, HCC will
provide the following clearinghouse services to HILTON, its participating
franchisees and affiliates:
(i) identify HILTON (and designated affiliates and
franchisees of HILTON) to travel agents as being an HCC System Participating
Entity;
(ii) provide billing statements for HCC and Non-HCC Travel
Agent Commissions, * (as defined herein), * (as defined herein) and other fees,
costs and expenses to HILTON no later than the fifteenth (15th) business day
after the end of each month as provided in Section 3 below;
(iii) using electronic funds transmittal where commercially
reasonably, within five (5) business days of receipt, distribute collected HCC
and Non-HCC Travel Agent Commissions received from HILTON and its participating
affiliates and franchisees to the appropriate HCC and Non-HCC Travel Agents as
set forth in the travel agent commission information provided by
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HILTON, provided that, for Non-HCC Travel Agent Commissions there shall be a
maximum of one check issued per month for each ARC, IATA or pseudo number. All
funds shall be held by HCC for the benefit of HILTON until paid by HCC to the
travel agents as designated by HILTON. HCC shall not acquire any interest of
any type in such funds. All amounts due for each payment period to any one
location shall be made in one payment.
(iv) provide no later than the fifteenth (15th) business
day of each month, reports to HILTON and HCC and Non-HCC Travel Agents
reflecting the travel agent's reservation transactions with HILTON and
commissions owed based upon the data provided to HCC by HILTON and its
affiliates and franchisees who are participating in the HCC System;
(v) receive, and promptly review and respond to all
travel agent commission inquiries received by mail, phone, fax, via e-mail or
through the Internet.
(vi) provide toll free telephone customer support services
to HCC and Non- HCC Travel Agents from 8:00 a.m. to 5:30 p.m., Dallas, Texas
time, Monday through Friday, exclusive of legal holidays.
(vii) provide HILTON with combined monthly reporting along
with two separate reports showing HCC and Non-HCC Travel Agent transactions
containing the information set forth on Exhibit B hereto; and
(viii) be responsible, by mutually acceptable procedures to
be implemented by HCC, for complying with the laws and regulations relating to
the payment of funds and treatment of unclaimed property resulting from checks
issued to travel agents under this Agreement.
The procedures of the HCC System are subject to changes for enhancements from
time to time as reasonably determined by HCC.
2.3 Duties of HILTON. Subject to delays caused by HCC or its
agents or a Force Majeure event described in Section 6.2 hereof and upon
compliance with the terms of this Agreement by HCC, HILTON shall diligently and
in good faith do the following:
(i) Cooperate fully with HCC personnel with respect to
the implementation of the HCC System between travel agents and HILTON and its
participating affiliates and franchisees;
(ii) Provide HCC with all that is required by HCC to
process all travel agent commissions resulting from reservations (including all
reservations made electronically or by voice, whether directly to the property
or through the use of a central reservation "800" phone number, inclusive of
no-shows, cancellations and non-commissionable transactions) made by travel
agents with HILTON and its participating affiliates and franchisees no less
often than on a monthly basis, HILTON hereby acknowledging responsibility for
such data being complete and accurate and inclusive of all of the information
necessary for HCC to provide the clearinghouse services described
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in Section 2.2 hereof and, without limitation, being such information as set
forth on Exhibit A hereof; and permit and authorize HCC to obtain and use such
data concerning such reservations made with HILTON and its participating
affiliates and franchisees who are participating in the HCC System for purposes
permitted under this Agreement except such data designated as confidential
pursuant to Section 7 hereof;
(iii) Collect all HCC and Non-HCC Travel Agent Commissions
and fees owed by all HILTON's hotels and its participating franchisees and
affiliates and pay such commissions and fees to HCC pursuant to this Agreement
within 48 hours of receipt of the billing statement described in Section 3.4
hereof;
(iv) Use reasonable efforts to notify its franchisees and
affiliates of the relevant requirements of this Agreement;
(v) Permit HCC to use its name and that of any
participating affiliate or franchisee as an entity participating in the HCC
System (but not any logos or trademarks); and
(vi) Provide HCC will a monthly pseudo number file to
update the Non- HCC Travel Agent list with address information for check
processing.
2.4 Modification or Enhancement of the HCC System or HILTON
System. HCC may in its sole discretion modify the operation or enhance the
capability of the HCC System. In the event such modification or enhancement
would require HILTON to modify its central reservation system, property
management system or any other technology or system of HILTON, HILTON may, at
its sole option, (i) elect to accept the modification or enhancement and, in
such event HILTON shall make modifications to its systems as are necessary at
its sole expense, or (ii) elect to not accept the modification or enhancement.
HCC will provide at least ninety (90) days' prior notice to HILTON of such
modification or enhancement.
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Implementation Fee. Upon completion of the implementation of
the HCC System as set forth in Section 2.1(i) hereof, * Upon completion of the
implementation of the HCC System as set forth in Section 2.1(ii) hereof, *
3.2 The HCC Fees. HILTON shall pay a fee of US * for each
payment per location issued in US Dollars to a Non-HCC Travel Agent on behalf
of HILTON pursuant to this Agreement. HILTON shall pay a fee of US * for
each payment per location not issued in US Dollars to a Non-HCC Travel Agent on
behalf of HILTON pursuant to this Agreement.
3.3 Transaction Fee. For each HCC Travel Agent Commissionable
Reservation processed pursuant to this Agreement, the following fees shall be
paid:
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(i) For each of the first, * each month, *
(ii) For each of the next * each month, *
(iii) For each of the next * each month, *
(iv) For each of the next * each month, *
(v) For each of the next * each month, *
(vi) For each Commissionable Reservation * each month, *
Notwithstanding any other provision hereof, in the event HILTON's
travel agent commission rates become materially less favorable to
travel agents than the generally accepted industry standard commission
rates for hotel reservations that exist as of the date of this
Agreement, the parties agree to renegotiate the fees payable hereunder
or HCC may terminate this Agreement within thirty (30) days after
notice of the aforementioned commission rate change.
3.4 Commission Payments. HCC shall pay HCC and Non-HCC Travel
Agent Commissions in the travel agent's local currency or the currency of
choice of the travel agent.
3.5 Disputed Commissions. HCC will provide HILTON and HCC Travel
Agents with periodic reports indicated under Section 2.1(iv) that will indicate
any exceptions to HCC Travel Agent Commissions, based on discrepancies between
information given HCC by HILTON compared to other information available to HCC.
With respect to all exceptions for which HILTON provides supporting
documentation, HCC will forward such documentation to the appropriate HCC
Travel Agent(s), and the HCC Travel Agents involved may pursue such dispute
directly with HILTON, but, absent HCC negligence, error or intentional
misconduct, HCC will not have any liability to either HILTON or any travel
agent (HCC or Non-HCC) with respect to the resolution of any disputed
commission. No dispute concerning any travel agent commissions will in any way
affect or reduce the obligations of HILTON to (i) timely pay all other
undisputed travel agent commissions and (ii) timely pay to HCC all HCC Fees and
other undisputed fees, costs and additional expenses owed by HILTON under this
Agreement.
3.6 Billing Statements. Based upon the information provided HCC
by or with respect to HILTON and its participating affiliates and franchises
pursuant to Section 2.3, above, HCC will provide HILTON a monthly billing
statement detailing (i) HCC and Non-HCC Travel Agent Commissions to be paid by
HILTON for the period covered by such billing statement; (ii) HCC Fees to be
paid by HILTON for the period covered by such billing statement; (iii) * for
the period covered by such billing period; and (iv) all other costs and fees as
provided by this Agreement. All HCC Fees and other costs as provided herein
and all HCC and Non-HCC Travel Agent Commissions shall be paid by HILTON to HCC
in US Dollars.
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SECTION 4. TERM
4.1 Term of Agreement. The initial term of this Agreement, unless
earlier terminated pursuant to the provisions of this Agreement, shall expire
four (4) years after the date of this Agreement. However, this Agreement may
be renewed and extended for additional twelve (12) month periods by mutual
agreement signed by both parties.
SECTION 5. TERMINATION
5.1 Termination Upon Default. Upon the occurrence of an Event of
Default (as defined below) by either party and the failure of such party to
cure such default after notice and opportunity to cure as provided by Section
6.3 below, the nondefaulting party may terminate this Agreement at any time.
5.2 Suspension of Status. Upon the occurrence of an Event of
Default by HILTON or one of HILTON's affiliates or franchisees and the failure
of the defaulting entity to cure such default after notice and opportunity to
cure as provided by Section 6.3 below, then, if HCC does not terminate this
Agreement under Section 5.1, until such time as such Event of Default is cured
HCC shall have the right to suspend the status of the defaulting entity as a
Participating Entity and to notify all travel agents of such default and
suspension through central reservation systems or otherwise.
SECTION 6. DEFAULT
6.1 Events of Default. Subject to Section 6.2 below, any one of
the following will be considered an Event of Default:
(i) The failure of either party to pay any amount due
hereunder within the time required;
(ii) The failure of either party to satisfy the
obligations set forth in this Agreement;
(iii) The refusal or failure of either party (including
HILTON's participating affiliates and franchisees) to perform diligently and in
good faith each and every material provision of this Agreement;
(iv) The commencement by either party of a voluntary case
under Chapter 11 or 7 of the United States Bankruptcy Code, as from time to
time in effect, the commencement against either party of an involuntary case
under said Chapter 11 or 7, either party seeking relief as a debtor under any
applicable law, other than said Chapter 11 or 7, of any jurisdiction relating
to the liquidation or reorganization of debtors or the modification of the
rights of creditors, the entry of a court order adjudging the party bankrupt or
insolvent, ordering its liquidation or reorganization or
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assuming custody or appointing a receiver or other custodian of its property,
or its making an assignment for the benefit of, or entering into a composition
with, its creditors; or
(v) Any such Event of Default shall not relieve the
defaulting party from any of its obligations hereunder, and the non-defaulting
party shall, except as provided in this Agreement, be entitled to whatever
remedies at law or in equity are available to it.
6.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 6.1 is caused by or results from acts of God,
fire, war, civil unrest, accident, power fluctuations or outages,
telecommunication fluctuations, outages or delays, utility failures, mechanical
defects, or other events beyond the control of the defaulting party. However,
if any such occurrence results in any of the events described in Section 6.1,
and the same continues for more than thirty (30) consecutive days, either party
may terminate this Agreement by providing notice as required herein.
6.3 Cure Period. Upon the occurrence of an Event of Default the
non-defaulting party will give written notice to the defaulting party
specifying the alleged default. In the case of a monetary default relating to
commission payments by HILTON or any of its participating affiliates or
franchisees, HILTON will only be allowed to cure such default within two (2)
business days after receipt of such notice, by delivering that amount owed to
HCC in good funds into HCC's bank account. In all other instances, the
defaulting party will be entitled to thirty (30) days from receipt of notice
within which to cure the default.
SECTION 7. CONFIDENTIALITY
7.1 Proprietary Information. During the term of this Agreement,
it is acknowledged by HILTON and HCC that each may receive confidential and
proprietary information that is the property of the other party. All such
confidential and proprietary information will be marked or otherwise identified
as such and will be treated as confidential and proprietary subject only to
disclosure where required by law or where such information becomes part of the
public domain through no fault of the receiving party, is independently
developed by the receiving party or obtained by the receiving party from a
third party free to disclose such information. Such designation may be removed
by each party making the designation. HILTON acknowledges that it will have no
access to and will not use the HCC System or related property, other than as
specifically provided for in this Agreement, and that such system and related
property is confidential and proprietary property of HCC. HCC acknowledges
that information concerning HILTON's and its affiliates' and franchisees'
internal operations shall be deemed confidential information hereunder. Any
use of the other party service marks or trade names is subject to prior written
approval of the other party, except that the Hilton logo may be used in the
graphics of any Registration Statement of the Company filed with the Securities
and Exchange Commission or in any annual report identical to past approved uses
and, provided, that HILTON may describe the HCC System contemplated by this
Agreement in its franchise offering circular and other materials as required by
state or federal law. The provisions of this Section 7.1 will remain binding
and in force and effect as long as such information remains
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confidential (other than by breach of this Agreement), notwithstanding the
expiration or termination of this Agreement at any time. All participating
affiliates and franchisees of either party shall be bound by this provision and
each party shall take all reasonable steps to notify its affiliates and
franchisees of such requirements.
SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Subject to
Section 9.2, HILTON agrees to indemnify and hold harmless HCC and HCC's
affiliates, directors, officers, employees and stockholders, from and against
any losses, claims, liabilities, damages or expenses (including reasonable
attorney's fees) occurring as a result of or arising out of a material breach
of this to the extent not caused by the fault of HCC ("HCC's Losses"). Subject
to Section 9.2, HCC agrees to indemnify and hold harmless HILTON, and HILTON's
affiliates, franchisees, directors, officers, employees and stockholders, from
and against any losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("HILTON's Losses") occurring as a result of or
arising out of a material breach of this Agreement on account of non-payment to
travel agents of funds received by HCC for such payment or HCC's (or its
affiliates or franchisees) fault to the extent not caused by the fault of
HILTON. Promptly after receipt by an indemnified party of notice of the
commencement of any action or the presentation or other assertion of any claim
which could result in any indemnification claim pursuant to this Section 8.1,
such indemnified party will give prompt notice thereof to the indemnifying
party and the indemnifying party will be entitled to participate therein or, to
the extent that it wishes, assume the defense thereof with its own counsel. If
the indemnifying party elects to assume the defense of any such action or
claim, the indemnifying party shall not be liable to the indemnified party for
any fees of other counsel or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation and preparation, unless representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. The parties agree to cooperate to the fullest extent
possible in connection with any claim for which indemnification is or may be
sought under this Agreement. Whether or not the indemnifying party elects to
assume the defense of any such action or claim, the indemnifying party shall
not be liable for any compromise or settlement of any such action or claim
effected without its consent (which shall not be unreasonably withheld).
SECTION 9. DISCLAIMER OF WARRANTIES
9.1 Waiver of Warranties. EXCEPT TO THE EXTENT RESULTING FROM
HCC'S BREACH OF THIS AGREEMENT OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
HCC WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FALSIFICATIONS OR INACCURACIES IN
THE HILTON OR THIRD PARTY DATA OR THE INFORMATION PROCESSED BY OR THROUGH THE
HCC SYSTEM NOR WILL IT HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH
RESPECT TO THE DATA OR THE PAYMENT OF COMMISSIONS UNLESS EXPRESSLY SET FORTH
HEREIN. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
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INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT OR SERVICE OR OTHERWISE,
ARE DISCLAIMED BY HCC AND WAIVED BY HILTON.
9.2 No Consequential Damages. Neither party will be liable to the
other for any consequential damages caused or resulting from any breach of this
Agreement or arising out of the performance of this Agreement, and each party
hereby expressly waives such damages.
SECTION 10. MISCELLANEOUS
10.1 Arbitration of Disputes. Any controversy or claim arising out
of or relating to this contract, or the breach thereof, will be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. There
shall be a panel of three arbitrators. Each party will select one arbitrator
within thirty (30) days of notice of the dispute, and the two (2) arbitrators
selected shall select a third neutral arbitrator within thirty (30) days after
the second arbitrator is chosen. All reasonable and necessary costs and fees
(including attorney's fees) incurred in connection with the arbitration will be
borne by the losing party or assessed in the award as otherwise deemed
appropriate by the arbitrators. If the demand for arbitration is initiated by
HILTON, venue of the arbitration proceedings will be determined by HCC. If the
demand for arbitration is initiated by HCC, venue of the arbitration
proceedings will be determined by HILTON.
10.2 Exclusive Agreement. HILTON acknowledges and agrees that this
is an exclusive agreement with respect to travel agent commissions
clearinghouse services for hotels that subscribe to HILTON's centralized
commission program and that it may not contract with other parties providing
same or similar services.
10.3 Status of Parties. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties hereto are
separate and distinct entities independently contracting with each other at
arms length. HCC will not be deemed by this Agreement to be granting a license
to HILTON with respect to the HCC System or any software or service mark
related thereto, or otherwise, this being a contract for the use and rendering
of services only.
10.4 Assignment. This Agreement is not assignable by HCC or HILTON
without the prior written consent of the nonassigning party and such consent
shall not be unreasonably withheld or delayed, provided however either party
may assign this Agreement in the event of a merger, acquisition, or sale of
substantially all of the party's assets.
10.5 Notices. All notices and other communications contemplated
hereby must be in writing (except in the case of electronically transmitted
data) and (a) personally delivered, (b) deposited in the United States mail,
first-class, registered or certified mail, return receipt requested, with
postage prepaid, (c) sent by overnight courier service (for next business day
delivery), shipping
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prepaid, (d) sent by telecopy with confirmation of receipt of telecopy to the
number indicated, or (e) transmitted directly to the recipient by electronic
data transmission pursuant to arrangements made between the parties. Such
notices and other communications (except in the case of electronically
transmitted data) shall be addressed as follows:
<TABLE>
<S> <C>
If to HCC: If to HILTON:
Hotel Clearing Corporation Hilton Hotels Corporation
3811 Turtle Creek Blvd., Suite 1100 9336 Civic Center Drive
Dallas, TX 75219 Beverly Hills, California 90210
Attention: John F. Davis, III Attention: Bruce Rosenberg
(Facsimile: (214) 528-5675) (Facsimile: (310) 859-2513)
cc: Executive Vice President and General Counsel
</TABLE>
or such persons or addresses as any party may request by notice duly given
hereunder. Except as otherwise specified herein, notices will be deemed given
and received when received.
10.6 Controlling Law. This Agreement will be interpreted pursuant
to the laws of the State of Texas without reference to its conflict of laws
principles.
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and HILTON with respect to
the provision of services under the HCC System and supersedes and replaces any
and all other agreements and representations, verbal or written, with respect
to the subject matter of this Agreement. There are no representations,
warranties or agreements made or relied upon by either party with respect to
the subject matter of this Agreement that are not contained in this Agreement.
10.8 Successors and Assigns. This Agreement will be binding upon
and will inure to the benefit of the legal representatives, successors and duly
authorized assigns of each party whether resulting from merger, acquisition,
reorganization or assignment pursuant to the terms hereof.
10.9 Confidentiality of the Agreement. The parties agree that the
terms and provisions of this Agreement will be kept confidential and shall be
disclosed only to those persons and entities as required by law or as permitted
by the other party hereto. The parties may, however, disclose the existence of
this Agreement to any person or entity and this Agreement may be disclosed, to
the extent required, in connection with filings with the Securities and
Exchange Commission.
10.10 Software and Intellectual Property. Each of the parties
hereto represents and warrants to the other that, with respect to all software
and other intellectual property in connection with the operation of the
Interface furnished or required to be furnished pursuant to this Agreement
(collectively, the "Intellectual Property"), each either owns the Intellectual
Property furnished by it or is fully authorized to deliver the Intellectual
Property and to allow the Intellectual Property to be used in connection with
the Interface, as contemplated by this Agreement. Should any claim be
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raised by any third party that the use of any of the Intellectual Property or
the delivery of any of the Intellectual Property in connection with this
agreement constitutes infringement of any patent, copyright, license or other
property right (a "Claim"), the party furnishing such Intellectual Property
shall, at its expense, defend any such Claim in accordance with the provisions
of Section 8.1 of this Agreement. Should either party be temporarily or
permanently enjoined from using any of the Intellectual Property as a result of
any Claim, the other party, at its option and own expense, shall either procure
the right to continue to use the Intellectual Property free from any Claim or
replace or modify the offending Intellectual Property so that its use becomes
non-infringing, within 15 days of the date on which it receives notice of the
claim (either such corrective action being referred to herein as a
"Correction"). If a Correction is not accomplished, the party who furnished
the Intellectual Property resulting in the Claim shall be deemed to be in
default of this Agreement, and in such event, Sections 5.1 and 6.1 of this
Agreement shall control; provided, however, that the 15 day period specified
above shall be deemed to be the applicable cure period under Section 6.3, and
once that 15 day period has expired without a Correction having occurred, the
applicable cure period under Section 6.3 shall be deemed to have expired.
Without limiting Article 8 of this Agreement, the party who furnished the
Intellectual Property resulting in the Claim shall also be obligated to
indemnify the other party for any of its losses (such losses being THISCO's
Losses or HOTEL's Losses, as the case may be, as defined in section 8.1 hereof)
in connection with any Claim for which a Correction is not made within such 15
day period, in accordance with Article 8.
10.11 Other HCC Participant Agreements. In the event any other HCC
Participant Agreement shall contain provisions regarding fees as specified in
Sections 3.2 and 3.3 hereof, rights of termination as set forth in Section 5
hereof, indemnification as set forth in Section 8 hereof or disclaimer of
warranties as set forth in Section 9 hereof, any of which are substantially and
materially more favorable than those provisions contained herein, HCC shall
promptly provide notice to HILTON of such provision(s) and HILTON shall have
the right to amend this Agreement to include the affected provisions.
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION
By: /s/ John F. Davis
-------------------------------
John F. Davis, III
President
HILTON HOTELS CORPORATION
By: /s/ Francis Joseph Durocher
------------------------------
Francis Joseph Durocher
Senior Vice President
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EXHIBIT "A"
Initial Information to be Provided by HILTON to HCC
The fields in each commission record are the following:
<TABLE>
<S> <C> <C>
- -Record identifier required validated
- -Chain record number required check for duplicates
- -Chain/Brand code required validated
- -Booking source required validated
- -Property ID required validated
- -PNR Number optional no checks
- -Confirmation number required validated presence
- -Cancellation number optional no checks
- -Corporate ID number optional no checks
- -Subscriber IATA number required validated HCC User
- -Group/Guest last name required validated presence
- -Group/Guest first name optional no checks
- -Status code required validated
- -Reason code optional if present, validate
- -Arrival date required validated, no future
- -Departure date required validated, no future
- -Number of nights required validated presence
- -Number of rooms required validated presence
- -Commissionable revenue required validated, no neg.
- -Gross Commission required validated, no neg.
- -Adjustment amount required validated presence
- -Net Commission due required validate computation
- -Currency code required validated
- -Comments optional no checks
</TABLE>
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EXHIBIT B
INFORMATION CONTAINED IN TWO REPORTS SHOWING
HCC AND NON-HCC TRAVEL AGENT TRANSACTIONS.
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HOTEL CLEARING CORPORATION
SUBSCRIBER AGREEMENT
SUBSCRIBER hereby contracts with THE HOTEL CLEARING CORPORATION ("HCC") to
provide records of hotel reservation bookings and to process hotel reservation
commissions on the following terms and conditions:
Definitions:
"SUBSCRIBER" is the travel agency and all of its participating travel agent
locations.
"HCC System" is HCC's clearing house system which accounts for reservations
made by travel agents with HCC Hotels and processes commissions payable to
those travel agents for the reservations.
"HCC Hotel" is a hotel property who is a participant in the HCC System.
"HCC Reservation" is a reservation at an HCC Hotel originated by SUBSCRIBER for
which the HCC Hotel has been paid for all or a part of the reserved stay,
including non-refundable deposits for reservations originated by SUBSCRIBER,
for which SUBSCRIBER is entitled to a commission. HCC Reservations include
reservations made by telephone or electronically.
"HCC Reconciliation Report" is a record of all HCC Reservations for a specified
month and a computation of the commission due SUBSCRIBER for those
reservations.
"Subscriber Commission" is the commission payment owed to SUBSCRIBER by an HCC
Hotel as reported in the HCC Reconciliation Report less the HCC Fee.
1. Term and Termination. The initial term of this Agreement shall be
three (3) years but it shall continue in effect thereafter for successive one
(1) year terms unless terminated by notice at least ninety (90) days prior to
the expiration of the initial term or any additional one (1) year term.
2. "HCC Fee". This is the amount paid by SUBSCRIBER to HCC for the
services set forth herein which shall be (i) during the first eighteen (18)
months of this Agreement, an amount equal to * of the total monthly commission
paid by HCC Hotels to SUBSCRIBER as set forth on the HCC Reconciliation Report
and (ii) for the remainder of the term of this Agreement, an amount equal to *
of the total monthly commission paid by HCC Hotels to SUBSCRIBER as set forth
on the HCC Reconciliation Report, plus all fees for Optional Services, if any,
requested by SUBSCRIBER.
3. The HCC System. During the term of this Agreement, HCC shall within
fifteen (15) business days after the end of each calendar month (the "Month"),
(i) submit a HCC Reconciliation Report to each HCC Hotel for payment to HCC of
all commissions the HCC Hotel owes to
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-14-
<PAGE> 15
SUBSCRIBER for HCC Reservations for the Month, (ii) transmit to SUBSCRIBER by
mail the monthly HCC Reconciliation Report and (iii) pay to SUBSCRIBER by check
in the local currency of SUBSCRIBER the total Subscriber Commissions paid by
all HCC Hotels pursuant to the HCC Reconciliation Report for the Month
(converted to U.S. dollars if necessary).
4. Optional Services. HCC will provide the following services selected
by SUBSCRIBER for the fee indicated:
[ ] Electronic fund transfer of the Subscriber Commission to
SUBSCRIBER's U.S. bank account. Monthly Fee: ______________.
[ ] Electronic media transfer to SUBSCRIBER of the HCC
Reconciliation Report. Monthly Fee: ______________.
[ ] Quarterly and annual executive summary reports (by ARC number,
HCC assigned customer number or payment location) of
Subscriber Commission transactions which includes information
by hotel, number of room nights, commissionable revenue and
average commission per stay. Monthly Fee: ______________.
5. Acknowledgment and Disclaimer. SUBSCRIBER acknowledges that the
services rendered by HCC are those of a clearing house and, except as expressly
set forth herein, under no circumstances shall HCC be responsible for the
collection of commissions owing SUBSCRIBER. HCC shall not be responsible or
liable for any inaccuracy in the information provided to SUBSCRIBER in the HCC
Reconciliation Report or any other report. HCC shall only be liable to
SUBSCRIBER for Subscriber Commissions actually collected by HCC. In the event
HCC shall fail in any respect to perform the services set forth herein, it
shall, under no circumstances, be liable for uncollected commissions to
SUBSCRIBER or any other liability resulting therefrom including, without
limitation, consequential damages. SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY BREACH OF THIS AGREEMENT BY HCC SHALL BE TERMINATION OF THIS AGREEMENT AND
THE ENTITLEMENT TO SUBSCRIBER COMMISSIONS ACTUALLY COLLECTED AND NOT PAID. ALL
WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATIONS, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT
OR SERVICE, OR OTHERWISE, ARE DISCLAIMED AND WAIVED. In the event a failure or
delay in the performance of this Agreement results from an act of God, labor
strike or other events beyond the control of the party obligated to perform,
such failure or delay shall not constitute a breach of this Agreement nor shall
the parties hereto be liable for damages resulting from such event.
6. Dispute Resolution. In the event of any dispute between HCC and
SUBSCRIBER arising out of this Agreement, the parties agree that the laws of
the State of Texas, USA shall control and that venue of any legal proceeding
shall be in Dallas, Texas USA. In the event a dispute arises between
SUBSCRIBER and a HCC Hotel with respect to a HCC Reconciliation Report or a
commission, HCC shall have no obligation or liability with respect to such
dispute and
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-15-
<PAGE> 16
SUBSCRIBER agrees that SUBSCRIBER shall be solely responsible for any action to
resolve the dispute and/or to collect its commission and agrees to indemnify
HCC for any liability arising therefrom.
7. Miscellaneous.
a) Any notice to be provided with respect to any matter arising
out of this Agreement shall be in writing and shall be
delivered by certified mail or next day delivery.
b) HCC and SUBSCRIBER may disclose the existence of this
Agreement in releases to the public or otherwise. HCC may use
SUBSCRIBER'S name and address in any listing, advertisement or
promotional material to indicate that SUBSCRIBER has signed
this Agreement and endorses the HCC System.
c) Any proprietary information disclosed to SUBSCRIBER by HCC or
its representatives shall be so designated and shall be
treated as confidential.
d) This Agreement contains all of the provisions of any agreement
between HCC and SUBSCRIBER with respect to the subject matter
set forth herein and all agreements in effect prior to the
date hereof with respect to the subject matter hereof,
including but not limited to HCC Subscriber Agreements
executed prior to the date hereof, are hereby terminated.
SUBSCRIBER has not relied upon any promises or representations
by HCC except as set forth herein.
e) This Agreement shall be binding upon and shall inure to the
benefit of the heirs, successors and assigns of the parties
hereto.
THE HOTEL CLEARING CORPORATION
3811 TURTLE CREEK BLVD., SUITE 1100 --------------
DALLAS, TEXAS 75219 (AGENCY NAME)
- ------------------------------------------- -------------------------
(Signature) (Signature)
- ------------------------------------------- -------------------------
Printed Name Printed Name
- ------------------------------------------- -------------------------
Date Date
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-16-
<PAGE> 1
EXHIBIT 10.38
FIRST AMENDMENT AND ADDENDUM
TO HCC PARTICIPANT AGREEMENT
This First Amendment and Addendum to HCC Participant Agreement is
entered into by and between The Hotel Clearing Corporation ("HCC") and Promus
Hotels, Inc. ("Participant") to be effective as provided herein. This First
Amendment and Addendum to HCC Participant Agreement shall hereinafter be called
the "First Amendment".
AGREED FACTS
1. HCC and Participant entered into an HCC Participant Agreement
in October of 1997 (the "HCC Agreement").
2. HCC and Participant want to amend the HCC Agreement as more
specifically set forth herein.
3. HCC and Participant intend for this First Amendment to set
forth the entirety of their agreement made this date as it
relates to the amendment of the HCC Agreement.
AGREEMENT
In consideration of the above-stated facts which are hereby
acknowledged and confessed as true and correct by Purchaser and Seller, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is hereby agreed as follows:
1. Section 2.1(x) of the HCC Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
"(x) provide information for IRS Form 1099 processing for all
HCC and Non-HCC Travel Agents".
2. Section 2.2(iii) of the Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
"(iii) Collect all HCC and Non-HCC Travel Agent Commissions
and fees owed by all Participant's hotels and its
participating franchisees and affiliates and pay such
commissions and fees to HCC pursuant to this Agreement within
forty eight (48) hours of receipt of the billing statement
described in Section 3.4 hereof provided that Participant may
withhold * from each Non-HCC Travel Agent Commission;"
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
-1-
<PAGE> 2
3. Section 3.2 of the Agreement is hereby deleted in its entirety
and is hereby replaced with the following:
"3.2 Participant Transaction Fee. For each HCC Travel Agent
Commission processed pursuant to this Agreement, * . The *
Fee shall be paid each month by wire transfer within three (3)
business days after receipt * Commissions to be processed
pursuant to this Agreement."
4. The effective date of the HCC Agreement and this First
Amendment is agreed to be November 1, 1997.
5. This First Amendment shall be and hereby is incorporated into
the HCC Agreement for all intents and purposes and all terms,
provisions and definitions of the HCC Agreement shall apply.
6. Except where inconsistent with the terms of this First
Amendment, the HCC Agreement is hereby ratified and affirmed
in all respects.
This Agreement, upon being executed by the parties hereto shall be
effective as of the date set forth herein.
THE HOTEL CLEARING CORPORATION PROMUS HOTELS, INC.
By: /s/ John F. Davis, III By:/s/ Lorna Ray Brown
------------------------- -------------------------
John F. Davis, III Lorna Ray Brown
President Vice President
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEM, INC.
-2-
<PAGE> 1
EXHIBIT 10.52
FIRST AMENDMENT TO ULTRASWITCH USER AGREEMENT
This First Amendment to UltraSwitch User Agreement (the "First
Amendment") is made and entered into as of January 13, 1998 ("Effective Date")
by and between The Hotel Industry Switch Company, a Delaware corporation
("THISCO") and Hilton Hotels Corporation, a Delaware corporation ("HOTEL").
WHEREAS, THISCO and HOTEL are parties to that certain UltraSwitch User
Agreement dated effective April 25, 1996 (the "Agreement") (initial capitalized
terms not otherwise defined herein shall have the meanings given such terms in
the Agreement); and
WHEREAS, THISCO desires to offer and HOTEL desires to accept a new
electronic message router which will route messages and transactions from
Reservation Providers to and from, as appropriate, the North central
reservation system ("North") or the Anasazi central reservation system
("Anasazi"), both of which an affiliate of HOTEL will operate concurrently, and
otherwise amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, THISCO and HOTEL
hereby agree as follows:
1. A new Section 1.1(viii) is hereby added to the Agreement
immediately following the current Section 1.1(vii) as follows:
"(viii) Router. The Router is the new electronic message router to be
developed and owned by THISCO which THISCO will develop, test and
implement, according to specifications mutually agreed between THISCO
and HOTEL, which will automatically and seamlessly route messages and
transactions from Reservation Providers to and from, as appropriate,
North and Anasazi, without diminution in service. The specifications
for the Router shall include, without limitation, a direct connection
to type A and B connections to and from Amadeus and SITA and North and
Anasazi."
2. The following is hereby added at the end of Section 2.1 of the
Agreement:
"THISCO will complete development, testing and implementation of a
fully-functional and operational Router no later than April 15, 1998
provided that the completion date may be extended an additional thirty
(30) days in the event of technical difficulties. HOTEL agrees to
cooperate as reasonable and necessary to complete the development,
testing and implementation of the Router as set forth herein. In the
event the development, testing and implementation of a fully
functional and operational router has
* Confidential Treatment Requested by Pegasus Systems, Inc.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
-1-
<PAGE> 2
not been completed as of May 15, 1998 and such failure is primarily as
a result of delays caused by HOTEL and/or its vendors or other agents
and HOTEL terminates this Agreement, HOTEL agrees to pay THISCO a
termination fee equal to all personnel and other costs actually
incurred by THISCO in connection with the development, testing and
implementation of the Router not to exceed an amount mutually agreed
by the parties hereto as set forth in the specifications and cost
requirements prepared by THISCO. Subject to the terms of a
Non-Disclosure and Confidentiality Agreement in the form attached
hereto as Exhibit A hereto, THISCO agrees to provide all necessary
information and code promptly to Anasazi's vendor and any other vendor
performing work on HOTEL's central reservation system project.
Notwithstanding anything to the contrary contained in the Agreement,
including without limitation Section 2.4, no migration, connectivity
or additional Net Reservation or other fee or charge of any kind shall
be due or payable in regard to the Router, North, Anasazi, Amadeus or
SITA, and THISCO shall be solely responsible for all costs and
expenses related to such matters, without reimbursement or consulting
or other payment of any kind. From and after the date of full
functioning and operation, the Router shall be considered part of the
UltraSwitch and the Interface."
3. At the end of Section 2.1 of the Agreement, the following is
hereby added:
"THISCO agrees to develop, test and implement, as part of the
UltraSwitch Interface, a connection to Amadeus Complete Access Plus
pursuant to a mutually agreed schedule which shall provide for
completion of such development, testing and implementation no later
than March 31, 1999."
4. The following is hereby added following the first sentence of
Section 2.2 of the Agreement:
"THISCO will develop and make available to HOTEL on a timely basis
proposed new software updates/enhancements that will be utilized with
UltraSwitch."
5. Section 3.2 of the Agreement is hereby deleted in its entirety
and is hereby replaced with the following:
"HOTEL agrees to process pursuant to this Agreement one hundred
percent (100%) of the reservation transactions received from the
Amadeus global distribution system during the entirety of the term
hereof."
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-2-
<PAGE> 3
6. In Section 3.1 of the Agreement, as of the Effective Date of
this First Amendment, * is deleted and * inserted in lieu thereof, and the
following is added immediately following the new *
"In no event will the total fees for all Status Changes exceed * in
a calendar year."
7. The second sentence in Section 5.1 of the Agreement is hereby
deleted in its entirety.
8. A new Section 6.4 is hereby added to the Agreement as follows:
"6.4 Breach or Early Termination By HOTEL. In the event
of a breach or termination (not resulting from an uncured breach by
THISCO) of this Agreement by HOTEL prior to the expiration of the term
of this Agreement, HOTEL agrees to pay THISCO an amount equal to the
Amadeus Annual Reservation Fee (as hereinafter defined) and the Annual
Status Change Fee (as hereinafter defined) for each year (or prorated
for any part thereof) remaining on the term of the Agreement after the
date of breach or early termination. For purposes of this section,
(i) the Amadeus Annual Reservation Fee is an amount equal to the
transaction fees paid by HOTEL to THISCO for Net Reservations
originating with the Amadeus global distribution system during the
twelve (12) months immediately preceding the breach or early
termination provided such amount shall not exceed * and (ii) the
Annual Status Change Fee is * per year. It is acknowledged and agreed
that the damages to THISCO for any uncured breach or early termination
by HOTEL would be difficult to accurately determine but the agreed
amounts set forth in this section are a fair and reasonable estimate
and are not a penalty."
9. A new sentence is hereby added to Section 10.10 of the
Agreement as follows:
"This Agreement may be disclosed, to the extent required, in
connection with filings with the Securities and Exchange Commission."
10. The terms and conditions of the Agreement shall remain
unchanged and in full force and effect except as amended hereby.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-3-
<PAGE> 4
IN WITNESS WHEREOF, THISCO and HOTEL have entered into this First
Amendment as of the date first above written.
THISCO HOTEL
The Hotel Industry Switch Company, Hilton Hotels Corporation,
a Delaware corporation a Delaware corporation
By: /s/ John F. Davis, III By: /s/ Francis Joseph Durocher
--------------------------- ---------------------------
John F. Davis, III Francis Joseph Durocher
President Senior Vice President
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-4-
<PAGE> 5
PEGASUS SYSTEMS, INC.
NON-DISCLOSURE AGREEMENT TO PROTECT
RELEASE OF CONFIDENTIAL INFORMATION
In the course of our forthcoming discussions and negotiations involving Pegasus
Systems, Inc. (including its affiliates and subsidiaries The Hotel Industry
Switch Company, The Hotel Clearing Corporation, TravelWeb, Inc. and Pegasus IQ,
Inc.), hereinafter collectively called "Pegasus" and its products and/or
services and relating to your consideration of a business transaction with
Pegasus or the purchase of one or more of its products and/or services, we may
reveal to you certain confidential or proprietary information of Pegasus with
respect to its corporate existence, ownership and governance and/or its
products and/or services, its financial condition or otherwise. Furthermore,
we may have prior to the date of this Agreement, disclosed to you certain
confidential and proprietary information of Pegasus with respect to Pegasus
and/or its products and/or services and Pegasus' business. In the interest of
avoiding any misunderstandings about the basis on which this information has
been or will be disclosed to you, we are requesting that you read and agree to
the following terms:
You agree to not disclose to any person any confidential or
proprietary information of Pegasus except as may be specifically
authorized in writing by an officer or authorized representative of
Pegasus or as otherwise permitted by this Agreement. The confidential
and proprietary information in this context includes but is not
limited to all information relative to Pegasus' business, its business
plans, strategies or affiliations, its corporate existence, ownership
and governance and its products and services (now existing or
proposed), and any and all information generated by Pegasus' products
and services. You also agree to make sure that you have appropriate
agreements with each of your employees, representatives and agents to
enable you to comply with your obligations under this agreement before
authorizing them to have access to such information and that you will
obtain the prior approval of Pegasus for any such further
dissemination of the confidential and proprietary information to
persons other than your own employees. You also agree to do all
things reasonably necessary to prevent any of your employees,
representatives and agents from disclosing any such information to any
third parties. Additionally, you shall disclose such confidential and
proprietary information solely to those additional persons to whom it
is absolutely necessary to disclose such information and only on a
"need to know" basis.
You further agree to use any confidential or proprietary information
disclosed to you solely for the purpose of determining whether or not
to enter into a business transaction with Pegasus and/or to purchase
Pegasus' products and/or services. On termination or expiration of
our discussions and the failure of you to enter into a business
transaction with Pegasus or to purchase Pegasus' products and/or
services, you will return all originals and copies of all such
information in your possession. You shall not, under any
circumstances, make
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
Exhibit A - Page 1
<PAGE> 6
or create any copy of any of the information provided to you or
retain, in any form, any of the information without the express
written consent of Pegasus.
Confidential Information shall not include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and
made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by
the disclosing party as shown by the receiving party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party's Confidential Information, as
shown by documents and other competent evidence in the receiving party's
possession; or (vi) is required by law to be disclosed by the receiving party,
provided that the receiving party gives the disclosing party prompt written
notice of such requirement prior to such disclosure and assistance in obtaining
an order protecting the information from public disclosure.
You acknowledge that Pegasus would not enter into or continue
discussions with you without your agreement to the terms hereof and you have
confirmed that it is not your intent to use the specific information disclosed
under this agreement except for the purposes stated herein. If these terms are
acceptable to you, please sign this letter agreement below where indicated and
return one signed copy to us for our files. A facsimile transmittal of your
signature on this Agreement shall be sufficient for all purposes. Thank you
for your cooperation with respect to this matter.
ACCEPTED AND AGREED:
NAME
By:
----------------------------------
Its:
----------------------------------
Date:
----------------------------------
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
Exhibit A - Page 2
<PAGE> 1
EXHIBIT 10.54
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc.
(Pegasus) and InterContinental Hotels Corporation ('Participant') on the
following terms and conditions:
1. Property Information Database. Pegasus will provide Participant
with the ability to create a digital database of Participant's
properties which is (i) capable of being accessed by distribution
systems with whom Pegasus contracts and (ii) where functionality
exists, capable of permitting the accessor of the database to
make, amend and cancel reservations with Participant.
Participant shall be solely responsible for the creation and
editing of the property database pursuant to Pegasus' prescribed
methods.
2. Distribution of the Database. Pegasus will contract and develop
interfaces with distribution systems to access Participant's
database.
3. Distribution Systems Interface. For each distribution system,
Pegasus will create an operable interface providing access to
Participant's database and maintain the interface during the term
of the Distribution Agreement. All updates and edits of the
database shall be accessible by the distribution systems within
two (2) business days of receipt by Pegasus.
4. Fees.
(a) For the services provided by Pegasus as set forth herein,
Participant shall pay to Pegasus the fees set forth on
Schedule A.
(b) For providing reservation functionality to accessors of
the database, Participant agrees to pay Pegasus the
following:
(i) For each Net Reservation processed through the on-
line reservation functionality developed by Pegasus
and originating with a distribution system with
whom Pegasus contracts,
* Confidential Treatment Requested by Pegasus Systems, Inc.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
<PAGE> 2
Participant shall pay to Pegasus a fee of * Net
Reservations within a particular time period equal
the number of reservations made by an accessor of a
distribution system exhibiting Participant's
database within such time period less the number of
reservations to which notice of cancellation is
received by the distribution system within such
time period.
(ii) In the event the reservation processing originating
with distribution systems is done via E-mail,
Participant shall pay Pegasus a monthly fee of *
(iii) In the event a distribution system with whom
Pegasus contracts charges a fee for Net
Reservations originating with their system and
there is no commission or other fee charged to
Participant by the distribution system for the Net
Reservation, Participant agrees to pay to Pegasus
the fee charged, provided the fee to Participant
shall *
(c) Pegasus will invoice Participant for all fees as set forth
herein and as provided on Schedule A including any taxes
applicable to such fees and Participant agrees to pay each
invoice upon receipt. Each invoice shall be past due and
it shall be a breach of this Agreement if it is not paid
within thirty (30) days after the date of the invoice.
All payments to Pegasus shall be made in U.S. Dollars.
Pegasus may, once each year, increase the fees set forth
in (a) and (b) above up to * of the then-existing fee.
Any fee changes resulting from an increase in the services
or number of properties in the database will be invoiced
upon notice of such increase or at the next scheduled
invoice, at Pegasus' option.
5. Term. The initial term of this Agreement shall be for three (3)
years from the date hereof provided that the Agreement may be
automatically renewed and extended by mutual agreement for
additional one (1) year terms thereafter.
6. Property Rights. The information provided by Participant is
acknowledged to
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
-2-
<PAGE> 3
be the sole property of Participant and Pegasus may not
distribute or allow access to any of the information in any
manner other than pursuant to this Agreement. Participant shall
be solely and exclusively responsible for the protection of any
and all of its intellectual property including, but not limited
to, the inclusion of any and all statutory or other notices
customarily used or required for purposes of providing notice of
ownership or protection of Participant's trademarks, trade names,
service marks or copyrights.
7. Disclaimer, Limitation of Liabilities and Risk of Internet Usage.
PEGASUS WILL NOT BE RESPONSIBLE OR LIABLE FOR (i) ANY
FALSIFICATIONS OR INACCURACIES IN ANY OF THE INFORMATION, (ii)
ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE PUBLICATION OF THE
INFORMATION ON THE INTERNET OR CREATION OR FUNCTIONALITY OF
RESERVATION CAPABILITIES UNLESS EXPRESSLY SET FORTH HEREIN, (iii)
ANY CLAIM, DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT OF A
COMPUTER OPERATOR'S OR DISTRIBUTION SYSTEMS ACCESS TO
PARTICIPANT'S RESERVATION SYSTEM AND/OR THE MAKING, CHANGING OR
CANCELING OF A RESERVATION AND THE USE OF A CREDIT CARD OR OTHER
DEBIT DEVICE IN CONNECTION THEREWITH, OR (V) ANY CLAIM RESULTING
FROM ANY INTERRUPTION, MALFUNCTION OR CHANGE IN THE USE OF THE
INTERNET OR A DISTRIBUTION SYSTEM, EXCEPT TO THE EXTENT RESULTING
FROM PEGASUS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ALL
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WOMANLIKE PRODUCT
OR SERVICE OR OTHERWISE ARE DISCLAIMED BY PEGASUS AND WAIVED BY
PARTICIPANT. PARTICIPANT ACKNOWLEDGES AND AGREES THAT ALLOWING
ACCESS TO ITS DATABASE AND RESERVATION SYSTEM TO COMPUTERS
ACCESSING THE INTERNET VIA ANY DISTRIBUTION SYSTEM IS AT
PARTICIPANT'S OWN RISK. Pegasus shall not be responsible for the
order, completeness or format of Participant's database being
published by distribution systems. Participant acknowledges and
agrees that the internet is a communication medium over which
Pegasus has no control and that its continued utilization in its
present form at current costs is uncertain. Therefore, if at any
time during the term of this Agreement, the cost of access to the
internet increases or there is imposed a fee or cost for access
to or use of the internet communication lines, or there is
imposed any law, governmental ruling, or regulation the result of
which increases the cost of access to or usage of the Internet or
otherwise makes it impractical to continue to perform this
Agreement, either party may, upon notice to the other party,
immediately terminate this Agreement without such action
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-3-
<PAGE> 4
constituting an event of default. Pegasus shall not be liable
for any breach of this Agreement resulting from an act of God,
accidents, power or telecommunication outages or delays,
mechanical defects or other events beyond its control.
8. Breach. In the event of a breach of this Agreement, the non-
breaching party may terminate this Agreement after providing
notice to the other party of such breach and the failure of the
breaching party to cure the breach within ten (10) days of
receipt of the notice. Upon breach by Participant and failure to
timely cure Pegasus may immediately cease the distribution and/or
publication of Participant's database on distribution systems.
9. Miscellaneous. This Agreement shall be interpreted in accordance
with the laws of the State of Texas and any legal proceeding
arising out of this Agreement shall have venue in Dallas County,
Texas. This Agreement shall be binding upon and inure to the
benefit of the legal representatives, successor and assigns of
the parties hereto. This Agreement contains all the provisions
of any agreement between Pegasus and Participant with respect to
the creation, maintenance and distribution of Participant's
database and Participant has not relied upon any promises or
representations by Pegasus with respect to the subject matter
except as set forth herein. This Agreement shall terminate and
replace any existing agreement between Participant and TravelWeb,
Inc.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-4-
<PAGE> 5
PEGASUS SYSTEMS, INC. INTER-CONTINENTAL HOTELS
CORPORATION
3811 Turtle Creek Boulevard, 1120 Avenue of the Americas
Suite 1100 New York, New York 10036
Dallas, Texas 75219
By: /s/ John F. Davis By: /s/ J.T. Kuhlman
-------------------------------- ------------------------------
Date: 9/10/97 Date: 9/2/97
------------------------------ ------------------------------
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-5-
<PAGE> 6
SCHEDULE A
1. Fees. Participant shall pay to Pegasus the following fees:
(i) For 1 to 25 Participant properties in the database, *
property per month;
(ii) For 26 to 100 Participant properties in the database, *
property per month;
(iii) For 101 to 200 Participant properties in the database, *
property per month;
(iv) For 201 to 500 Participant properties in the database, *
property per month;
(v) For 501 to 1,000 Participant properties in the database, *
property per month;
(vi) For 1,001 to 2,000 Participant properties in the database,
* property per month;
(vii) For in excess of 2,000 Participant properties in the
database, * property per month.
The fees for this service shall be paid quarterly in advance.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
-6-
<PAGE> 1
EXHIBIT 11.1
EXHIBIT 11.1 -- COMPUTATION OF PER SHARE LOSS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
<S> <C> <C>
BASIC AND DILUTED NET LOSS PER SHARE:
Net loss.............................. $(3,485) $ (69)
======= ======
Weighted average common shares
outstanding........................ 5,247 6,196
======= ======
Basic and diluted net loss per
common share....................... $ (0.66) $(0.01)
======= ======
</TABLE>
<PAGE> 1
EXHIBIT 21.1
LIST OF SUBSIDIARIES
The Hotel Industry Switch Company Delaware
The Hotel Clearing Corporation Delaware
Pegasus IQ, Inc. Delaware
TravelWeb, Inc. Delaware
Pegasus Systems, Inc. (UK) Limited UK
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of Pegasus Systems, Inc. of our report dated
February 21, 1997, except as to Note 13, which is as of May 12, 1997, Note 15,
which is as of August 6, 1997, and Note 16, which is as of January 26, 1998,
relating to the financial statements of Pegasus Systems, Inc., which appears in
such Prospectus. We also consent to the application of such report to the
Financial Statement Schedule for the year ended December 31, 1996 listed under
Item 16(b) of this Registration Statement when such schedule is read in
conjunction with the financial statements referred to in our report. The audit
referred to in such report also included this schedule. We also consent to the
references to us under the headings "Experts" and "Selected Consolidated
Financial Data" in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Selected Consolidated
Financial Data."
PRICE WATERHOUSE LLP
Dallas, Texas
January 26, 1998
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of our report dated March 2, 1998, except for
Note 15, as to which the date is August 6, 1997 and Note 16, as to which the
date is January 26, 1998, relating to the financial statements of Pegasus
Systems, Inc. (formerly the Hotel Industry Switch Company in 1994) and our
report dated April 4, 1995, except for Note 12, as to which the date is August
21, 1995, relating to the financial statements of the Hotel Clearing
Corporation, which appear in the Prospectus of Pegasus Systems, Inc. We also
consent to the application of such reports to the Financial Statement Schedules
for the years ended December 31, 1993, 1994 and 1995 listed under Item 16(b) of
this Registration Statement when such schedules are read in conjunction with the
financial statements referred to in our reports. The audits referred to in such
reports also include these schedules. We also consent to the references to us
under the headings "Experts" and "Selected Financial Data" in such Prospectus.
However, it should be noted that Belew Averitt LLP has not prepared or certified
such "Selected Consolidated Financial Data".
Belew Averitt LLP
Dallas, Texas
January 26, 1998
